CRIMINAL Flashcards
What classification of offence is murder?
Indictable-only
Summary only
Either-way
Indictable-only
This is the correct answer. Indictable-only offences like murder are the most serious offences.
Which one of the following best describes the definition of crime?
Public morals
Public wrongs
Immoral behaviour
Public wrongs
This is the correct answer. Public wrongs are society’s interpretation of right and wrong behaviour.
Which one of the following best describes the objectives of criminal law?
To punish and deter
To sue the other party
Resolve disputes between the parties
To punish and deter
This is the correct answer. These are two possible objectives of criminal law, others include rehabilitation and protection of the public.
Which of the following is not a crime?
Marital rape
Extra marital sex
Inflicting grievous bodily harm
Extra marital sex
Correct- this is not a crime. We used this example to illustrate the difference between what some people might consider immoral and a crime.
Can the same action result in criminal and civil liability?
Yes
No
Yes
Correct- the example we gave was that the crime of battery can also be a tort of trespass to the person.
Which of the following best describes the usual burden and standard of proof in criminal law?
The burden of proof is on the prosecution and the standard is beyond doubt
The burden of proof is on the defence and the standard is beyond reasonable doubt
The burden of proof is on the prosecution and the standard is on the balance of probabilities
The burden of proof is on the defence and the standard is on the balance of probabilities
The burden of proof is on the prosecution and the standard is beyond reasonable doubt
The burden of proof is on the prosecution and the standard is beyond reasonable doubt
Correct. On rare occasions (e.g. the defence of diminished responsibility) the burden shifts to the defence and when this happens the standard is on the balance of probabilities.
Which one of the following best describes what criminal liability is concerned with?
Sentencing offenders
Allegation, trial and conviction
The criminal justice system
Criminal offences and legal analysis
This is the correct answer. Criminal liability is concerned with identifying criminal offences then applying knowledge of the elements of criminal offences to the specific facts.
Which one of the following elements is not part of the criminal liability equation?
Motive
Mens rea
Absence of a valid defence
Actus reus
Motive
This is the correct answer. Motive is not required for criminal liability (Chandler v DPP).
The Theft Act 1968, s 1 provides:
‘A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.’
What is the actus reus of the offence of theft?
Property, belonging to another
Appropriates, property, intention of permanently depriving
Dishonestly, appropriates, property
Appropriates, property, belonging to another
Dishonestly, intention of permanently depriving
Appropriates, property, belonging to another
This is the correct answer. These actus reus elements all have specific meanings defined in statute and case law.
The Criminal Damage Act 1971, s 1(1) states:
‘A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.’
What is the actus reus of the offence of basic criminal damage?
Intending or being reckless
Intending or being reckless as to destroying or damaging property belonging to another
Destroys, damages, property
Destroys, damages, property, without lawful excuse
Destroys, damages, property, belonging to another, without lawful excuse
Destroys, damages, property, belonging to another, without lawful excuse
Destroys, damages, property, belonging to another, without lawful excuse
Which of the following is the definition of a result crime?
Require that the conduct of the defendant causes a particular consequence
Require certain acts to have been committed
Require a guilty action or omission
Require a legal obligation to act which if breached could result in criminal liability
Require the need for some particular surrounding circumstance
Require that the conduct of the defendant causes a particular consequence
This is the correct answer. Examples of result crimes include murder and assault occasioning actual bodily harm.
Result crimes relate to what aspect of the criminal liability equation?
Strict liability
Mens rea
Actus reus
Absolute liability
Absence of a valid defence
Actus reus
This is the correct answer. Whether the defendant has caused a particular result is a question of actus reus.
Which of the following is the test of factual causation?
The defendant’s act need not be the only cause of the prohibited consequence
The consequence must be caused by the defendant’s culpable act
The defendant’s act must be the ‘substantial’ cause of the prohibited harm
‘But for’ the acts or omissions of the defendant, the relevant consequence would not have occurred in the way that it did
The defendant’s act must be a cause which is more than de minimis, more than minimal
‘But for’ the acts or omissions of the defendant, the relevant consequence would not have occurred in the way that it did
This is the correct answer. Sometimes this is referred to as the ‘but for’ test of factual causation.
Which one of the following is a key authority for the test of factual causation?
R v Hughes
R v White
R v Cheshire
R v Cato
R v Benge
This is the correct answer. This case is the key authority for the ‘but for’ case.
Which one of the following is a key authority for the principle of legal causation that the defendant’s act must be the ‘substantial’ cause of the prohibited harm?
R v White
R v Dyson
R v Hughes
R v Marchant
R v Benge
R v Hughes
This is the correct answer. The case clarified that the defendant’s act need not be the only or the principal cause, just more than de minimis.
The defendant punches the victim and while most people would have sustained a bruise, the victim dies due to having brittle bones.
Which one of the following describes the legal causation issue?
Acts of a third party
Thin skull rule
Acts of the defendant
Poor medical treatment
Acts of the victim
Thin skull rule
This is the correct answer. The seriousness of an attack escalating due to the victim’s pre-existing medical condition is covered by the thin skull rule (R v Blaue).
Which of the following correctly describes whether acts of a third party will break the chain of causation?
Acts of a third party can break the chain of causation when free, deliberate and informed
Acts of a third party can break the chain of causation when free and deliberate
Acts of a third party can break the chain of causation when free
Acts of a third party cannot break the chain of causation
Acts of a third party can break the chain of causation when free, deliberate and informed
This is the correct answer. This reflects the legal position following the case of R v Pagett.
A woman disagrees with a man. Enraged, the woman grabs a heavy object and uses it to hit the man several times with full force to the head. The man is taken to hospital for treatment. The doctor misreads the man’s notes and administers the wrong medication. The man suffers an allergic reaction and dies from his injuries.
Which of the following statements best explains the woman’s actus reus?
The woman may not satisfy the actus reus, as the doctor’s misreading of the notes was so potent in causing the man’s death and so independent of the woman’s actions that it breaks the chain of causation.
The woman may not satisfy the actus reus, as the man’s medical condition means that he died when an ordinary person would have survived which breaks the chain of causation.
The woman may not satisfy the actus reus, as he was not aware of the man’s medical condition when he attacked him which breaks the chain of causation.
The woman will satisfy the actus reus, as the courts never consider the chain of causation broken due to negligent medical treatment such as the doctor misreading the man’s notes.
The woman may satisfy the actus reus, as the doctor’s misreading of the notes were not so potent in causing the man’s death and so independent of the woman’s actions that it breaks the chain of causation.
The woman may satisfy the actus reus, as the doctor’s misreading of the notes were not so potent in causing the man’s death and so independent of the woman’s actions that it breaks the chain of causation.
This is the correct answer, as the man dies from the injuries the woman inflicted. The doctor giving the man the wrong medication does not render the woman’s actions insignificant, R v Cheshire.
A woman starts to look after her elderly uncle who is bed-bound and unable to feed himself. The woman goes on holiday and forgets to feed her uncle and he dies of starvation.
Which one of the following best describes the legal duty to act the woman may be under?
Special relationship
Voluntarily assuming responsibility
Contract
Creating a dangerous situation
Public office
Voluntarily assuming responsibility
This is the correct answer. The legal duty of voluntarily assuming responsibility may arise in this case, see R v Instan and R v Stone & Dobinson cases.
A parent fails to feed her child. The child dies of starvation.
Which one of the following best describes the legal duty to act the parent may be under?
Voluntary assumption of responsibility
Special relationship
Public office
Contract
Creating a dangerous situation
Special relationship
Correct. This reflects the position in common law and statute.
Which of the following best describes whether you can you be criminally liable for a failure to act?
You cannot generally be criminally liable for a failure to act unless you have a legal duty to act
You can be criminally liable for a failure to act
You cannot be criminally liable for a failure to act
You cannot generally be criminally liable for a failure to act unless you have a legal duty to act
Correct. This reflects the general rule in R v Smith and the legal duties to act defined by common law and statute.
Which of the following describes the concept of mens rea?
Mens rea relates to the defendant’s guilty mind
Mens rea relates to the defendant’s guilty action
Mens rea relates to the defendant’s guilty failure to act
Mens rea relates to the defendant’s guilty mind
Correct. The defendant’s guilty mind could be via intention or recklessness for example.
The Theft Act 1968, s 1 provides:
‘A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.’
What is the mens rea of the offence of theft?
Dishonestly, appropriates, property
Property, belonging to another
Appropriates, property, belonging to another
Dishonestly, intention of permanently depriving
Appropriates, property, intention of permanently depriving
Dishonestly, intention of permanently depriving
This is the correct answer. These mens rea elements all have specific meanings defined in statute and case law.
The Criminal Damage Act 1971, s 1(1) states:
‘A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.’
What is the mens rea of the offence of basic criminal damage?
Destroys, damages, property
Destroys, damages, property, belonging to another
Without lawful excuse, destroys, damages, property
Intending or being reckless
Intending or being reckless as to destroying or damaging property belonging to another
Intending or being reckless as to destroying or damaging property belonging to another
This is the correct answer. The mens rea elements of basic criminal damage are further defined in case law.
Which one of the following statements is best definition of mens rea?
Mens rea is when the defendant desires the consequences of his acts.
Mens rea is the defendant’s guilty act or omission.
Mens rea is when the defendant acts with motive.
Mens rea is when the defendant is morally guilty.
Mens rea is the defendant’s guilty mind.
Mens rea is the defendant’s guilty mind.
This is the correct answer, it can mean any of the mental elements required for a particular crime.
Which one of the following statements is the best definition of when a defendant intends a result?
A defendant intends a result when it is the purpose of his act.
A person has direct intent if they have a reason for their actions.
A defendant intends a result when it is his motive.
A defendant intends a result when he desires it.
A defendant intends a result when he is malicious.
A defendant intends a result when it is the purpose of his act.
This is the correct answer according to the case of R v Moloney which suggests that the ordinary meaning of intention should be used.
What is the correct direction to be given to a jury regarding oblique intention?
The jury are entitled to find oblique intent when the defendant foresees an event occurring.
The jury are not entitled to infer oblique intention unless the event is a natural consequence of the defendant’s voluntary act and the defendant foresees it as such.
The jury are entitled to find oblique intent when the event is a natural consequence of the defendant’s voluntary act.
The jury are not entitled to infer oblique intention unless they are sure that death or serious injury was a virtual certainty as a result of the defendant’s action and the defendant appreciated that.
The jury are not entitled to find oblique intention unless they are sure that death or serious injury was a virtual certainty as a result of the defendant’s action and the defendant appreciated that.
The jury are not entitled to find oblique intention unless they are sure that death or serious injury was a virtual certainty as a result of the defendant’s action and the defendant appreciated that.
This is the correct answer, according to the case of R v Woollin.
Which part of the criminal liability equation does recklessness relate to?
Recklessness is a concept associated with specific intent
Recklessness is a concept associated with the actus reus
Recklessness is a concept associated with oblique intent
Recklessness is a concept associated with the mens rea
Recklessness is a concept associated with the mens rea
This is the correct answer, it is one of the ways in which the prosecution can prove the mens rea of a crime of basic intent.
Which of the following cases contains the current test of recklessness?
R v Maloney
R v G
R v Woollin
R v Cunningham
R v G
Which of the following best describes the concept of recklessness?
A person acts recklessly when he is aware of a risk, goes ahead anyway and in the circumstances known to him, it was an unreasonable risk to take
A person acts recklessly when he is aware of a risk, goes ahead anyway and it is unreasonable by the standards an ordinary person to take that risk
A person acts recklessly when he is told not to do something but decides nevertheless to embark on that course of action
A person acts recklessly when he is aware of a risk, goes ahead anyway and in the circumstances known to him, it was an unreasonable risk to take
Correct. This reflects the test of recklessness in R v G.
What is the name of the principle that the defendant must have the relevant mens rea for the offence at the precise moment when D commits the actus reus?
Coincidence
One transaction
Continuing act
Coincidence
Correct. The courts have interpreted this principle widely using the continuing act theory and the one transaction principle.
Which of the following statements correctly describes the operation of the doctrine of transferred malice?
The doctrine of transferred malice operates to allow the mens rea against X to be transferred and joined with the actus reus that causes the harm to Y.
The doctrine of transferred malice operates to allow the actus reus against X to be transferred and joined with the mens rea of the offence that relates to harm suffered by Y.
The doctrine of transferred malice operates to allow the suspect to be charged with an offence that he did not intend to do.
The doctrine of transferred malice operates to allow the mens rea against X to be transferred and joined with the actus reus that causes the harm to Y.
Correct. This reflects the operation of the doctrine as described in key cases such as R v Latimer.
In which one of these scenarios would the defendant be held criminally liable?
A defendant makes a mistake about civil law negating the mens rea of the offence
A defendant mistakenly believes an umbrella is theirs
A defendant does not know they are breaking the law
A defendant does not know they are breaking the law
Correct. Ignorance of the law is no excuse, see the case of Bailey for further details.
Which of the following is a special and partial defence?
Loss of control
Consent
Intoxication
Self-defence
Loss of control
Correct. Loss of control is a special defence because it is available for the charge of murder only. Loss of control is a partial defence because if successful, D will be convicted of voluntary manslaughter rather than murder.
Which question will the court ask to establish whether an involuntarily intoxicated defendant can avoid criminal liability?
Did D form the mens rea even though intoxicated?
Was D intoxicated when committing the offence?
Would D have foreseen the risk of harm if sober?
Did D form the mens rea even though intoxicated?
Correct. This is the question the court will ask in situations where D was drugged without consent. See the case of Kingston for example.
When can the defence of self-defence be used?
Protection of yourself and/ or another
Protection of yourself
Protection of yourself, another and/ or property
Protection of yourself, another and/ or property
Correct. If successful the defendant will be acquitted.
Which of the following best describes the definition of murder?
Unlawful killing of a human being under the Queen’s Peace with malice aforethought
Unlawful killing of a human being under the Queen’s Peace
Unlawful killing
Intentionally killing another person
Unlawful killing of a human being under the Queen’s Peace with malice aforethought
This is the correct answer. This is the definition of murder that Lord Coke provided.
In which of the following situations is it most likely to be unlawful to kill another human being?
Killing enemy soldiers in battle
Advancement of justice
Self-defence
Killing for revenge
Killing for revenge
This is the correct answer. This is not one of the situations in which it can be lawful to kill another human being.
To be criminally liable for murder you must kill a human being.
Which of the following are not considered a human being?
A person born alive and capable of independent life
A corpse
A child fully expelled from the mother’s body but still attached by the umbilical cord
A child fully expelled from the mother’s body and born alive
A corpse
This is the correct answer. It is not possible to murder a corpse. See also the case of AG-Ref (No 3 of 1994) [1998] AC 245 for another case in which there was held to be no murder.
Which one of the following statements correctly defines malice aforethought?
Malice aforethought means an intention to cause grievous bodily harm.
Malice aforethought means intentionally or recklessly cause the death of another.
Malice aforethought means an intention to kill.
Malice aforethought means an intention to kill or an intention to cause grievous bodily harm.
Malice aforethought means an intention to kill or an intention to cause grievous bodily harm.
This is the correct answer. The case of R v Vickers clarified that the mens rea for murder, malice aforethought, can mean express or implied malice.
A man spots a drugs dealer from whom he has stolen a large supply of drugs, in the High Street. Hoping the drugs dealer has not seen him, the man slips into an shop and runs up the stairs to the first floor. The drugs dealer has seen the man, so follows him into the shop and up the stairs. The drugs dealer approaches the man with a large knife, shouting ‘you will learn not to mess with me.’ Cornered, the man jumps out of the window. The man breaks both legs on the pavement below. The actus reus for the offence with which the drugs dealer is charged requires him to have caused serious harm.
Which of the following best explains how the jury will decide whether the drugs dealer has the actus reus for the offence?
If the jury decide that what the man did was so daft and unexpected that no reasonable person could have foreseen it, then the drug dealer will not have caused the man serious harm
If the jury decide that what the man did was so independent of the drug dealer’s acts, and in itself so potent in causing serious harm, then the drug dealer will not have caused the man serious harm
If the jury decide that what the man did was free, deliberate and informed, then the drug dealer will not have caused the man serious harm
If the jury decide that what the man did was daft, unexpected and unreasonable, then the drug dealer will not have caused the man serious harm
If the jury decide that the drug dealer intended to cause the man serious harm with his knife, then the drug dealer will have caused the man serious harm, even though it occurred in a different way than the drug dealer intended
If the jury decide that what the man did was so daft and unexpected that no reasonable person could have foreseen it, then the drug dealer will not have caused the man serious harm
Correct. The man’s two broken legs constitute serious harm. In order to say that the drug dealer caused the man’s serious harm, he must be the factual and legal cause of that harm. The key issue here is one of legal causation- whether the drug dealer’s act is the operating cause of the man’s broken legs or whether the chain of causation has been broken by the man jumping out of the window (a ‘fright and flight’ case). The question to consider is from R v Roberts which was approved by the Court of Appeal in R v Williams and Davies. Was the victim’s act reasonably foreseeable or was it so daft and unexpected that no reasonable person could have foreseen it?
The other answers were incorrect because whether:
- ‘daft, unexpected and unreasonable’- this is not the precise test approved by the Court of Appeal.
- the drug dealer intended to cause serious harm is a mens rea rather than an actus reus issue.
- what the man did was so independent of the drug dealer’s acts, and in itself so potent in causing serious harm- this is the test applied when considering whether medical negligence has broken the chain of causation.
- what the man did was free, deliberate and informed- this is the test applied when considering whether the acts of a third party have broken the chain of causation.
A brother and sister have a fight, during which the brother is knocked unconscious. The sister runs off. Soon after, a gang member appears and stabs the brother in the chest. He dies from the stab wound.
Has the sister caused her brother’s death, as required for the actus reus of murder?
She has caused her brother’s death because there can be more than one cause
She has not caused her brother’s death because the gang member’s act is a free, deliberate and informed act
She has not caused her brother’s death because the gang member’s action was not reasonably foreseeable
She has caused her brother’s death because but for the sister rendering her brother unconscious, the gang member would not have been able to stab him
She has caused her brother’s death as she must take her brother as she finds him, with a gang member that wants to kill him
She has not caused her brother’s death because the gang member’s act is a free, deliberate and informed act
Correct
Correct. To be the cause of her brother’s death she must be the factual and legal cause. This question is about legal causation and whether the sister is the operating cause of her brother’s death. The chain of causation is broken by the act of the gang member. It was held in R v Pagett that the chain of causation will be broken by a free, deliberate and informed act of a third party.
The other answers were incorrect.
The ‘reasonably foreseeable’ test is the one applied when considering whether acts of the victim will break the chain of causation.
The answers that stated the sister caused her brother’s death overlooked whether the gang member’s act broke the chain of causation:
· While the sister is the factual cause of her brother’s death, she must also be the legal cause.
· It is true that the sister’s act need not be the only cause of her brother’s death, it is enough that it is a substantial cause. However, the sister’s act must also be an operating cause.
· While the sister must take her brother as she finds him, the thin skull rule tends to be applied to issues such as a pre-existing infirmity or peculiarity.
A man lives alone and is reliant upon the care provided to him by his niece following an injury at work he suffered a year ago. The niece has cared for the man throughout this year. This includes bringing the man food and collecting his medications from the pharmacy. The niece accepts money from her uncle for these items but does not accept his offer of payment for her time in doing this. The niece becomes very busy at work and does not call on her uncle as often as she used to, which means that the man only receives food irregularly and has been without medication for a week. One night the niece notices that her uncle has become unwell and assists him into bed to rest. The man dies in the night.
Which of the following best describes the niece’s liability for the man’s death?
The niece may be liable for the man’s death as she had voluntarily assumed a duty of care towards him.
The niece is liable for the man’s death as she has created a dangerous situation in leaving him without medical assistance.
The niece is not liable for the man’s death because there can be no liability for an omission.
The niece is liable for the man’s death as she has a contractual duty to her uncle.
The niece may be liable for the man’s death as she had a special relationship to him.
The niece may be liable for the man’s death as she had voluntarily assumed a duty of care towards him.
Correct. There is generally no duty to act to prevent harm, R v Smith (William). However, the niece has voluntarily assumed a duty of care towards the man by caring for him for the last year and therefore may be liable for his death, R v Stone and Dobinson. While the other options might sound plausible, they are each incorrect. A defendant can be liable for an omission if they have a legal duty to act. The relationship between an uncle and a niece is likely to not be sufficiently proximate for a duty of care to arise by virtue of the special relationship duty. Although the niece accepts money to reimburse her for the items she collects, she has refused her uncle’s payment for her time and so there is no indication of a contract of employment. Finally, this scenario is more analogous to the voluntary assumption of a duty of care cases, than creating a dangerous situation as illustrated by the case of Miller for example.
A woman crosses a red light on her bicycle and accidentally hits a pedestrian. The pedestrian’s neck is broken and it is doubtful whether he will live. The pedestrian claims damages from the woman. The woman’s solicitor tells her she was negligent and will be liable for several million pounds in damages if the pedestrian survives. If he dies she will have to pay a few thousand pounds as the pedestrian has no dependents. The woman is not covered by insurance so will lose her house and all her savings if the pedestrian survives. She is at an age where she will not be able to buy another house or save much for her retirement. She begins to formulate a plan to smother the pedestrian. Before she can take any action, the pedestrian dies as a result of the injuries sustained in the collision and the woman is pleased he has died.
Which of the following best describes the woman’s liability for murder?
She is guilty because at the time of the pedestrian’s death the woman had the mens rea of murder
She is guilty because there is coincidence of actus reus and mens rea by virtue of the continuing act theory
She is not guilty because she does not have the mens rea of murder given she did not put her plan into action
She is guilty because there is coincidence of actus reus and mens rea by virtue of this being a series of acts that form one transaction
She is not guilty because there is no coincidence of actus reus and mens rea
She is not guilty because there is no coincidence of actus reus and mens rea
Correct
Correct. The actus reus took place at the time of the act (hitting the pedestrian with the bicycle) which ultimately caused death. The mens rea for murder is intention or kill or intention to cause grievous bodily harm. At the time of hitting the pedestrian, the woman did not have the mens rea of murder.
The other answers were incorrect. The continuing act theory cannot be used as the woman’s act of hitting the pedestrian had finished long before the woman intended the pedestrian’s death. The series of acts theory cannot be used as this is not a case where the woman initially acts with the mens rea and a later act designed to cover up the first act causes death, as in R v Thabo Meli. The woman had only done one act and she did not have the mens rea at that time. Formulating a plan to smother the pedestrian constituted the mens rea of murder, intention to kill, regardless of whether she took any steps to put her plan into action. The actus reus did not take place at the time of the pedestrian’s death.
A woman owns a coffee shop in her local town. A new coffee shop has been opened at the other end of the high street which is affecting the woman’s business. Late one night the woman goes to the new coffee shop with a can of petrol. A light shows from a first floor window above the coffee shop and she can see the shadow of a person in that light. However, she is determined to destroy the new coffee shop. She breaks a window, pours petrol through the broken window and then throws in a lighted rag. The man living in the flat above the coffee shop dies in the ensuing fire.
Which of the following question(s) will best assist the jury in determining whether the woman is liable for murder?
Was it virtually certain that someone would die or suffer grievous bodily harm as a result of the defendant’s act and would a reasonable person appreciate that?
Was it the woman’s aim or purpose to kill or cause grievous bodily harm?
Was it virtually certain that someone would die or suffer grievous bodily harm as a result of the defendant’s act?
Was it virtually certain that someone would die or suffer serious harm as a result of the woman’s act and did the woman appreciate that?
Was the woman aware of the risk that someone would die or suffer serious harm as a result of her actions and in the circumstances known to her, was it an unreasonable risk to take?
Was it virtually certain that someone would die or suffer serious harm as a result of the woman’s act and did the woman appreciate that?
Correct
Correct. The woman’s direct intention, her aim and purpose, is to destroy the new coffee shop. The jury will be asked to consider oblique intent and this is the test for oblique intent from R v Woollin.
The other answers were incorrect as:
· Misstated the R v Woollin questions regarding oblique intention.
· Applied direct intention to kill or cause grievous bodily harm when this would not be the best question to help determine the woman’s liability for murder in this case.
· Applied the test of recklessness and you cannot commit murder recklessly.
If someone is acting under diminished responsibility when they unlawfully kill another human being under the Queen’s peace with intention to kill, what will the defendant be convicted of?
Voluntary manslaughter
Diminished responsibility
Murder
Involuntary manslaughter
Voluntary manslaughter
Correct, this reflects the position in section 2(3) Homicide Act 1957 (as amended).
Which of the following best describes the sentencing powers available to a judge in respect of a defendant who is found to have killed under diminished responsibility?
Sentencing discretion
Mandatory life sentence
Acquittal
Sentencing discretion
Correct. The judge will have discretion in sentencing which will mean that mitigating factors can be taken into consideration when sentencing the defendant.
Medical evidence is helpful to which aspect of the diminished responsibility defence?
Provide an explanation for D’s conduct
Abnormality of mental functioning
Recognised medical condition
Substantially impaired D’s ability to do one or more of the following: understand the nature of D’s conduct, form a rational judgment and/ or exercise self-control
All four aspects
All four aspects
Correct. This reflects the position in R v Brennan that all four of the elements of the defence are concerned with psychiatric matters.
What type of defence is loss of control?
It is a full defence
It is a general defence
It is not a defence at all
It is more of an exception to murder, rather than a defence
It is a partial defence
It is a partial defence
Correct, this reflects the position in s 54(7) Criminal Justice Act 2009. If the defence of loss of control is successful, the defendant will not be acquitted but convicted of voluntary manslaughter rather than murder.
Which one of the following is a qualifying trigger for loss of control?
The defendant’s loss of control was attributable to a fear of violence
The defendant’s loss of control was attributable to a fear of serious violence
The defendant’s loss of control was attributable to a fear of actual bodily harm
The defendant’s loss of control was attributable to a fear of assault
The defendant’s loss of control was attributable to a fear of serious violence
Correct. This reflects the position in s 54 and s 55 Criminal Justice Act 2009.
For the third element of the loss of control defence, who is the defendant’s conduct compared to?
The reaction of the reasonable person in the circumstances of the defendant
The reaction of a normal person in the circumstances of the defendant
The reaction of a normal person
The reaction of a normal person in the circumstances of the defendant
Correct, this broadly reflects the position in s 54(1)(c) Criminal Justice Act 2009.
Which of the following is correct?
D can rely on loss of control if charged with any offence
D can rely on loss of control if charged with attempted murder
D can rely on loss of control if charged with murder
D can rely on loss of control if charged with murder
Correct. D cannot rely on loss of control if D is charged with attempted murder or any other offence.
Which of the following is a limitation of the loss of control defence?
The defence cannot be used if it stems from a considered desire for revenge
The defence cannot be used if it stems from a desire for revenge
The defence cannot be used if D uses violence first
The defence cannot be used if it stems from a considered desire for revenge
Correct. This reflects the position in section 54(4) Coroners and Justice Act 2009.
When will sexual infidelity prevent a defendant from being able to rely on the anger trigger?
When there are other factors that caused D to lose self-control for the purposes of a qualifying trigger along with sexual infidelity
When sexual infidelity is in the background
When the thing said/ done constituted sexual infidelity
When the thing said/ done constituted sexual infidelity
Correct. This reflects the position in section 55(6)(c) CJA 2009 and Clinton.
A defendant is charged with murder but is intoxicated at the time. When considering the defendant’s criminal liability at what point in your analysis will you take into account the intoxication?
Causation
Mens rea
Unlawful
Mens rea
Correct. The question you will ask is even though intoxicated, did D form the mens rea of intention to kill or intention to cause grievous bodily harm?
A defendant is a drug addict who kills under a loss of control having been taunted about his addiction by the victim. The defendant was intoxicated at the time. When considering the defendant’s criminal liability at what point in your loss of control analysis will you take into account the addiction?
The normal person test
Loss of self-control
The anger trigger and the normal person test
The anger trigger
The anger trigger and the normal person test
Correct. D’s drug or alcohol addiction can be taken into account in assessing the magnitude of the qualifying anger trigger if D was taunted about the addiction. If D is addicted to drugs or alcohol this will be a characteristic given to the normal person but the normal person will still have normal levels of tolerance and self-restraint and be sober, Asmelash.
In which of the following situations will D not be able to rely on diminished responsibility?
When D has an abnormality of mental functioning and is voluntarily intoxicated
When D is voluntarily intoxicated and has no abnormality of mental functioning
When D’s abnormality of mental functioning arises from alcohol dependency syndrome
When D is voluntarily intoxicated and has no abnormality of mental functioning
Correct. This represents the position in Dowds.
A man has an argument with his partner and punches her in the shoulder. She falls over and hits her head on the edge of a table, sustaining head injuries from which she dies. He is charged with murder. He tells you that he had no intention to seriously injure her.
How would you advise the man on his criminal liability for murder?
He is not criminally liable for murder on the basis that he was acting in self-defence.
He is criminally liable for murder on the basis that, by his own account, he does have the mens rea.
He is not criminally liable for murder on the basis that he has the defence of diminished responsibility.
He is not criminally liable for murder on the basis that, by his own account, he does not have the mens rea.
He is not criminally liable for murder on the basis that he has the defence of loss of control.
He is not criminally liable for murder on the basis that, by his own account, he does not have the mens rea.
Correct. The mens rea for murder is an intention to kill or cause serious harm, R v Vickers. The man says he did not have either of these states of mind so he should plead not guilty to murder.
The other options were incorrect because:
· Punching his partner in the shoulder will not equate to serious harm.
· There is nothing in the facts to suggest, for example, that the man:
- could rely on the fear or anger qualifying trigger for the purposes of loss of control.
- was acting to protect himself, honestly believing that force was necessary for the purposes of self-defence.
- was suffering from a recognised medical condition for the purposes of diminished responsibility.
A man spends the evening drinking a lot of alcohol with friends. At the end of the evening, while he is waiting for a taxi, a woman pushes in front of him in the queue. Furious, he deliberately pushes her in front of a passing car which crashes into her. She dies of her injuries.
Which of the following best describes why the defence of diminished responsibility is not available to the man?
It was necessary for the man to have been involuntarily intoxicated.
Voluntary intoxication is not, on its own, capable of being relied upon to found this defence.
Voluntary intoxication does not provide an explanation for the man’s actions.
It was necessary for the man to have been suffering from an inability to resist the urge to drink.
Voluntary intoxication doesn’t substantially impair the man’s ability to exercise self-control.
Voluntary intoxication is not, on its own, capable of being relied upon to found this defence.
Correct
Correct. We are told that the man has spent the evening drinking a lot of alcohol. The case of Dowds makes it clear that this, on its own cannot give rise to a defence of diminished responsibility.
The other options were incorrect because:
· Section 2(1B) Homicide Act 1957 states that an abnormality of mental functioning provides an explanation for D’s conduct if it causes or is a significant contributory factor in causing, D to carry out that conduct. The high amount of alcohol the man drank with friends is likely to have caused or been a significant contributory factor in causing him to push the woman in front of the passing car.
· It is likely that the man’s voluntary intoxication was the reason why he was not able to exercise self-control when the woman pushed in front of him in the queue. However, in order to rely on diminished responsibility, the man needs to satisfy all of the requirements in section 2(1) Homicide Act 1957, including an abnormality of mental functioning which arose from a recognised medical condition. There is no recognised medical condition on the facts.
· It is possible for the man to rely on the defence of diminished responsibility, even he was not suffering from alcohol dependency syndrome, R v Dietschmann.
· Being voluntarily intoxicated does not preclude the man from using the defence. A defendant might, at the time of the killing suffer from both an abnormality of mental functioning and from the effect of alcohol taken before the killing, R v Dietschmann.
A woman loses her temper very easily. She has been going to anger management classes in an attempt to overcome this failing, but they have not been working. One day she returns from work to find her boyfriend in a passionate embrace with her 15-year-old daughter. She picks up a heavy doorstop and hits him repeatedly on the head. He dies. She is pleading the defence of loss of control.
What effect would the woman’s short temper have on the requirement that she must have killed as a result of a loss of self-control?
She cannot use the defence of loss of control as she does not have a normal degree of tolerance and self-restraint
She can use the defence of loss of control as a loss of temper is a loss of self-control
She can use the defence of loss of control as a loss of temper is only considered at the third requirement, the normal person test
She cannot use the defence of loss of control as she will be unable to prove beyond reasonable doubt that she did not act out of a loss of temper
She can use the defence of loss of control if she killed as a result of more than a loss of temper but loss of self-control
She can use the defence of loss of control if she killed as a result of more than a loss of temper but loss of self-control
Correct. This answer reflects the position in R v Richens.
The other answers are incorrect because:
· A loss of temper is not the same as a loss of self-control.
· The third requirement of the loss of control defence is that a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or a similar way to D. This means that the woman’s short temper will not be a characteristic given to the normal person, but it does not preclude her from using the defence of loss of control.
· The prosecution has the burden of proof to prove the woman acted from a loss of temper rather than a loss of self-control, s 54(5) Coroners and Justice Act 2009.
· Factors such as a loss of temper which go to the defendant’s capacity for tolerance and self-restraint are considered in the third requirement of the defence, where they may be excluded if they have not formed part of the qualifying trigger. However, loss of temper will be considered in the first requirement of the defence, that she must have killed as a result of a loss of self-control.
A man lives in an area where there has been a spate of burglaries in which violence has been used against the occupiers. He is very afraid of being the next victim, so he acquires a shotgun which he keeps by his bed. Early one morning, he hears the sound of breaking glass coming from downstairs. He picks up the shotgun and makes his way quietly downstairs. He sees that the window in the front room has been broken and a shadowy figure is moving about. He points the shotgun at the figure who, seeing him, dashes to the window and begins to climb out. Unable to restrain himself, the man shoots and hits the figure in the back, killing him instantly. The man is charged with murder.
Why can’t the man rely on the defence of loss of control?
The man acted in a considered desire for revenge
The man has not lost control as a result of a qualifying trigger
The man didn’t lose self-control
The man acted in self-defence
The man fails the normal person test
The man fails the normal person test
Correct. A person with a normal degree of tolerance and self-restraint in his circumstances would not have reacted in the same or a similar way, s 54(1)(c). As the victim is clearly intent on running away, a person with a normal degree of tolerance and self-restraint in his circumstances would not have shot him in the back.
The other answers were incorrect because:
· The facts state that the man was ‘unable to restrain himself’ which is a loss of self-control according to R v Richens.
· While acting in a considered desire for revenge is a reason why loss of control is not available (s 54(4)), there is no suggestion of this on the facts. Even if the man shot the person in the back to take revenge for breaking the window and entering his house, it was not ‘considered.’
· The man could potentially rely on both the ‘fear’ and the ‘anger’ triggers (sections 55(3) and 55(4) Coroners and Justice Act 2009). The man fears serious violence given the spate of violent burglaries. The man also reacted to a thing done (the broken window and figure entering his house) which could be argued to constitute circumstances of an extremely grave character which caused him to have a justifiable sense of being seriously wronged.
· In order to rely on self-defence, one of the requirements is that the level of force the man uses must be reasonable and in the case of ‘householders’, reasonable means not grossly disproportionate, by reference to the circumstances as the defendant believed them to be. A fatal force to the person leaving the man’s house is unlikely to be considered a reasonable level of force. See s 76 Criminal Justice and Immigration Act 2008.
week 2
incorrect
The man has not lost control as a result of a qualifying trigger
Incorrect. The man could potentially rely on both the ‘fear’ and the ‘anger’ triggers (sections 55(3) and 55(4) Coroners and Justice Act 2009). The man fears serious violence given the spate of violent burglaries. The man also reacted to a thing done (the broken window and figure entering his house) which could be argued to constitute circumstances of an extremely grave character which caused him to have a justifiable sense of being seriously wronged.
Review your materials on loss of control, in particular s 54(1)(c) Coroners and Justice Act 2009
Incorrect. While acting in a considered desire for revenge is a reason why loss of control is not available (s 54(4)), there is no suggestion of this on the facts. Even if the man shot the person in the back to take revenge for breaking the window and entering his house, it was not ‘considered.’
Review your materials on loss of control, in particular s 54(1)(c) Coroners and Justice Act 2009.
The defendant was a glue sniffer who was high on glue. The victim taunted the defendant. As well as other abuse, the victim told the defendant that he was a useless character who had wasted his life and his talents due to his addiction. This hurt, as the defendant knew it was true. As a result of this abuse and the other taunts, the defendant lost his self-control and killed the victim.
How will the defendant’s addiction to glue and the fact that he is high on glue affect a defence of loss of control?
The defendant’s addiction to glue will not be taken into account at all but he can still use the defence of loss of control.
The defendant’s addiction to glue and the fact he is high on glue will not be a characteristic given to the normal man, as this reduces his self-restraint.
The defendant’s addition to glue will be taken into account as a qualifying trigger but will not be a characteristic given to the normal man.
The defendant’s addiction to glue and the fact he is high on glue will preclude him from using the defence of loss of control.
The defendant’s addiction to glue will be taken into account as a qualifying trigger and will be a characteristic given to the normal man. However, the normal man will not be high on glue.
The defendant’s addiction to glue will be taken into account as a qualifying trigger and will be a characteristic given to the normal man. However, the normal man will not be high on glue.
Correct. This reflects the position in R v Asmelash. The defendant’s addition to glue and the effect it has had on his life will be taken into account as a qualifying trigger under s 54(1)(b) Coroners and Justice Act 2009. It will also be a characteristic given to the normal man when the jury considers s 54(1)(c). However, the normal man will have normal levels of tolerance and self-restraint and will not be high on glue.
The other answers may have sounded plausible but were incorrect.
Which of the following is not defined in the Criminal Damage Act 1971?
Belonging to another
Damage
Property
Damage
Correct. Damage is defined in case law but property and belonging to another are defined in sections 10(1) and 10(2) respectively.
Which of the following is property for the purposes of the Criminal Damage Act 1971?
Tamed animals
Information
Mushrooms growing wild
Tamed animals
Correct. This reflects the wording of s 10(1)(a) which states that property includes wild creatures that have been tamed. Mushrooms growing wild are excluded by s 10(1)(b) and information was held not to be property for the purposes of the CDA 1971 in the case of R v Whitely.
If a person commits an offence of basic arson, how will the charge read?
Section 1(3) Criminal Damage Act 1971
Section 1(1) Criminal Damage Act 1971
Section 1(1) and s 1(3) Criminal Damage Act 1971
Section 1(1) and s 1(3) Criminal Damage Act 1971
Correct. Basic criminal damage is charged under s 1(1) and any criminal damage by fire is charged as arson under s 1(3).
To which offences do the lawful excuse defences within the Criminal Damage Act 1971 section 5(2) potentially apply?
All criminal offences
All criminal damage offences
Basic criminal damage and basic arson
Aggravated criminal damage and aggravated arson
Basic criminal damage and basic arson
Correct. This is set out in section 5(1) Criminal Damage Act 1971.
Which of the following requirements of the section 5(2)(b) lawful excuse defence is objective?
D must believe that the means of protection adopted are reasonable
The damage caused by D must be capable of protecting the property
D must act to protect property
D must believe that the property was in immediate need of protection
The damage caused by D must be capable of protecting the property
Correct. This was outlined in the case of R v Hunt and confirmed in later cases.
Mike is very proud of his car. He believes that its paintwork is being damaged by pollutants caused by a nearby factory. Mike feels that the only way to stop any further damage to his car he must get rid of the factory, so he burns it down.
Which defence, if any, could you argue on behalf of Mike?
Section 5(2)(b)- Mike believes that he must act to protect property
Section 5(2)(a)- Mike believes that the owner would have consented
None of the lawful excuse defences are arguable
Section 5(2)(b)- Mike believes that he must act to protect property
Correct. Arguably, Mike honestly believed that his car was in immediate need of protection from the factory and that the means of protection adopted were reasonable to ensure no further damage. Burning down the factory was objectively capable of protecting the property.
Which of the following are not required for aggravated criminal damage?
Destroy/ damage
Belonging to another
Property
Belonging to another
Correct. Property can belong to another or the defendant for the purposes of aggravated criminal damage or aggravated arson.
Do the lawful excuse defences in section 5(2) apply to aggravated criminal damage or aggravated arson?
No
Yes
It depends on the circumstances of the case
No
Correct. The lawful excuse defences do not apply to aggravated criminal damage or aggravated arson, s 5(1) states this.
Which of the following is part of the mens rea of aggravated criminal damage?
Danger to life must arise from the damaged property
Life must actually be endangered
Danger to life must arise from the means of damaging the property
Danger to life must arise from the damaged property
Correct. This is the principle illustrated in R v Steer. In R v Steer the danger to life was three bullets fired (the means of damaging the property) but this did not constitute aggravated criminal damage.
How many rights of the owner must be assumed to appropriate property?
None
Two or more
One
One
Correct. Any assumption by a person of the rights of an owner amounts to an appropriation (s 3(1) Theft Act 1968) and it need be just one right (R v Morris).
Can you appropriate property with the owners consent?
No
Yes
Yes
Correct- this reflects the position in R v Gomez.
Can you appropriate a valid gift?
Yes
No
Yes
Correct- this reflects the position in R v Hinks.
Karen picks blackberries from the side of the road, makes them into jam and sells the jam in aid of charity. The blackberries capable of being stolen?
False
True
True
Correct. The blackberries are growing wild, but she has picked them for sale, so they are capable of being stolen, see s 4(3) Theft Act 1968. They would belong to the owner of the land, possibly the highways authority - all land is owned by somebody. She may not be liable for theft however as she may not be dishonest.
Gloria picks wild mushrooms on her walks through the woods and uses them to cook with in her restaurant. Gloria has stolen the mushrooms.
True
False
True
Correct. Yes (assuming Gloria does not own the woods and is dishonest). The mushrooms are growing wild and she picks them for a commercial purpose, s 4(3) Theft Act 1968.
Property can belong to more than one person for the purposes of the Theft Act 1968.
False
True
True
Correct
For the purposes of the Theft Act property can belong to the owner, while at the same time belonging to someone having possession or control as per s 5(1). It can belong to the owner, while at the same time belonging to another by virtue of s 5(3) or s 5(4).
Helen shares a taxi with her friend Sally, who gets out first. Sally gives Helen money to pay for the taxi and extra money to tip the driver. Helen keeps the money she was given for the tip.
What section of the Theft Act 1968 is required for the property to belong to another?
Section 5(3)
Section 5(4)
Section 5(1)
Section 5(3)
Correct. Here the extra money is given by Sally to Helen for a particular purpose, to tip the driver.
Dan has left his shoes to be re-heeled at a shop. He takes them from the shop while the assistants back is turned without paying for them.
What section of the Theft Act 1968 is required for the property to belong to another?
Section 5(4)
Section 5(1)
Section 5(3)
Section 5(1)
Correct. The shop is in possession or control of the shoes by virtue of section 5(1). This scenario is similar to the Turner (No 2) case where D owed money to a garage for car repairs.
S5(4) creates a legal obligation to make restoration of the property got by another’s mistake.
True
False
False
This statement is false. Section 5(4) only applies when a legal obligation to make restoration exists. It then operates to make the property belong to another for the purposes of the Theft Act 1968.
Dishonesty is defined in the Theft Act 1968.
True
False
The Theft Act 1968 does not define dishonesty. However, section 2(1) Theft Act 1968 provides three circumstances of when a defendant will not be dishonest.
The Theft Act 1968 section 2 provides three situations in which an appropriation of property is not to be regarded as dishonest: belief in a right in law, another’s consent and that the owner cannot be discovered by taking reasonable steps.
What type of belief is required by the Theft Act 1968 for a defendant not to be regarded as dishonest?
Subjective- the defendant’s belief must be reasonably held
Objective- the reasonable person must be capable of believing the defendant
Subjective- the defendant’s belief must be genuinely held
Subjective- the defendant’s belief must be genuinely held
Correct. This was confirmed by the case of R v Robinson.
Which one of the following statements is the most accurate on the test for dishonesty?
Two questions need to be asked- (i) Would ordinary reasonable people consider the actions of the defendant to be dishonest? (ii) Does the defendant realise that ordinary decent people would consider their actions to be dishonest?
The only question to ask is- Does the defendant consider their actions to be dishonest?
Two questions need to be asked- (i) What was the defendant’s knowledge and belief as to the facts? (ii) Given that knowledge and those beliefs, was the defendant dishonest by the standards of ordinary decent people?
The only question to ask is- Would ordinary reasonable people consider the defendant’s actions to be dishonest?
The only question to ask is- Does the judge consider the defendant’s actions to be dishonest?
Two questions need to be asked- (i) What was the defendant’s knowledge and belief as to the facts? (ii) Given that knowledge and those beliefs, was the defendant dishonest by the standards of ordinary decent people?
Correct. This is the test as set out in Ivey v Genting Casinos.
Kitty takes a carton of milk belonging to Fiona. She intends to replace it later that day. Which of the following best describes her intention to permanently deprive?
Kitty takes Fiona’s carton of milk and treats it in a manner which she knows risks its loss
Kitty’s intention to return Fiona’s carton of milk with another is still intention to permanently deprive
Kitty’ has taken the carton of milk but may not be able to fulfil the condition of its return by replacing it
Kitty’s intention to return Fiona’s carton of milk with another is still intention to permanently deprive
Correct. This comes from the case of R v Velumyl on interchangeable property still amounting to an intention to permanently deprive. Kitty does not intend to return the same carton of milk, so she has an intention to permanently deprive under s 1 Theft Act 1968.
In which one of the following situations does section 1(1) Theft Act 1968 rather than section 6(1) need to be referred to in order to establish intention to permanently deprive?
D borrows V’s property
D takes V’s property and treats it in a manner that risks its loss
D takes V’s property with an intention to keep it
D takes V’s property and attempts to sell it back to V
D takes V’s property with an intention to keep it
Correct. This is a simple case where the ordinary meaning of intention to permanently deprive from section 1(1) Theft Act 1968 is appropriate as it is clear on the facts.
Which is the wider definition of the term ‘to treat the thing as his own to dispose of regardless of the other’s rights’?
Intending to treat it in a manner which risks its loss
The dictionary definition of ‘to dispose of’- to deal with definitely: to get rid of; to get done with, finish. To make over by way of sale or bargain, sell’
Intending to treat it in a manner which risks its loss
Correct. This definition was provided in the case of R v Fernandes. Auld LJ says intention to permanently deprive is not limited the definition from Potts J in R v Cahill. Potts J defines this phrase as ‘to get rid of; to get done with, finish. To make over by way of sale or bargain, sell.’ Auld L.J. says the definition is wider than this and includes an intention to risk its loss.
Which of the following is the actus reus of fraud by false representation?
False representation
Intention to make a gain or cause a loss
Dishonesty
False representation
Correct- this representation can be express or implied, a representation as to fact, law or state of mind and the representation must be untrue or misleading.
Overcharging can be a form of fraud by false representation. What other offence could overcharging be if there is a relationship of mutual trust?
Fraud by abuse of position
Fraud by failure to disclose
Deception
Fraud by abuse of position
Correct. Although it is acknowledged that fraud by false representation is a more straightforward route to establish liability in this case.
How is dishonesty defined for the purposes of the Fraud Act 2006?
Ivey v Genting Casinos
Section 2(1) Theft Act 1968 negative definitions of dishonesty then Ivey v Genting Casinos
Section 2(1) Theft Act 1968 negative definitions of dishonesty
Ivey v Genting Casinos
Correct. The negative definitions of dishonesty contained in the Theft Act 1968, s 2(1) apply only to the offence of theft and therefore do not apply to offences under the Fraud Act 2006.
How many offences of fraud are there?
One
Three
Four
One
There is one offence of fraud but there are three ways of committing fraud. Review your fraud materials and consider section 1 Fraud Act 2006.
Can you be criminally liable for fraud by failure to disclose if there was no gain or loss?
No
Yes
Yes
Correct- the mens rea does not require an actual gain or loss just an intention to make a gain, cause a loss or expose someone to a risk of loss.
What type of legal duty to disclose is a contract of insurance?
A duty rising from a fiduciary relationship
A duty arising from statute
A duty within a transaction of the utmost good faith
A duty within a transaction of the utmost good faith
Correct. This was one of the examples provided by the Law Commission in its report that led to the Fraud Act 2006.
What section of the Fraud Act 2006 is fraud by abuse of position contained in?
Section 3
Section 2
Section 1
Section 4
Section 4
Correct- however, the offence of fraud is contained within the Fraud Act 2006, section 1.
Who decides whether the defendant occupies a position for the purposes of fraud by abuse of position?
The jury alone
The judge and the jury have a role in this
The judge alone
The judge and the jury have a role in this
Correct. The jury will decide on the facts whether the necessary relationship exists for D to have occupied a position in which they are expected to safeguard or not act against the financial interests of another person. However, before the jury decide this, the judge will consider whether the particular facts are capable of giving rise to D occupying a position and may give specific directions to the jury on this point.
A man starts visiting his elderly neighbour, helping with her shopping and collecting her pension from the Post Office. How is the man occupying a position for the purposes of fraud by abuse of position?
Voluntary work
Professional relationship
Family relationship
Fiduciary relationship
Correct. This relationship would fit into the example given by the Law Commission of ‘voluntary work.’
Can you have a robbery without a theft?
Depends on the circumstances
No
Yes
Correct. The wording of s 8(1) Theft Act 1968 and the case of R v Robinson makes that clear.
How do we decide whether there has been enough force for a robbery?
The judge decides on the meaning of the word ‘force’ and directs the jury
The statute provides a negative definition of ‘force’ as not requiring violence
The jury decide by using the ordinary meaning of the word ‘force’
The statute provides a definition of ‘force’ as more than a mere touch
The jury decide by using the ordinary meaning of the word ‘force’
Correct. Force is not defined in the Theft Act 1968 and it is a matter of fact for the jury whether the defendant’s actions amount to force, R v Dawson and James.
Can force be applied through property?
Yes, as long as the force against the property caused force against the person
No, as force to detach property cannot count as force on the person
Yes, as the acts of a pickpocket are enough force for a robbery where there is very minimal indirect contact and no resistance from the victim
No, as the wording of the statute refers to the use of force being on any person
Yes, as long as the force against the property caused force against the person
Correct. While force is not defined by the Theft Act 1968, this statement accurately reflects the legal principle from R v Clouden.
Which of the following offences can make up a s 9(1)(a) burglary but not a s 9(1)(b) burglary?
Criminal damage
Theft
Grievous bodily harm
Criminal damage
Correct. This reflects the wording of s 9(1)(b) and s 9(2) Theft Act 1968.
At what point in time does a s 9(1)(a) burglary take place?
Upon entry with intention to commit the ulterior offence
Before entry
Once D is inside the building or part of the building
Once D is inside and has committed or attempted either GBH or theft
Upon entry with intention to commit the ulterior offence
Correct. There is no need for the defendant actually to commit the ulterior offence.
When establishing a s 9(1)(b) burglary, which of the following elements requires no mens rea?
Theft
Grievous bodily harm
Knowing or being reckless as to entry as a trespasser
Grievous bodily harm
Correct. This is the current law according to R v Jenkins. The inflicting of grievous bodily harm is all that is required, the defendant does not need to intend to inflict grievous bodily harm.
What is the maximum sentence for aggravated burglary?
10 years
14 years
Life imprisonment
Life imprisonment
Correct. The reason given by the Criminal Law Revision Committee at the time for this maximum sentence is that aggravated burglary could be very frightening to anyone in the building and could potentially lead to fatal consequences.
When must D have the article with them for the purposes of a section 9(1)(b) aggravated burglary?
On commission or attempted commission of theft or grievous bodily harm
At the point of entry
Any time before leaving the building or part of a building
On commission or attempted commission of theft or grievous bodily harm
Correct. This was confirmed in the case of R v O’Leary for example.
A man breaks into a house with the aim of stealing valuables and takes a laptop. He has pepper spray in his pocket. Which of the following offences is the man most likely to be criminally liable for?
Burglary
Theft
No criminal law offence
Aggravated burglary
Robbery
Aggravated burglary
This is the correct answer. The man commits a burglary and at the time he has with him a weapon of offence. Pepper spray is a weapon of offence as it is made for incapacitating a person. See s 10 Theft Act 1968.
Where is assault defined?
Assault is a statutory offence, defined in section 39 Criminal Justice Act 1988
Assault is a common law offence
Section 39 Criminal Justice Act 1988 codifies the common law definition of assault
Assault is a common law offence
Correct. It is defined in the Fagan v MPC case. The penalties and procedure are set out in section 39 Criminal Justice Act 1988.
For the purpose of an assault, what is meant by personal violence?
The defendant must have made physical contact with the victim
The victim must apprehend psychological harm
The victim must apprehend physical violence
The victim must apprehend physical and/ or psychological harm
The victim must apprehend physical violence
Correct. For an assault, the victim must apprehend physical violence. The view that personal violence could include psychological harm was expressly rejected by Lord Hope in the House of Lords in the Ireland case. If the defendant has made contact with the victim, battery is the more appropriate offence.
Which of the following statements about the mens rea of battery are correct?
The offence of battery requires that the defendant apply unlawful force to another intentionally or recklessly
The offence of battery can only be committed recklessly
The offence of battery is a specific intent offence
The offence of battery requires that the defendant apply unlawful force to another intentionally or recklessly
Correct. This is the mens rea of battery, R v Venna. As the mens rea of battery states it can be committed recklessly, battery is a basic intent offence.
What is the mens rea of assault occasioning actual bodily harm?
The mens rea for the assault or battery and intention or recklessness as to causing actual bodily harm
Intention or recklessness as to causing actual bodily harm
The mens rea for the assault or battery
The mens rea for the assault or battery
Correct. No mens rea is required for the actual bodily harm, R v Savage, R v Parmenter.
What is the mens rea of section 20 Offences Against the Person Act 1861, malicious wounding or inflicting grievous bodily harm?
Intention or recklessness as to causing harm
Intention to cause serious harm
Intention or recklessness as to causing some harm
Intention or recklessness as to wounding or inflicting grievous bodily harm
Intention or recklessness as to causing some harm
Correct. This was confirmed in R v Savage, Parmenter.
What is the mens rea of section 18 Offences Against the Person Act 1861, malicious wounding or causing grievous bodily harm with intent?
Intention or recklessness as to causing serious harm
Intention to wound or inflict grievous bodily harm
Intention to cause grievous bodily harm
Intention to cause some harm
Intention to cause grievous bodily harm ??
A girl picks up a gun and points it at a boy’s head. The girl and the boy know that the gun is not loaded.
Which one of the following statements best describes the legal position?
The girl is potentially criminally liable for a battery
The girl is potentially criminally liable for an assault
The girl has no criminal liability as has not committed either an assault or a battery
An intention or recklessness as to applying unlawful force to another or an intention or recklessness as to causing the victim to apprehend immediate and unlawful personal violence
Correct. No mens rea is required for the actual bodily harm element.
Involuntary intoxication may be raised successfully as a defence to which crimes?
Crimes of specific intent only
Crimes of both specific and basic intent involving dangerous or non-dangerous substances
Crimes involving alcohol only
Crimes of basic intent only
Crimes involving dangerous drugs only
Crimes of both specific and basic intent involving dangerous or non-dangerous substances
Correct. The key question is did the defendant still form the necessary mens rea? See **R v Pordage. **
The involuntary intoxication defence is available for both specific and basic intent crimes if it negates the defendant’s mens rea.
What is the question a court will ask regarding a defendant’s mens rea if they are voluntarily intoxicated by dangerous drugs/ alcohol and commit a basic intent offence?
Would the defendant have formed the mens rea if sober?
Was the defendant incapable of forming the mens rea?
Did the defendant still form the necessary mens rea even though intoxicated?
Would the defendant have formed the mens rea if sober?
Correct. The defendant will be deemed reckless if they would have foresaw the risk of harm if sober, **Coley, McGhee and Harris. **The court will ask did the defendant form the mens rea even though intoxicated, in cases of:
- Involuntary intoxication (such as being drugged without consent);
- Voluntary intoxication by non-dangerous drugs (e.g. Hardie, the D who took Valium to calm his nerves); or
- Voluntary intoxication and D has committed a specific intent crime (e.g. murder).
The case of Pordage confirmed that the question at issue is not whether the defendant wasincapable of forming the mens rea, but whether, even if still capable, they did form it.
When will intoxication prevent the defendant from using another defence?
When a drunken mistake caused the defendant to use self-defence
When pleading diminished responsibility
When the defendant honestly believed the owner would have consented to the damage due to voluntary intoxication
When pleading loss of control
When the defendant believed the victim consented to the accidental infliction of injury due to their intoxication
When a drunken mistake caused the defendant to use self-defence
Correct
Correct. If a defendant makes a drunken mistake as to the need to use self-defence, they cannot rely on that mistake.
The other answers were incorrect:
- Where a statutory defence allows for an honest belief, D will be able to use the defence even if their belief is due to voluntary intoxication, see **Jaggard v Dickinson **on the lawful excuse defence for criminal damage.
- If the jury are satisfied that V consented to the accidental infliction of injury or D (even wrongly) believed that V consented (due to their intoxication), D may have a defence, Richardson & Irwin.
- Intoxication is no bar to a plea of loss of control or diminished responsibility.
Which of the following correctly describes the mens rea of s 20 Offences Against the Person Act 1861?
Intention to cause some harm
Intention to cause serious harm
Intention or recklessness as to causing serious harm
Intention or recklessness as to causing some harm
Intention to cause serious harm
Correct. Intention to cause serious harm is the mens rea of s 18 OAPA 1861.
A girl picks up a gun and points it at a boy’s head. The girl and the boy know that the gun is not loaded.
Which one of the following statements best describes the legal position?
The girl has no criminal liability as has not committed either an assault or a battery
The girl is potentially criminally liable for an assault
The girl is potentially criminally liable for a battery
The girl has no criminal liability as has not committed either an assault or a battery
Correct. The girl has not threatened unlawful violence on the boy nor touched him without consent, so does not fulfil the definitions of assault or battery.
Which one of the following best describes the mens rea of s 47 Offences Against the Person Act 1861?
There is no mens rea requirement
An intention or recklessness as to applying unlawful force to another
An intention or recklessness as to causing the victim to apprehend immediate and unlawful personal violence
An intention or recklessness as to applying unlawful force to another or an intention or recklessness as to causing the victim to apprehend immediate and unlawful personal violence
An intention or recklessness as to applying unlawful force to another or an intention or recklessness as to causing the victim to apprehend immediate and unlawful personal violence
Correct. No mens rea is required for the actual bodily harm element.
Which of the following best explains when consent is a defence to an offence against the person?
Consent is only available to assault and battery
Consent is available to all offences against the person
Consent is only available to assault and battery unless one of the exceptions apply
Consent is not available to any offences against the person
Consent is only available to assault and battery unless one of the exceptions apply
Correct. The general rule is that consent will operate as a defence to assault and battery only, AG’s Reference (No 6 of 1980). The case of R v Meachen extended the rule to provide that the defence could still operate even where ABH or worse was caused provided the defendant only intended to commit a battery with the consent of the victim and did not see the risk of causing ABH.
Which of the following best explains whether consent is available for assault and battery?
Consent is available if V consented
Consent is available if V consented and D honestly believed that V was consenting
Consent is available if D honestly believed that V was consenting
Consent is available if V consented or D honestly believed that V was consenting
Consent is available if V consented or D honestly believed that V was consenting
Correct. If the defendant wrongly believed the victim consented, the defence could be available, R v Richardson and Irwin. Equally if the victim consented, even if the defendant did not know this, the defence could be available.
Consent is only available to assault and battery unless one of the exceptions apply. Which of the following exceptions are not available if D intended or was reckless as to causing ABH or above?
Sexual gratification/ accidental infliction of harm
Lawful correction of a child
Horseplay
Sport
Personal adornment
Lawful correction of a child
Correct. The Children Act 2004, s 58 outlines that the reasonable punishment defence cannot be relied on if it results in ABH or above for example. Consent can be available in certain circumstances for sport, horseplay, personal adornment and sexual gratification/ accidental infliction of harm.
Self-defence cannot be relied on which of the following circumstances?
To protect yourself, another or property against imminent attack
To protect against psychological harm
To protect property against attack
To protect another against attack
To protect yourself against attack
To protect against psychological harm
Correct. Self-defence cannot be relied on in these circumstances, see R v Bullerton.
Which of the following cannot be used as a trigger for self-defence?
D’s mistaken belief they were under attack induced by voluntary intoxication
D’s mistaken but unreasonable belief they were under attack
D’s mistaken but reasonable belief they were under attack
D’s use of anticipatory self-defence in the belief they were under imminent attack
D’s mistaken belief they were under attack induced by voluntary intoxication
Correct. Self-defence cannot be relied on if a mistake is induced by voluntary intoxication, R v O’Connor ands 76(5).
Which of the following accurately describes the question to be asked when judging whether the response was reasonable for the purposes of self-defence?
Was the level of force used objectively reasonable in the circumstances as D subjectively believed them to be?
Did D believe the level of force used to be reasonable in the circumstances?
Was the level of force objectively reasonable?
Was the level of force used objectively reasonable in the circumstances as D subjectively believed them to be?
Correct. This reflects the common law position and the s 76(3) Criminal Justice and Immigration Act 2008. The trigger aspect of the test has objective and subjective elements to it.
Which of the following best describes when force will not be reasonable in householder cases?
If it was grossly disproportionate in the circumstances as D believed them to be
If it was grossly disproportionate
If it was disproportionate
If it was disproportionate in the circumstances as D believed them to be
If it was grossly disproportionate in the circumstances as D believed them to be
Correct. If the force was grossly disproportionate, there can be no defence.
Does the use of force in householder cases need to be reasonable?
Yes
No
Depends on the circumstances
Yes
Correct. Confirmed by the High Court in the Denby Collins case and the Court of Appeal in **R v Ray (Steven). **If the force was not grossly disproportionate in the circumstances, the next question is whether the level of force was reasonable.__
To be potentially classed as a householder case, which of the following must the defendant rely on?
Preventing a crime
Protecting property
Protecting themselves or another
Assisting in the arrest of an offender
Protecting themselves or another
Correct. This reflects the Criminal Justice and Immigration Act 2008, s 76(8A)(a).
Which of the following elements distinguishes murder from involuntary manslaughter?
Unlawful
Human being
Killing
Malice aforethought
Malice aforethought
Correct. With murder and involuntary manslaughter the defendant unlawfully kills another human being under the Queen’s Peace. However, with murder D unlawfully kills another human being with intention to kill or intention to cause GBH. Malice aforethought is absent from involuntary manslaughter.
Which of the following will amount to an unlawful act for the purposes of unlawful act manslaughter?
A criminal act
A lawful act which becomes unlawful due to negligence or recklessness
An omission
A civil act
A criminal act
Correct. The unlawful act cannot be a civil act, R v Franklin. The unlawful act must not be an omission (such would be charged as gross negligence manslaughter), R v Lowe. The unlawful act must be intrinsically unlawful, Andrews v DPP.
What is the test for whether the unlawful act was dangerous for the purposes of unlawful act manslaughter?
Sober and reasonable people would inevitably recognise must subject the other person to serious harm
Reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm
Reasonable people would inevitably recognise must subject the other person to serious harm
Sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm, albeit not serious harm
Sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm, albeit not serious harm
Correct. This reflects the test given in R v Church, the others were incorrect.
Which one of the following best describes the type(s) of involuntary manslaughter that can be committed by a positive act?
Gross negligence manslaughter
Unlawful act manslaughter and gross negligence manslaughter
Unlawful act manslaughter
Unlawful act manslaughter and gross negligence manslaughter
Correct. Unlawful act manslaughter cannot be committed by an omission, R v Lowe. However, gross negligence manslaughter can be committed by a positive act or an omission.
What is the test for whether there is a risk of death for the purposes of gross negligence manslaughter?
Was there an obvious and serious risk not merely of injury or even serious injury, but of death?
Was there a serious risk of death which was obvious either presently or would have become apparent on further investigation?
Was there an obvious and serious risk of either injury, serious injury or death?
Was there an obvious and serious risk not merely of injury or even serious injury, but of death?
Correct. This reflects the wording given in Singh and approved in Misra and **Srivastava. **In Rose the court stated that an obvious risk was a present risk which was clear and unambiguous not one which might become apparent on further investigation.
Which of the following is correct regarding whether the breach was sufficiently serious to constitute gross negligence for the purposes of gross negligence manslaughter?
A single devastating act can be grossly negligent
There cannot be gross negligence by the defendant if others are also responsible for the circumstances leading up to death
The defendant must have a particular state of mind- D must either have seen a clear risk of death or not cared about the risk of death
A single devastating act can be grossly negligent
Correct. This is reflected in the case of Adomako.
Although the defendant’s state of mind is not irrelevant (Litchfield), there is no requirement for any particular mental state, **Adomako. **There can be gross negligence by the defendant if others are also responsible for the circumstances leading up to death, Prentice and Sullman.
A man believes the waiter is looking at his girlfriend. The man confronts the waiter saying, ‘when I finish with you, you will not be able to look at another girl again’. The man punched the waiter hard in the face. The waiter slipped and hit his head on a nearby table. The waiter died from his injuries.
Which of the following offences is the man most likely to be criminally liable for?
Murder
Voluntary manslaughter by loss of control
Gross negligence manslaughter
Unlawful act manslaughter
Voluntary manslaughter by diminished responsibility
Murder
Correct
This is the correct answer. The man causes the waiter’s death by the punch. It is the man’s aim to cause grievous bodily harm by the hard punch to the face.
A man was queuing to buy the latest smartphone. As he neared the front of the queue, a woman walked past him. As he thought the woman was going to jump the queue, he pushed her and shouted, ‘Hey we have a queue here!’ The woman fell off the kerb and she bumped her head on the road. She subsequently died from her injuries.
Which of the following offences is the man most likely to be criminally liable for?
Murder
Unlawful act manslaughter
Voluntary manslaughter by loss of control
Gross negligence manslaughter
Voluntary manslaughter by diminished responsibility
Unlawful act manslaughter
This is the correct answer. The man did not aim to kill her or cause her serious harm. The push is a battery which is the unlawful act.
A zookeeper is showing some poisonous snakes to a group of school children. During the presentation the zookeeper’s phone rings. Distracted, the zookeeper fails to close the lid to the tank properly. The zookeeper notices that a dangerous snake is no longer in the tank but not wishing to alarm the children he says nothing. A girl starts screaming. The zookeeper sees that the missing snake has crawled onto the girl’s lap and bitten her on the arm, drawing blood. The girl dies later from her wound.
Which of the following offences is the zookeeper most likely to be criminally liable for?
Gross negligence manslaughter
Voluntary manslaughter by loss of control
Voluntary manslaughter by diminished responsibility
Murder
Unlawful act manslaughter
Gross negligence manslaughter
This is the correct answer. The zookeeper caused the girl’s death by an omission when under a legal duty to act under contract and following the creation of a dangerous situation.
What is the correct meaning of an inchoate offence?
Unfinished
Conspired
Attempted
Unfinished
This is the correct answer. Inchoate offences are unfinished or incomplete offences. Attempted is a type of inchoate offence.
In which one of the following cases had the defendant done an act that was more than merely preparatory?
Campbell
Jones
Geddes
Jones
This is the correct answer, it was more than merely preparatory to get into a car with a loaded gun and point it at the victim, therefore attempted murder. Being outside a post office with a threatening note and fake gun was held not to be attempted robbery, Campbell. Being in school toilets with a knife and rope but no schoolchildren was held not to be attempted false imprisonment, Geddes.
Which one of the following correctly describes the mens rea for attempted murder?
Intention to cause serious harm
Intention to kill
Intention to kill or cause serious harm
Intention or recklessness as to killing
Intention to kill
This is the correct answer. See the case of Whybrow for further details.
The general rule is that impossibility is not a defence to an attempted offence. Which one of the following types of impossibility might be said to act as a defence?
Impossibility through non-existent crimes
Impossibility through inadequacy
Impossibility in fact
Impossibility through non-existent crimes
This is the correct answer. The Taaffe case demonstrates this legal principle. Impossibility through inadequacy and impossibility in fact are no defences to an attempted offence, section 1(2)&(3) Criminal Attempts Act 1981.
Which of the following is cannot lead to criminal liability?
To attempt to aid, abet, counsel or procure an offence
To aid, abet, counsel or procure an attempt to commit an offence
To aid, abet, counsel or procure an offence
To attempt to aid, abet, counsel or procure an offence
Correct. This is not an offence. Essentially, you cannot fulfil the actus reus of accessorial liability by an attempt.
To aid, abet, counsel or procure an offence- is an offence, these are some of the ways in which you can fulfil the actus reus of accessorial liability.
To aid, abet, counsel or procure an attempt to commit an offence- is an offence, these are some of the ways in which you can fulfil the actus reus of accessorial liability- here it just happens to be that the principal is committing an attempt.
Who decides whether a person has withdrawn from a joint enterprise?
The jury
The other party to the joint enterprise
The defendant
The jury
Correct. It is a question of fact and degree for the jury. Account will be taken of the nature of the assistance and encouragement already given and how imminent the infliction of the fatal injury or injuries is, as well as the nature of the action said to constitute withdrawal.
It is not the defendant as the general rule is that it is not enough to just have a change of mind. Something must be done and, at the very least, the withdrawal must be communicated to the principal or a law enforcement agency.
What is the term for the person who commits an offence with the appropriate actus reus and mens rea?
Party to a joint enterprise
Accessory
Principal
Principal
Correct. Broadly an accessory is someone that assists or encourages the commission of an offence, rather than commits it. While a party to a joint enterprise will be a joint principal, there needs to be more than one person for a joint enterprise.
What is the mens rea of assault occasioning actual bodily harm?
The mens rea for the assault or battery
Intention or recklessness as to causing actual bodily harm
The mens rea for the assault or battery and intention or recklessness as to causing actual bodily harm
The mens rea for the assault or battery
Correct. No mens rea is required for the actual bodily harm, R v Savage, R v Parmenter.
What is the mens rea of section 20 Offences Against the Person Act 1861, malicious wounding or inflicting grievous bodily harm?
Intention or recklessness as to causing harm
Intention or recklessness as to causing some harm
Intention to cause serious harm
Intention or recklessness as to wounding or inflicting grievous bodily harm
Intention or recklessness as to causing some harm
Correct. This was confirmed in R v Savage, Parmenter.
What is the mens rea of section 18 Offences Against the Person Act 1861, malicious wounding or causing grievous bodily harm with intent?
Intention to wound or inflict grievous bodily harm
Intention or recklessness as to causing serious harm
Intention to cause grievous bodily harm
Intention to cause some harm
Intention to cause grievous bodily harm
Correct. Grievous bodily harm means serious harm, Saunders.
Which of the following correctly describes the mens rea of s 20 Offences Against the Person Act 1861?
Intention or recklessness as to causing some harm
Intention or recklessness as to causing serious harm
Intention to cause serious harm
Intention to cause some harm
Intention or recklessness as to causing some harm
Correct. Intention to cause serious harm is the mens rea of s 18 OAPA 1861.
A girl picks up a gun and points it at a boy’s head. The girl and the boy know that the gun is not loaded.
Which one of the following statements best describes the legal position?
The girl has no criminal liability as has not committed either an assault or a battery
The girl is potentially criminally liable for a battery
The girl is potentially criminally liable for an assault
The girl has no criminal liability as has not committed either an assault or a battery
Correct. The girl has not threatened unlawful violence on the boy nor touched him without consent, so does not fulfil the definitions of assault or battery.
Which one of the following best describes the mens rea of s 47 Offences Against the Person Act 1861?
An intention or recklessness as to applying unlawful force to another or an intention or recklessness as to causing the victim to apprehend immediate and unlawful personal violence
An intention or recklessness as to applying unlawful force to another
An intention or recklessness as to causing the victim to apprehend immediate and unlawful personal violence
There is no mens rea requirement
An intention or recklessness as to applying unlawful force to another or an intention or recklessness as to causing the victim to apprehend immediate and unlawful personal violence
Correct. No mens rea is required for the actual bodily harm element.
Involuntary intoxication may be raised successfully as a defence to which crimes?
Crimes involving alcohol only
Crimes of specific intent only
Crimes of both specific and basic intent involving dangerous or non-dangerous substances
Crimes involving dangerous drugs only
Crimes of basic intent only
Crimes of both specific and basic intent involving dangerous or non-dangerous substances
Correct. The key question is did the defendant still form the necessary mens rea? See **R v Pordage. **
When will intoxication prevent the defendant from using another defence?
When a drunken mistake caused the defendant to use self-defence
When the defendant believed the victim consented to the accidental infliction of injury due to their intoxication
When pleading diminished responsibility
When the defendant honestly believed the owner would have consented to the damage due to voluntary intoxication
When pleading loss of control
When a drunken mistake caused the defendant to use self-defence
Correct. If a defendant makes a drunken mistake as to the need to use self-defence, they cannot rely on that mistake.
The other answers were incorrect:
- Where a statutory defence allows for an honest belief, D will be able to use the defence even if their belief is due to voluntary intoxication, see **Jaggard v Dickinson **on the lawful excuse defence for criminal damage.
- If the jury are satisfied that V consented to the accidental infliction of injury or D (even wrongly) believed that V consented (due to their intoxication), D may have a defence, Richardson & Irwin.
- Intoxication is no bar to a plea of loss of control or diminished responsibility.
What is the question a court will ask regarding a defendant’s mens rea if they are voluntarily intoxicated by dangerous drugs/ alcohol and commit a basic intent offence?
Did the defendant still form the necessary mens rea even though intoxicated?
Would the defendant have formed the mens rea if sober?
Was the defendant incapable of forming the mens rea?
Would the defendant have formed the mens rea if sober?
Correct. The defendant will be deemed reckless if they would have foresaw the risk of harm if sober, **Coley, McGhee and Harris. **The court will ask did the defendant form the mens rea even though intoxicated, in cases of:
- Involuntary intoxication (such as being drugged without consent);
- Voluntary intoxication by non-dangerous drugs (e.g. Hardie, the D who took Valium to calm his nerves); or
- Voluntary intoxication and D has committed a specific intent crime (e.g. murder).
The case of Pordage confirmed that the question at issue is not whether the defendant wasincapable of forming the mens rea, but whether, even if still capable, they did form it.
The actus reus of accessorial liability can be committed in five ways. If D gives the principal advice or encouragement before the offence is committed, how would that be categorised?
To aid
To abet
To counsel
To be a party to a joint enterprise
To procure
To counsel
Correct
Correct. There must be contact and consensus between P and D along with a connection between the advice and the crime. Causation isn’t needed.
To aid is giving help, support or assistance before or at the time of the offence e.g. giving information, supplying tools or driving P.
To abet is to incite, instigate or encourage P at the time of the offence which must be communicated to P.
To procure P to commit the offence is to produce by endeavour.
An example of a joint enterprise is where the P and D commit burglary as principals, P murders the homeowner, D becomes an accessory to P’s murder.
The actus reus of accessorial liability can be committed in five ways. Which of the following requires a causal link between D’s act and what P does?
To procure
To abet
To aid
To be a party to a joint enterprise
To counsel
To procure
Correct
Correct. There must be a causal link between D’s act and the commission of the offence.
Which of the following is not part of the mens rea for accessorial liability?
An intention to assist or encourage the principal’s conduct
An intention to do the actus reus and mens rea of the principal offence
An intention that the principal will do the actus reus with that mens rea
Knowledge of existing facts or circumstances necessary for the offence to be criminal
An intention to do the actus reus and mens rea of the principal offence
Correct
Correct- this would make D the principal rather than an accessory. The mens rea for accessorial liability is:
- An intention to assist or encourage the principal’s conduct.
- If the crime requires a mens rea, an intention that the principal will do the actus reus with that mens rea.
- Knowledge of existing facts or circumstances necessary for the offence to be criminal.
A woman tips some cooking oil from her second floor flat onto the pavement below to avoid blocking the drains with fat. A man slips on the oil and breaks his hip.
What is test for the woman to be reckless as to causing physical harm?
She must have given no thought to the risk of causing physical harm and the risk must be an unreasonable one to take
The risk of causing physical harm which she took must be an unreasonable one when weighed against the social utility in not blocking drains with fat
She must have seen the risk of causing physical harm and went ahead anyway
She must have seen the risk of causing physical harm and the risk she saw must be an unreasonable one to take
She must have seen the risk of causing physical harm and a reasonable person must consider the risk an unreasonable one to take
She must have seen the risk of causing physical harm and the risk she saw must be an unreasonable one to take
Correct. This is the test from R v G: a defendant is reckless with respect to a result when aware of a risk that it will occur and it is, in all the circumstances known to the defendant, unreasonable to take the risk. The first issue is judged subjectively; the second, objectively.
The other options, while plausible are incorrect, often because they are not accurate enough.
The question of whether the risk is an unreasonable one to take, is judged objectively in the light of the circumstances known to the defendant.
Both elements of the test must be satisfied. So, the defendant must see the risk and it must be an unreasonable one to take in the circumstances known to her.
If the defendant has given no thought to the possibility of the risk, then she does not see the risk and so is not reckless as one element of the test is missing.
The fact that the defendant sees the risk and goes ahead anyway is not evidence of recklessness. The question is whether the risk recognised by the defendant is an objectively unreasonable one to take in the circumstances known to the defendant.
She must have seen the risk of causing physical harm and a reasonable person must consider the risk an unreasonable one to take
Incorrect, in part. You have correctly identified the first part of the test but not the second part of the test. The question of whether the risk is an unreasonable one to take, is judged objectively in the light of the circumstances known to the defendant. Review the full test as set out in R v G. The wording used will guide you.
A woman owns a coffee shop in her local town. A new coffee shop has opened at the other end of the high street which is affecting the woman’s business. Late one night the woman goes to the new coffee shop with a can of petrol. A light is on in a first-floor window above the shop and she can see the shadow of a person in that light. However, she is determined to destroy the new coffee shop. She breaks a window, pours petrol through the broken window and then throws in a lighted rag. The man living in the flat above the coffee shop escapes down an external fire escape at the back of the building. The woman is being charged with aggravated arson.
Which of the following questions are most likely to result in the woman being found to have the endangering life element of the mens rea for aggravated arson?
Did the woman see the risk of endangering life by setting fire to the shop and was the risk she saw an unreasonable one to take?
Was it the woman’s aim or purpose to endanger life by setting fire to the shop?
Did the woman see that it was virtually certain that life would be endangered by setting fire to the shop?
Did the woman see the risk of endangering life by setting fire to the shop and was the risk she saw an unreasonable one to take in the circumstances known to her, bearing in mind, that there is no social utility in the woman’s actions
Was it virtually certain that life would be endangered by setting fire to the shop and did the woman see that it was virtually certain?
Did the woman see the risk of endangering life by setting fire to the shop and was the risk she saw an unreasonable one to take in the circumstances known to her, bearing in mind, that there is no social utility in the woman’s actions
Correct
Correct. This is the test from R v G.
The other options, while plausible are incorrect or not the best answer.
The test in R v G is a two-part test. The second part is objective and requires a consideration of whether the risk seen by the defendant was, objectively, an unreasonable one to take in the circumstances known to the defendant.
Where the mens rea of an offence is defined as intention or reckless, if direct intention cannot be established, oblique intention should not be applied. Instead, the test for recklessness should be applied.
The woman’s direct intention is to destroy the new coffee shop, not to endanger the life of the man living in the flat above. The woman is more likely to be found to have the endangering life element of the mens rea for aggravated arson by applying the test for recklessness as set out in R v G.
A woman goes to a party. All the coats are left upstairs in a bedroom. When she goes to collect her coat she sees a mink jacket. Horrified at the cruelty of a coat made out of animal fur, she takes a pair of scissors from the dressing table and cuts the jacket into small pieces which could not be sown together again. She leaves the pieces on the bed and goes home.
Which of the following best describes whether the woman has intention to permanently deprive for the purposes of theft?
The woman has intention to permanently deprive because she has rendered the jacket useless
The woman does not have intention to permanently deprive because she has not risked the jacket’s loss
The woman does not have intention to permanently deprive because she has not borrowed the jacket in circumstances making it equivalent to an outright taking
The woman does not have intention to permanently deprive because she does not offer the jacket by way of sale, bargain with it or sell it
The woman has intention to permanently deprive because she has taken away all of the jacket’s goodness, virtue and practical value
The woman has intention to permanently deprive because she has rendered the jacket useless
Correct
Correct. The extended meaning in s 6(1) Theft Act 1968 is ‘to treat the thing as [her] own to dispose of regardless of the other’s rights.’ DPP v J held that this will happen if the jacket is rendered useless.
The other options, some of which are plausible, are not the best answers or are incorrect.
Borrowing property that belongs to another can amount to intending to treat it as one’s own to dispose of regardless of the other’s rights if it is for a period and in circumstances making it equivalent to an outright taking, s 6(1). However, the woman’s behaviour is not easily seen as borrowing.
Intending to treat the property in a manner which risks its loss may be evidence of intention to permanently deprive according to s 6(1) and case law such as R v Fernandes and R v Marshall. However, on the facts, the jacket has been rendered useless, as it cannot be sown together again.
A woman goes to a party. All the coats are left upstairs in a bedroom. When she goes to collect her coat she sees a mink jacket. Horrified at the cruelty of a coat made out of animal fur, she takes a pair of scissors from the dressing table and cuts the jacket into small pieces which could not be sown together again. She leaves the pieces on the bed and goes home.
Which of the following best describes whether the woman has intention to permanently deprive for the purposes of theft?
The woman has intention to permanently deprive because she has rendered the jacket useless
The woman does not have intention to permanently deprive because she has not risked the jacket’s loss
The woman does not have intention to permanently deprive because she has not borrowed the jacket in circumstances making it equivalent to an outright taking
The woman does not have intention to permanently deprive because she does not offer the jacket by way of sale, bargain with it or sell it
The woman has intention to permanently deprive because she has taken away all of the jacket’s goodness, virtue and practical value
The woman has intention to permanently deprive because she has rendered the jacket useless
Correct
Correct. The extended meaning in s 6(1) Theft Act 1968 is ‘to treat the thing as [her] own to dispose of regardless of the other’s rights.’ DPP v J held that this will happen if the jacket is rendered useless.
The other options, some of which are plausible, are not the best answers or are incorrect.
Borrowing property that belongs to another can amount to intending to treat it as one’s own to dispose of regardless of the other’s rights if it is for a period and in circumstances making it equivalent to an outright taking, s 6(1). However, the woman’s behaviour is not easily seen as borrowing.
Intending to treat the property in a manner which risks its loss may be evidence of intention to permanently deprive according to s 6(1) and case law such as R v Fernandes and R v Marshall. However, on the facts, the jacket has been rendered useless, as it cannot be sown together again.
A father buys three soft scoop ice creams from a van for himself and his children. He hands over £10. The man in the van mistakenly thinks the father has handed over a £20 note so gives him £12.50 change in coins. Initially the father does not notice he has too much change as he is grappling with the ice creams and the coins. Eventually the father sees he has been given too much money and decides to keep it. By this time, his children have eaten most of their ice cream.
Which of the following best explains whether the money belongs to another for the purposes of theft?
The money belongs to another because the father is under an automatic obligation to restore property acquired by mistake
The money belongs to another because the father is under a legal obligation to restore the extra change which belongs to the ice cream seller alone
The money belongs to another because the father is under a legal obligation to restore the extra change which belongs to the ice cream seller and the father
The money belongs to another as the father is under an obligation to deal with the money in a particular way
The money does not belong to another because it belongs to the father who has possession and control of it
The money belongs to another because the father is under a legal obligation to restore the extra change which belongs to the ice cream seller and the father
Correct
Correct. Section 5(4) Theft Act 1968 states that where property is given to another by a mistake and there is a legal obligation to restore it, that property belongs to the other for the purposes of the Theft Act.
The other options, some of which are plausible, are not the best answer or are incorrect.
Where property has been acquired by a mistake, legal ownership passes to the recipient (the father). However, s 5(4) Theft Act 1968 provides that for the purposes of theft, the property will be regarded as still belonging to the original owner, the ice cream seller (as well as the recipient) if the recipient is under a legal duty to restore the property in whole or part.
Section 5(4) does not create an automatic legal obligation to restore. The section will operate only if such an obligation can be established in law such as Attorney-General’s Reference (No 1 of 1983).
Section 5(3) would only operate if the father was under a legal obligation to use the money in a particular way for the ice cream seller.
A woman suspects her colleague at work is suffering from the early stages of dementia. She tells him she has got into debt and is due to have her electricity cut off. This is not true. She asks the colleague for £2,000. Although he does not believe her, he hands her the money in cash. He does this because he knows she is a single parent who is struggling financially, he has plenty of money and he feels sorry for her.
Which of the following best explains whether the woman has appropriated the money for the purposes of theft?
She has appropriated the money because she thinks he has dementia and is taking advantage of him
She has appropriated the money because she has lied to him in her reasons for needing the money
She has not appropriated the money because the man consented- he knew she was lying when he gave her the money
She has appropriated the money despite his consent, and despite his intention to give her the money as a gift
She has not appropriated the money because the man intended it to be a gift to her
She has appropriated the money despite his consent, and despite his intention to give her the money as a gift
Correct. It was held in R v Gomez that you can appropriate with the owner’s consent as appropriation is an objective description of the act done independent of the mental state of either the owner or the defendant. Following on from this reasoning, the House of Lords said in R v Hinks that it is possible to appropriate a gift.
The other options are incorrect. When considering whether there has been an appropriation for the purposes of theft, it is irrelevant that:
- she has lied to him in her reasons for needing the money;
- the man intended the money to be a gift to her;
- the man consented- he knew she was lying when he gave her the money;
- she thinks he has dementia and is taking advantage of him.
A man asks the receptionist at the front desk of a hotel to get him a taxi to the station. The receptionist rings for a taxi from the company which the hotel always uses. The taxi takes the man to the station. The man pays in cash and the taxi driver gives him change but accidentally gives the man an extra £50 note which had become stuck to the £10 note he intended to give the man. The man does not notice this until after the taxi has gone. The man considers how he could contact the taxi driver to return the note but concludes that this would be extremely difficult and that the chances of tracing the taxi driver are slight. He keeps the £50 note.
Which of the following best explains whether the man is dishonest for the purposes of theft?
The man may be dishonest as he might be found dishonest by the standards of ordinary decent people
The man is not dishonest as ordinary decent people would not find him to be dishonest
The man may be dishonest as his belief that the taxi driver cannot be discovered by taking reasonable steps was not reasonable
The man may be dishonest as he did not take any reasonable steps to find the taxi driver
The man is not dishonest as he believes that the taxi driver cannot be discovered by taking reasonable steps
The man is not dishonest as he believes that the taxi driver cannot be discovered by taking reasonable steps
Correct. The exception to dishonesty as set out in s 2(1)(c) Theft Act 1968 will apply here. The man does not believe the owner can be found by taking reasonable steps. His belief does not need to be reasonable, R v Robinson.
The other options, some of which are plausible, are not the best answer or are incorrect.
Section 2(1)(c) applies where the defendant believes that the owner cannot be discovered on taking reasonable steps. It is not necessary to show that the defendant has taken any steps to find the owner in fact.
The test in s 2(1)(c) is a subjective one, based on the defendant’s beliefs.
If any of the exceptions set out in s 2(1) apply to the defendant, he is not dishonest and therefore the test in Ivey v Genting Casinos will not be applied.
incorrect
The man may be dishonest as he might be found dishonest by the standards of ordinary decent people
Incorrect. If any of the states of mind in s 2(1) apply, the defendant will not be dishonest. There is no need to apply the common law test of dishonesty found in **Ivey v Genting Casinos **to the man.
Review your materials on dishonesty, in particular s 2(1)(c) andR v Robinson.
A woman is meeting her personal trainer after work. He likes to be paid in cash. She realises that she does not have enough cash so borrows £20 from the envelope in her desk drawer which contains contributions from her colleagues for a leaving present for their boss. She intends to replace the money.
Which of the following is the best argument for why she will escape criminal liability for theft?
She is not dishonest
She does not take property as money is not mentioned as a form of property
She does not have an intention to permanently deprive because she will return the money with all its goodness, virtue and practical value
The money does not belong to another as ownership of the money passed to the woman when she collected it
She does not appropriate the money as she intends to replace it
She is not dishonest
Correct. She may believe her colleagues would consent to her borrowing the money, s 2(1)(a). In cases where any of the exceptions to dishonesty apply, the common law test in **Ivey v Genting Casinos **will not be considered. However, it is unlikely she would be viewed as dishonest under the Ivey test in any event.
If any element of the offence is missing, as here with dishonesty, the offence cannot be established.
The other options, some of which are plausible, are not the best answer or are incorrect.
All the other elements of theft can be established here.
She appropriates the money when she takes it from the envelope as this is an assumption of a right of the owner to handle it and spend it, s 3(1) and R v Morris.
Money is specifically listed as property in s 4(1).
The money belongs to another assection 5(3) will almost certainly apply here. It looks as if there is a legal obligation to spend the money in a particular way. See Davidge v Bunnett.
There is intention to permanently deprive as she does not intend to return the exact same note. See R v Velumyl.
incorrect
She does not appropriate the money as she intends to replace it
Incorrect
Incorrect. She appropriates the money when she takes it from the envelope as this is an assumption of a right of the owner to handle it and spend it, s 3(1) and R v Morris.
Review your materials on theft, in particular dishonesty.
A man goes to his neighbour’s house, at his neighbour’s request, to feed the cats while the neighbour is on holiday. The man decides, before entering the house, that he will see if there is any money lying around which he can take. There is no money lying around.
Will the man be criminally liable for burglary on entering the house?
The man will not be liable for burglary on entering the house, but will be liable if, later, he enters a part of the house where he does not have his neighbour’s permission to be
The man will be liable for burglary on entering the house if there is money in the house
The man will not be liable for burglary on entering the house as he believes he had the neighbour’s permission to be there
The man will be liable for burglary on entering the house
The man will not be liable burglary on entering the house as he does not find any money to steal
The man will be liable for burglary on entering the house
Correct
Correct. He will be liable for a s 9(1)(a) offence as he has entered the house as a trespasser. He knew he was a trespasser and, at the time of entry, intended to steal. See R v Jones and Smith for entry in excess of permission constituting trespass and AG’s Ref (Nos 1 & 2 of 1979) for conditional intention being equivalent to intention.
The other options are incorrect.
Trespass occurs where the defendant enters a building or part of a building either without any permission or in excess of permission to be there.
The defendant must know or be reckless as to the facts which make him a trespasser.
A conditional intention to steal will suffice as part of the mens rea for burglary.
For a s 9(1)(a) offence, it is not necessary to prove that theft occurs.
A woman is walking her dog in the park. A man comes up to her and says quietly, so as not to attract attention from others in the park, ‘give me your handbag or I will kick your dog.’ The woman gives the man her handbag. The man kicks the dog anyway.
Has the man committed robbery?
No. The man has stolen and used force, but he did not use the force immediately before or at the time of stealing and in order to steal.
No. The man has threatened force, but not against the person from whom he has stolen.
Yes. The man has stolen and used force on the dog.
No. The man has not used force on any person.
Yes. The man has stolen, threatened force on the dog and done so immediately before stealing and in order to steal.
No. The man has not used force on any person.
Correct. He has not used force on any person or put or sought to put any person in fear of being then and there subjected to force as the threat is directed at the dog.
The other options are incorrect.
‘Force’ can be satisfied in three ways; actual use of force, putting someone in fear that they will be then and there subjected to force, or seeking to put someone in fear that they will be then and there subjected to force.
The force used or threatened does not have to be directed towards the person from whom the property is stolen.
The force used or threatened must be against a person, not property (and a dog is considered property for these purposes).
Appropriation may be a continuous act and it is for the jury to decide whether it has come to an end. If force is used or threatened during the continuation of the appropriation, the defendant may be liable for robbery, **R v Hale. **
A man goes to sit behind a lady aged 85 on a bus. The lady has put her handbag on the seat beside her. The man leans forward and says to her, ‘if you don’t let me take your handbag, you will get punched!’ The lady is hearing impaired so does not hear what the man has said. The man realises she does not hear. When the bus approaches a stop, he grabs the handbag and jumps off the bus.
Has the man committed robbery?
The man may have committed robbery if the jury decides the appropriation is continuing.
The man has not committed robbery because he has not used force in order to steal.
The man has not committed robbery because the force element of robbery is missing.
The man has committed robbery.
The man has committed robbery because force can be applied to the handbag as well as to the person.
The man has committed robbery.
Correct
Correct. He has sought to put the lady in fear of being then and there subjected to force. He has done this before stealing and in order to steal. He steals the bag when he grabs it.
The other options are incorrect.
‘Force’ can be established in three ways. Actual use of force is only one of them.
It is not necessary to show that there is a causal link between the force and the theft to establish the actus reus of robbery. The requirement for a causal link in the mens rea is satisfied here– he has used force in order to steal.
It is for the jury to decide when an appropriation has come to an end. However, where force is used or threatened before the appropriation takes place, it is unnecessary to apply the continuing act principle from R v Hale.
For robbery, the force must be used or threatened against a person, not property, R v Clouden.
A boy cuts the shoulder strap of a woman’s bag and the bag falls to the ground. The boy picks it up and runs off with it. He goes around a corner, looks in the bag and can find nothing he considers worth taking. He leaves the bag on the ground. The woman felt nothing and didn’t notice that her bag was missing until a few minutes later. The bag is later returned to the woman.
Has the boy committed robbery?
The boy has not committed robbery as he has not used force against a person.
The boy has committed robbery as he has used force on the woman through an object.
The boy has not committed robbery because he had no intention to permanently deprive the woman of the bag.
The boy has not committed robbery as he has not appropriated property.
The boy has not committed robbery as a jury would not find the boy dishonest in these circumstances.
The boy has not committed robbery as he has not used force against a person.
Correct. The woman did not feel the indirect contact so this will not be enough to constitute force, see P and others v DPP.
The other options are incorrect.
While force does not require violence, force used against property must cause force against the person for robbery to apply.
Force to detach property may count as force on the person. However, in cases of indirect contact, if it is very minimal, it will not be enough for robbery to apply.
The full offence of theft must be established before considering whether it becomes robbery. The boy has appropriated property when he cut the shoulder strap of the woman’s bag, as he assumes a right of the owner, s 3(1) Theft Act 1968 and R v Morris. The boy is clearly dishonest here and the jury would find him so even if they went on to apply the Ivey v Genting Casinos test. A conditional intention to permanently deprive will suffice for the purposes of theft, AG’s Ref (Nos 1&2 of 1979).
incorrect
The boy has committed robbery as he has used force on the woman through an object.
Incorrect. If the indirect contact felt by the victim was minimal this will not be enough to constitute force. Review your materials on robbery, in particular P and others v DPP.
A woman goes into the local shop and tells the shopkeeper, who is behind the counter, that she knows the house where the shopkeeper’s mother lives, several villages away. The woman says that unless the shopkeeper gives her five packets of cigarettes, she will break the mother’s leg. The shopkeeper is on the telephone to his mother who hears the woman’s threat and is terrified. The shopkeeper gives the woman the cigarettes.
Has the woman committed robbery?
The woman has committed robbery if the shopkeeper’s mother fears she will carry out her threat.
The woman has not committed robbery because the shopkeeper agrees to give her the cigarettes.
The woman has not committed robbery because any force the shopkeeper’s mother might fear will be in the future.
The woman has not committed robbery if she does not know that the shopkeeper’s mother is terrified.
The woman has committed robbery as the shopkeeper is put in fear then and there that his mother will be subjected to force.
The woman has not committed robbery because any force the shopkeeper’s mother might fear will be in the future.
Correct. This answer reflects the wording of s 8(1) Theft Act 1968 and the requirement that a person is put in fear of being then and there subjected to force. The intended victim of the force (here the shopkeeper’s mother) is not present and lives several villages away, so any force would be in the future.
The other options are incorrect.
In the absence of a use of force, it must be shown that someone fears that they will be subjected to force there and then or that the defendant seeks to make them fear this. Sometime in the future is not enough.
The full offence of theft must be established before considering the other elements of the robbery offence. Appropriation can occur even where the owner consents to it, see R v Gomez.
It is not enough that someone fears that force will be used on another person. The person threatened must fear that they will be subjected to force then and there.
A boy really wants to become a scout. However, the scout group in the area where he lives is full, with a long waiting list. The boy’s mother fills in the application form for a scout group in a neighbouring area, giving his address as her sister’s house which is in that area.
Has the mother committed an offence of fraud by false representation?
The mother will only have committed fraud by false representation if the jury decides she is dishonest.
The mother will only have committed fraud by false representation if the scout group she has applied to restricts entrance to children from a specified area and the jury decides she is dishonest.
The mother will only have committed fraud by false representation if the boy gets a place in the scout group in the neighbouring area.
The mother will not have committed fraud by false representation as she does not intend to make a gain for herself, she intends to make a gain for her son.
The mother will not have committed fraud by false representation as there is no intent to gain or cause loss by her false representation.
The mother will not have committed fraud by false representation as there is no intent to gain or cause loss by her false representation.
Correct. Section 5(2)(a) states that the gain or loss must be in money or other property. The mother does not intend to make such a gain or cause such a loss.
The other answers are incorrect because they do not make this point.
The gain or loss must be in money or other property, whether real or personal.
It is not necessary that the gain be for the person making the false representation. The defendant must intend to make a gain for themselves or another or cause loss to another.
There is no requirement that the mother’s false representation achieves what she wishes to gain i.e. it doesn’t matter whether the scout group restrict entrance to children from a specified area or whether son gets a place in the neighbouring scout group or not. All that is required is that the mother intended to make a gain, even if no such gain arose.
The mother has not committed a fraud in these circumstances, but a possible lack of dishonesty is not the reason why.
An art dealer displays a painting depicting Hong Kong harbour in the 19th century. It is marked ‘artist unknown.’ The art dealer does not know the name of the artist, but the third party from whom he bought the picture said it was painted by a friend of his. A buyer comes into the gallery and expresses interest in the painting. The art dealer says he believes the artist to be a famous 19th century painter who spent much time in Asia, but he has no proof of this. The buyer has not heard of the famous 19th century painter and is not interested in the picture’s origin. The buyer purchases the painting for £40,000 because he likes it.
Is the art dealer criminally liable for fraud by false representation?
He is not be liable for fraud by false representation as the art dealer has not made a false representation.
He is liable fraud by false representation as has clearly overcharged the buyer.
He is not liable for fraud by false representation as his comment about the famous 19th century painter did not influence the buyer in making the purchase.
He is liable for fraud by false representation.
He is not liable for fraud by false representation if the art dealer honestly believes that the buyer would have the purchased the painting anyway, knowing its real origins.
He is liable for fraud by false representation.
Correct. The art dealer has made a false representation as to his state of mind. This is included in the definition of representation in s 2(3) Fraud Act 2006. He intends to make a gain in terms of money paid for the painting and the jury are likely to consider him to be dishonest on the Ivey v Genting Casinos test.
The other options are incorrect or not the best answer.
While the art dealer is criminally liable for fraud by false representation, overcharging is not the reason why. The cases of overcharging in Silverman and Jones have been applied in circumstances of mutual trust or where the defendant has been a trusted friend; the facts do not suggest this.
The art dealer has made a false representation as to his state of mind, s 2(3) Fraud Act 2006. The art dealer says he believes the artist to be a famous 19th century painter who spent much time in Asia, but he has no proof of this. However, he knows the picture was painted by a friend of the third party he bought the painting from.
It doesn’t matter that the art dealer’s comment about the famous 19th century painter did not influence the buyer in making the purchase. It is not necessary to show a causal link between the representation and what the person making it hopes to achieve.
It doesn’t matter if the art dealer honestly believes that the buyer would have the purchased the painting anyway, knowing its real origins. The negative definitions of dishonesty contained in the Theft Act 1968, section 2(1) do not apply to offences under the Fraud Act 2006. While this might be a relevant consideration if the art dealer was charged with theft, section 2(1)(b) Theft Act 1968 is irrelevant when considering whether the art dealer is criminally liable for fraud by false representation.
A hairdresser runs a small business from a converted garage at her home. She gives her clients that are over 65 years old a 25% reduction. One day she sees an article about one of her clients in a newspaper. She discovers that her 85-year-old client, whose hair she has been doing for 15 years, is extremely rich. The next time that client comes to have her hair done, the hairdresser charges the client the full price, saying she is no longer giving a 25% reduction for those over 65 years old. This is untrue.
Which of the following best explains the hairdresser’s criminal liability for fraud?
The hairdresser will be liable for fraud by abuse of position because she has lied, she is therefore dishonest.
The hairdresser will be liable for fraud by false representation because she has lied, she is therefore dishonest.
The hairdresser will be liable for fraud by abuse of position because she occupies a position where she would be expected to safeguard or not act against the client’s financial interests.
The hairdresser will not be liable for a fraud offence.
The hairdresser will be liable for fraud by false representation if she is found to be dishonest.
The hairdresser will be liable for fraud by false representation if she is found to be dishonest.
Correct. This best explains the hairdresser’s criminal liability for fraud as she has clearly made a false representation with an intention to make a gain in money terms (the increased payment). The false representation is that she is no longer giving a 25% reduction.
Her liability for fraud by false representation will hinge on dishonesty. Just because she has lied does not make her dishonest, see **R v Clarke. **A jury may find her not to be dishonest on the Ivey v Genting Casinos test in these circumstances.
Fraud by abuse of position is unlikely to apply as, although the hairdresser and the client have a long relationship and the client probably trusts her, this relationship concerns nothing of a financial safeguarding nature. It is by no means certain that she occupies the position required for fraud by abuse of position – that she would be expected to safeguard or not act against the client’s financial interests.Whether such a relationship is capable of arising on the facts is a question for the judge to decide on a case by case basis then the jury determine if they are sure that was case. See R v Valujevs and another.
A woman lost her job and claimed benefits. Later, she acquired well-paid employment. She did not inform the benefits office of her new income, so the benefits continued to be paid into her bank account. She did not spend the continuing benefits as she is saving them for a deposit for a house.
Which of the following best describes the woman’s liability for fraud?
The woman will be liable for fraud committed by abusing the position she occupied in which she was expected to safeguard or not act against the financial interests of any other person.
The woman will not be liable for fraud by failure to disclose until she spends the money paid into her account after she gained her new employment.
The woman will be liable for fraud by false representation as she has made an implied representation by conduct that she is still unemployed.
The woman will be liable for fraud by failure to disclose information which she was under a legal duty to disclose.
The woman will be liable for fraud by false representation, failure to disclose and abuse of position.
The woman will be liable for fraud by failure to disclose information which she was under a legal duty to disclose.
Correct. The facts of this case are very similar to those in R v Mashta. The answer reflects the wording of s 3 Fraud Act 2006 which is committed where a defendant dishonestly fails to disclose to another person information which he/she is under a legal duty to disclose. The woman fails to inform the benefits office of her employment, which she is legally required to do. She is dishonest and intends to make a gain for herself by keeping the money she has received.
The other answers are incorrect.
The actus reus of fraud by failure to disclose is committed as soon as she obtains the new job and fails to inform the benefits office of her employment.
She does not occupy a position in which she is expected to safeguard or not act against the financial interests of any other person for the purposes of fraud by abuse of position.
The case of R v Twaite suggests that pure silence, without an accompanying action, as in Idrees v DPP, cannot amount to a representation for the purposes of fraud by false representation.
A man applies for car insurance and fails to put on the form that he made a large claim from the Motor Insurance Bureau. The Motor Insurance Bureau is an organisation which pays out money on behalf of uninsured drivers and the man’s claim arose after an uninsured drunk driver crashed into the man’s parked car.
Which of the following explains the man’s liability for fraud by failing to disclose information he is under a duty to disclose?
He will not be liable if the insurance company would have kept his premium the same if they knew about the previous claim
The man will not be liable as the previous claim does not make him more likely to make a future claim
The man may not be liable as a jury may find him honest if he believes that the previous claim does not make him more likely to make a future claim
He will not be liable as the insurance contract is invalid due to his failure to mention the claim, so the insurance company will not suffer any loss
The man will not be liable if he believes that the previous claim does not make him more likely to make a future claim
The man may not be liable as a jury may find him honest if he believes that the previous claim does not make him more likely to make a future claim
Correct. Although the actus reus aspect of the offence is made out in that he has failed to disclose information which he is under a duty to disclose, the mens rea of the defendant is less clear. The man’s knowledge and beliefs will be considered by the jury when applying the test in Ivey v Genting Casinos and deciding whether he is dishonest by the standards of ordinary decent people and he might be found not to be dishonest. He does have an intent to gain money (a reduced insurance premium) by his omission, which is presumably why he did not put it on the form.
The other options are incorrect or not the best answer.
Just because the man believes that the previous claim does not make him more likely to make a future claim, doesn’t mean that the jury will agree and find him honest.
The defendant must intend to make a gain for himself or another, or to cause loss to another. It is not necessary to show any gain or loss in fact. Whether in fact the previous claim does not make him more likely to make a future claim is irrelevant.
There is no need for a causal link between the failure to disclose and the gain or loss of money or property. Whether the insurance company would have kept his premium the same if they knew about the previous claim is irrelevant. It would also be irrelevant if the insurance contract was invalid due to his failure to mention the claim, for the same reason.
A man is sitting on a train late at night. There are several other people in his carriage. A drugs dealer who the man has recently swindled in a drugs deal, comes into the carriage and sits on the seat next to the man, blocking him in. The dealer whispers ‘Don’t worry – I’m not going to smash your face in with all these people about.’ The man knows the train is due at its final destination in two minutes and is frightened. The dealer sees this and is pleased.
Which of the following best explains whether the dealer has committed an assault?
The dealer has not committed an assault as although the man apprehends violence, it is not immediate.
The dealer has committed an assault as he has caused the man to apprehend immediate unlawful personal violence.
The dealer has not committed an assault as he did not have the mens rea.
The dealer has committed an assault as the man is frightened.
The dealer has not committed an assault because words can negate an assault.
The dealer has committed an assault as he has caused the man to apprehend immediate unlawful personal violence.
Correct. Immediate does not mean instantaneous. See Smith v Superintendent of Woking Police Station. It was held by Lord Steyn in R v Ireland that it could be in the next couple of minutes. In the next couple of minutes, the train will reach its final destination and the other people in the carriage will have gone. The man fears being hit at this point which would count as immediate violence. It is very likely that the dealer had intention to cause the man to apprehend immediate violence from the moment he sat down, but certainly he has it when he is pleased the man is frightened and at this point his act of causing the apprehension of immediate unlawful personal violence is still continuing.
The other options are incorrect.
While words can negate an assault, they do not automatically do so. Ultimately, liability will depend on whether the victim did apprehend unlawful personal violence. This scenario can be distinguished from the case of **Tuberville v Savage. **The words ‘Don’t worry – I’m not going to smash your face in with all these people about’ are unlikely to negate an assault in these circumstances because the train is due at its final destination in two minutes.
Evidence that the victim is frightened of the defendant is not sufficient to establish assault. The victim must apprehend immediate and unlawful personal violence.
Liability may be established so long as the defendant has mens rea at some point during the continuation of the actus reus of assault, see Fagan v Metropolitan Police Commissioner. It is very likely that the dealer had the mens rea from the moment he sat down, but he certainly has it when he is pleased the man is frightened and at this point his act of causing the man to apprehend immediate unlawful personal violence is still continuing and intentional.
Immediate does not mean instantaneous. See Smith v Superintendent of Woking Police Station. It was held by Lord Steyn in R v Ireland that it could be in the next couple of minutes. Review your materials on assault, in particular the meaning of immediate.
A youth has been kept inside by his mother after she discovered he has been delivering drugs for a gang. The youth’s handler telephones the mother and says, ‘I am outside your house with a brick which I am ready to put straight through your window. Let him out to do his job or you will regret it.’ In fact, the handler is 20 miles away. The mother, fearing that she and her son were about to get hurt, lets her son out.
Which of the following best explains whether the handler has committed an assault?
The handler will have committed an assault only if the mother feared she would be hurt by the brick or by broken glass should the handler carry out his threat
The handler will not have committed an assault as he cannot carry out his threat immediately
The handler will not have committed an assault as he gave the woman an option to avoid any harm and she took it
The handler will have committed an assault if he saw the risk that the mother would apprehend immediate unlawful personal violence
The handler will not have committed an assault as he has threatened to do criminal damage rather than apply personal violence
The handler will have committed an assault if he saw the risk that the mother would apprehend immediate unlawful personal violence
Correct. The mother has apprehended immediate unlawful personal violence. There is no requirement that the handler be able to carry out his threat, as held in Logdon v DPP. The mens rea is intention or recklessness as to causing another to apprehend immediate unlawful personal violence. It is very likely that the handler saw the risk of his words having this effect.
The other options are incorrect.
Where the victim does apprehend immediate and unlawful personal violence, the violence apprehended need not be the same violence as that threatened.
A conditional threat may be the basis of liability for an assault so long as the victim did apprehend immediate and unlawful personal violence.
A boy balances a bucket of water on the top of the art room door. When the art teacher pushes open the door, the bucket falls. The bucket does not hit the teacher, but she is covered in water.
Which of the following best explains whether the boy committed a battery?
The boy has committed a battery indirectly
The boy has committed battery directly
The boy has not committed a battery as the bucket missed the teacher but has committed an attempted battery
The boy has not committed a battery, as he applied force indirectly
The boy has not committed a battery as the teacher broke the chain of causation by pushing open the door
The boy has committed a battery indirectly
Correct. All the elements of battery are made out. The boy has applied unlawful force to the teacher by an indirect battery. It does not matter that the force felt by the water was not hard. Collins v Wilcockheld that the merest touch counts as force. It seems the boy intended to apply unlawful force to the teacher, at least by the water falling over her.
The other options are incorrect.
Water falling over a victim will be considered the application of force, so it is not an attempted battery.
The teacher did not break the chain of causation by opening the door as her act was not a free, deliberate and informed act, R v Pagett. It is not an informed act as she does not know about the bucket.
A direct battery would be the boy hitting the art teacher or hitting the art teacher with the bucket.
Force can be applied indirectly. This scenario is similar to DPP v K where acid hitting a face from a hand dryer counted as battery.
The leading actor in a play has upset the theatre staff by being arrogant, rude and demanding. A stagehand decides to teach the actor a lesson. He slips a drug into the wine glass from which the actor drinks during the play. The drug has a devastating effect. When the actor stands up and walks across the stage, he appears to be drunk. He tries to speak but cannot remember his words. Finally, he is sick all over the stage. The audience laughs. The effect of the drug wears off in the next 30 minutes, but the actor is very upset and feels humiliated. He gives up his part in the play. Despite not being particularly famous, he is reluctant to leave his house as he worries about appearing in public, believing everyone will recognise him and laugh at him again.
Has the stagehand caused the actor grievous bodily harm?
The stagehand will have caused the actor grievous bodily harm if what the actor is suffering from is a serious recognised psychiatric illness
The stagehand has not caused the actor grievous bodily harm because serious physical injury is needed
The stagehand has caused grievous bodily harm if the actor perceives the harm done to him to be serious
The stagehand will have caused the actor grievous bodily harm if what the actor is suffering from is a recognised psychiatric illness as all such illnesses are serious
The stagehand has caused the actor grievous bodily harm as he caused the actor to feel emotions such as upset and worry
The stagehand will have caused the actor grievous bodily harm if what the actor is suffering from is a serious recognised psychiatric illness
Correct. Grievous bodily harm means serious harm, R v Saunders. A recognised psychiatric illness can be actual bodily harm (R v Chan Fook) or grievous bodily harm if serious (R v Ireland).
The other options are incorrect.
A serious psychiatric illness may amount to grievous bodily harm, R v Ireland, but not all psychiatric illnesses will be considered serious.
Mere emotions such as distress, fear or panic do not count as bodily harm, so cannot amount to grievous bodily harm, **R v Chan Fook. **
Whether the harm done constitutes serious harm will be assessed objectively and not merely on the basis of the victim’s perception. Psychiatric injury may amount to GBH if sufficiently serious, but its cause and effect will need to be proved by expert evidence, R v Ireland.
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The stagehand has not caused the actor grievous bodily harm because serious physical injury is needed
Incorrect. Where there was is no serious physical injury, serious psychiatric harm will suffice, **R v Ireland. **Review your materials on grievous bodily harm, in particular psychiatric harm.
A man spends the evening in the pub and returns home extremely drunk. He takes the lift to his first floor flat and the movement of the lift causes him to vomit all over the lift. This is damage of property belonging to another as effort will have to be expended to return the lift to its original state.
Does the man have the mens rea for basic criminal damage?
The man will have the mens rea as voluntary intoxication is no defence to this basic intent crime
The man does not have the mens rea as he did not intend to vomit in the lift
The man will have the mens rea if when sober, he would have seen the risk of vomiting in the lift while drunk
The man will have the mens rea as a reasonable person would have seen the risk that a person might vomit in a lift when drunk
The man does not have the mens rea as voluntary intoxication is a defence to this specific intent crime
The man will have the mens rea if when sober, he would have seen the risk of vomiting in the lift while drunk
Correct. The man is voluntarily intoxicated, this is a basic intent crime and the jury will be asked this question, as per R v Coley, McGhee and Harris. The answer will depend on whether the man tends to be sick when very drunk and whether it has happened before in similar circumstances.
The other options are incorrect.
The mens rea for basic criminal damage is intention or recklessness as to destroying or damaging to property belonging to another. Mens rea is not confined to intention.
Criminal damage is a basic intent crime not a specific intent crime. An intoxicated defendant will be deemed to be reckless as to causing damage if they would have seen the risk of causing damage when sober.
The test for recklessness is a subjective one (not an objective, reasonable person test). The defendant must see the risk, in this case of causing damage to property belonging to another, and it must be an unreasonable risk to take in the circumstances known to the defendant.
A new accountant was brought into the man’s office to be introduced. The accountant said ‘hello’ and the man smiled and grasped her hand to shake it. The new accountant pulled her hand away, as she had severe eczema which made contact with her hand painful.
Did the man commit the offence of battery?
This was a battery as the woman did not consent to having her hand shaken
This was not battery as a handshake cannot be described as force
This was a battery as a handshake can be described as force
This was not battery as the man was friendly rather than hostile or aggressive
This was not a battery as the man did not have the mens rea for the offence
This was not a battery as the man did not have the mens rea for the offence
Correct. The actus reus of battery took place when the man grasped her hand as the merest touch constitutes force (Collins v Wilcock), and there is no need for the force to be hostile, rude or aggressive (Faulkner v Talbot). Not all applications of force satisfy the requirements of a battery offence. The use of force must be unlawful, for example without consent, and must be accompanied with the relevant mens rea.
The mens rea is intentional or reckless use of unlawful force on another person. The man intended to and did apply force to the accountant, but not unlawful force. The man would not have realised that the accountant would not have consented to the everyday courtesy of shaking hands- he would have honestly believed the accountant consented. The defence might argue that this is covered by implied consent, the kind of everyday physical contact that is accepted to move around in society (Collins v Wilcock).
A woman picks some wild mushrooms while out on a walk. She brings them home and cooks them. When she tells her husband and son that the mushrooms had been growing wild, the son suggests they might be poisonous and says he is not going to eat them. The woman also decides not to eat any, but her husband says, ‘Don’t be silly. They smell delicious and I’m happy to take the risk, so I’ll eat them.’ The woman puts them on toast and gives them to her husband. He eats them and suffers kidney failure.
Is the woman liable for an offence under s 20 Offences Against the Person Act 1861?
She will not be liable as the husband consented
She will not be liable as there was no causal link between her acts and the husband’s kidney failure
She will be liable as she saw the risk of causing some harm
She will be liable as she saw the risk of causing actual bodily harm or worse
She will be not be liable as she did not intend any harm
She will not be liable as there was no causal link between her acts and the husband’s kidney failure
Correct. To satisfy the mens rea of a s 20 OAPA 1861 offence, the defendant must intend to cause some harm, or see a risk of causing some harm to someone. Although the woman saw the risk of causing her husband some harm which constitutes the mens rea of the offence, the actus reus is incomplete. Kidney failure constitutes serious harm, but it was not caused by the woman. Factual causation is satisfied as but for the woman’s act in serving the man the mushrooms, he would not have suffered grievous bodily harm. However, there is no legal causation because the man’s decision to eat the mushrooms was a free, deliberate and informed act which broke the chain of causation. As in R v Kennedy, he knew there was a possibility that the mushrooms would do him harm and deliberately took the risk.
The husband did consent to take the risk and eat the mushrooms. However, it is not possible to consent to actual bodily harm or worse for no good reason as held by the House of Lords in R v Brown. This rule applies where harm that amounts to actual bodily harm or above, was intended or foreseen by the defendant, as it was here. There are no relevant exceptions that apply here.
A woman, who never drinks alcohol, goes to a party. One of her friends thinks it would be funny to get her drunk. Her friend gives the woman fruit punch laced with vodka. The woman enjoys the punch, drinks several glasses and becomes very drunk. She tells the friend that she feels odd, and the friend explains that is because the punch is full of vodka. As a result, the woman pours the contents of her glass into the dog’s water bowl. The dog, which is small, drinks the contents of its bowl and becomes ill. The woman has damaged property belonging to another.
Does she have the mens rea for simple criminal damage?
She does not have the mens rea because she is intoxicated
She will have the mens rea if she would have seen the risk of damaging the dog had she been sober
She has the mens rea because she is intoxicated
She will have the mens rea if she saw the risk of damaging the dog even though drunk
She does not have the mens rea as she did not intend to endanger the life of the dog
She will have the mens rea if she saw the risk of damaging the dog even though drunk
Correct. This is involuntary intoxication. This can be used as a ‘defence’ to both specific and basic intent crimes, DPP v Majewski. Simple criminal damage is a basic intent crime. She can use evidence of her intoxication to show she did not form the mens rea. The mens rea of simple criminal damage is intention or recklessness as to damaging property belonging to another. She can use her drunken state to show she did not see a risk of damaging the dog. However, if she did see the risk, she will be liable as a drunken intent is still an intent, R v Kingston.
The other options were incorrect.
· She will have the mens rea if she would have seen the risk of damaging the dog had she been sober- this is the test for basic intent crimes when the defendant is voluntarily intoxicated, R v Coley, McGhee and Harris.
· She does not have the mens rea because she is intoxicated- her involuntary intoxication does not operate as an automatic defence.
· She has the mens rea because she is intoxicated- this is not the test for a basic intent crime, even when the defendant is voluntarily intoxicated, see R v Coley, McGhee and Harris.
She does not have the mens rea as she did not intend to endanger the life of the dog- the mens rea of simple criminal damage is intention or recklessness as to damaging property belonging to another. It would be enough if she saw the risk of damaging the dog.
An eighteen-year-old girl is having a party when strangers that have not been invited arrive and go into the back garden where the party is taking place. The girl confronts one of the strangers and tells him to leave or she will call the police. He replies, ‘Not before I have had a kiss’ and puts his arm round the girl, attempting to kiss her. One of the girl’s friends picks up an empty beer bottle and smashes it on the stranger’s head.
Which of the following best describes the question(s) the jury will be asked to consider in relation to the friend’s response for the purposes of self-defence?
The jury will be asked to consider if the force was reasonable which means proportionate
The jury will be asked to consider if the force was grossly disproportionate
The jury will be asked to consider if the force was proportionate
The jury will be asked to consider if the force was reasonable, but it does not matter if it was disproportionate, as the exact measure of force cannot be weighed to a nicety
The jury will be asked to consider if the force was grossly disproportionate, and if not, was it reasonable?
The jury will be asked to consider if the force was reasonable which means proportionate
Correct. The answer reflects the wording of s 76 Criminal Justice and Immigration Act 2008. The friend must honestly believe that it was necessary to use force to protect another (the trigger), a subjective question. The force used must be reasonable (the response), an objective question, but judged on the facts as the defendant believed them to be.
The friend acted to protect the girl who, she honestly believed, was being attacked by the stranger. When assessing her response, this case should be identified as a non-householder case because, even though the stranger is a trespasser, one of the elements in the test for a householder case in s 76(8A) is missing. The force is not used by the friend while in a building, s 76(8A)(b). Therefore, the test is that the force must be reasonable. It will not be reasonable if it is disproportionate, s 76(6). In a non-householder case, to be reasonable, the force used must therefore be proportionate.
The other options are incorrect.
In a non-householder case, it is not appropriate to consider whether the force used by the defendant is grossly disproportionate.
While s 76(7)(a) states that the force cannot be weighed to a nicety, and s 76(7)(b) states that evidence that the defendant only did what they honestly and instinctively thought was necessary constitutes strong evidence that only reasonable action was taken by the defendant, it should also be noted that s 76(6) provides that force cannot be reasonable if it is disproportionate.
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The jury will be asked to consider if the force was grossly disproportionate, and if not, was it reasonable?
Incorrect. This is the test for a householder case. It will be a non-householder case if one of the elements of the criteria in s 76(8A) s 76 Criminal Justice and Immigration Act 2008 is missing. Here, the force is not used while in a building that is a dwelling house, s 76(8A)(b). In a non-householder case, it is not appropriate to consider if the force used is grossly disproportionate.
Review your materials on householder and non-householder cases. Ensure you can distinguish between these two types of cases and that you know the questions the jury will be asked to consider in relation to the response for each type of case.
An eighteen-year-old girl is having a party when strangers that have not been invited arrive and go into the back garden where the party is taking place. The girl confronts one of the strangers and tells him to leave or she will call the police. He replies, ‘Not before I have had a kiss’ and puts his arm round the girl, attempting to kiss her. One of the girl’s friends picks up an empty beer bottle and smashes it on the stranger’s head.
Which of the following best describes the question(s) the jury will be asked to consider in relation to the friend’s response for the purposes of self-defence?
The jury will be asked to consider if the force was reasonable which means proportionate
The jury will be asked to consider if the force was grossly disproportionate
The jury will be asked to consider if the force was proportionate
The jury will be asked to consider if the force was reasonable, but it does not matter if it was disproportionate, as the exact measure of force cannot be weighed to a nicety
The jury will be asked to consider if the force was grossly disproportionate, and if not, was it reasonable?
The jury will be asked to consider if the force was reasonable which means proportionate
Correct. The answer reflects the wording of s 76 Criminal Justice and Immigration Act 2008. The friend must honestly believe that it was necessary to use force to protect another (the trigger), a subjective question. The force used must be reasonable (the response), an objective question, but judged on the facts as the defendant believed them to be.
The friend acted to protect the girl who, she honestly believed, was being attacked by the stranger. When assessing her response, this case should be identified as a non-householder case because, even though the stranger is a trespasser, one of the elements in the test for a householder case in s 76(8A) is missing. The force is not used by the friend while in a building, s 76(8A)(b). Therefore, the test is that the force must be reasonable. It will not be reasonable if it is disproportionate, s 76(6). In a non-householder case, to be reasonable, the force used must therefore be proportionate.
The other options are incorrect.
In a non-householder case, it is not appropriate to consider whether the force used by the defendant is grossly disproportionate.
While s 76(7)(a) states that the force cannot be weighed to a nicety, and s 76(7)(b) states that evidence that the defendant only did what they honestly and instinctively thought was necessary constitutes strong evidence that only reasonable action was taken by the defendant, it should also be noted that s 76(6) provides that force cannot be reasonable if it is disproportionate.
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The jury will be asked to consider if the force was grossly disproportionate, and if not, was it reasonable?
Incorrect. This is the test for a householder case. It will be a non-householder case if one of the elements of the criteria in s 76(8A) s 76 Criminal Justice and Immigration Act 2008 is missing. Here, the force is not used while in a building that is a dwelling house, s 76(8A)(b). In a non-householder case, it is not appropriate to consider if the force used is grossly disproportionate.
Review your materials on householder and non-householder cases. Ensure you can distinguish between these two types of cases and that you know the questions the jury will be asked to consider in relation to the response for each type of case.
A man was driving his speed boat pulling his friend on water skis. As required for safety, a third person was in the boat to watch the water skier. The boat driver should have been looking forwards. Instead, he was looking back at the water skier, gesturing to him to be more adventurous and cross the wash. Because the driver was not looking forward, the boat hit a swimmer who had come a long way from the shore. The swimmer was killed.
Which of the following best describes the offence the man is potentially criminally liable for?
He could be liable for unlawful act manslaughter as the swimmer was killed by an act rather than an omission
He could be liable for unlawful act manslaughter as it is easier to prove that the act was dangerous than that it was grossly negligent
He could be liable for murder as it was virtually certain that the swimmer would suffer serious harm
He could be liable for unlawful act manslaughter or gross negligence manslaughter
He could be liable for gross negligence manslaughter
He could be liable for gross negligence manslaughter
Correct. It will not be murder as there is no direct or oblique intention to kill or cause serious harm to someone. It was not the driver’s aim or purpose, nor did he appreciate that it was virtually certain that the swimmer would die or suffer serious harm. As the man has caused the death of another but lacks mens rea for murder, he may be liable for involuntary manslaughter. Driving a speed boat is not an unlawful act in itself (although driving the boat dangerously may make it unlawful), so it is not an unlawful act sufficient for unlawful act manslaughter, Andrews v DPP. Gross negligence manslaughter will apply as the man owes a duty of care to the swimmer which has been breached and this causes the death; the breach carries a risk of death and is potentially so serious as to warrant criminal sanction, R v Adomako.
A man is standing at the top of steps leading onto an aeroplane, arguing with a member of the cabin crew who tells him there is no room for his large hand luggage on board and that it would have to go into the hold. An elderly woman behind him shouts, ‘Come on, don’t be so selfish, we are all waiting to board.’ At that the man turns, puts his face up close to the woman’s and screeches at her, ‘Mind your own business and shut up or I’ll punch you.’ The woman takes a step back in fear and it is only the boy behind, gripping her elbow, who prevents her and others from falling down the steps. She then suffers a heart attack from which she dies. It transpires that she had narrow arteries leading to her heart. The man has been charged with unlawful act manslaughter.
Which of the following best explains whether the man’s act was dangerous?
The act will be considered dangerous if a reasonable person saw the risk that the woman might suffer serious harm as a result of the man’s act
The act will be considered dangerous due to the thin skull rule
The act will be considered dangerous if the man saw the risk that the woman might suffer harm as a result of his act
The act was not dangerous as the reasonable person would not have known that the woman had a weak heart
The act will be considered dangerous if a reasonable person would have seen the risk of the woman falling down the aircraft steps
The act will be considered dangerous if a reasonable person would have seen the risk of the woman falling down the aircraft steps
Correct. This is the test from **R v Church: **‘the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm.’
The test of whether an act is dangerous is an objective test (from the perspective of the reasonable person) rather than a subjective one (from the perspective of the defendant, here the man).
The act is dangerous if a reasonable person would recognise it must subject the other person to the risk of some harm, not necessarily serious harm.
Although the reasonable person has the same knowledge as the man at the time the unlawful act is committed, R v Dawson, and so would not have known of the woman’s heart condition, it was held in R v JM and SMthat the type of harm foreseen (falling down the aircraft steps) does not have to be the type of harm actually caused (the heart attack).
The thin skull rule relates to whether the man caused the death of the woman which is the fourth aspect of unlawful act manslaughter.
All the other elements of unlawful act manslaughter are satisfied: the man intentionally committed an assault (a crime) on the woman, and this caused her to suffer a heart attack from which she died.
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The act will be considered dangerous if a reasonable person saw the risk that the woman might suffer serious harm as a result of the man’s act
Incorrect. This overstates the level of harm that the reasonable person has to foresee. Review your materials on unlawful act manslaughter, in particular the test from R v Church for what constitutes a dangerous act.
The act will be considered dangerous if the man saw the risk that the woman might suffer harm as a result of his act
Incorrect. The test of whether an act is dangerous is an objective test (from the perspective of the reasonable person) rather than a subjective one (from the perspective of the defendant, here the man). Review your materials on unlawful act manslaughter, in particular the test from R v Church for what constitutes a dangerous act.
The act was not dangerous as the reasonable person would not have known that the woman had a weak heart
Incorrect. Although it is correct to say that the reasonable person has the same knowledge as the man at the time the unlawful act is committed, R v Dawson, and so would not have known of the woman’s heart condition, it was held in R v JM and SMthat the type of harm foreseen by the reasonable person (falling down the aircraft steps) does not have to be the type of harm actually caused (the heart attack). Review your materials on unlawful act manslaughter, in particular the test from R v Church for what constitutes a dangerous act.
The client has been charged with unlawful act manslaughter. She was acting as a security guard at a nightclub. The victim was causing trouble in the club so she ejected him. Shortly afterwards, he returned and rushed at her shouting ‘nobody throws me out of a club’. She pushed him in the chest and he fell over. The victim hit his head on the pavement and sustained injuries from which he died.
Which one of the following is the best advice to give to the client?
She should plead not guilty as she has not committed an intentional, voluntary act
She should plead guilty to unlawful act manslaughter
She should plead not guilty as she has not committed an unlawful act
She should plead not guilty as her act was not dangerous
She should plead not guilty as she has not caused the death of the victim
She should plead not guilty as she has not committed an unlawful act
Correct. She is acting to protect herself from an perceived imminent attack by the victim and, if her action is considered to be reasonable, the defence of self-defence will operate making her act lawful, R v Scarlett.
The other options were incorrect.
Not all of the elements of unlawful act manslaughter are fulfilled, so the client should not plead guilty.
The client has intentionally pushed the victim in the chest which results in his death. She does not need to intend the consequences which flow from the push.
The unlawful act will be dangerous if a sober and reasonable person recognises it carries a risk of causing some harm to the other person, R v Church. Her act of pushing the man in the chest may be considered to be dangerous in that a sober and reasonable person would recognise it carries a risk of causing some harm to the victim.
She has caused the death of the victim in fact and in law. But for her push, the victim would not have fell, hit his head on the pavement and died, R v White. Her push is the substantial (more than de minimis) cause of the victim’s death, R v Hughes and operating cause, as there are no intervening acts to break the chain of causation.
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She should plead not guilty as her act was not dangerous
Incorrect. The unlawful act will be dangerous if a sober and reasonable person recognises it carries a risk of causing some harm to the other person, R v Church. Her act of pushing the man in the chest may be considered to be dangerous in that a sober and reasonable person would recognise it carries a risk of causing some harm to the victim. Please review your materials on unlawful act manslaughter, in particular the decision in **R v Scarlett **on what constitutes an unlawful act.
A client has been charged with gross negligence manslaughter. He is a safety engineer who failed to complete the necessary maintenance and repairs on construction equipment. This resulted in the death of a builder who was operating one of the faulty pieces of equipment.
Which of the following best explains how the judge will direct the jury on the meaning of gross negligence?
Whether, having regard to the risk of death involved, the conduct of the defendant fell below the standard expected of a reasonable person
Whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount to a criminal act or omission
Whether the defendant’s conduct was, on balance, below the standard to be expected of a reasonable person
Whether, having regard to the risk of death involved, the conduct of the defendant goes beyond compensation between subjects
Whether the defendant’s conduct was, beyond reasonable doubt, below the standard to be expected of a reasonable person
Whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount to a criminal act or omission
Correct. This is how the court in R v Adomako stated the jury should be directed on grossnegligence.The other options are incorrect. ‘On the balance of probabilities’ is the standard of proof which tends to be used in civil rather than criminal cases. ‘Compensation between subjects’ is the object of a civil action in Tort for negligence. The object of a gross negligence manslaughter prosecution is a criminal sanction for the defendant whose negligent act or omission shows such disregard for the life and safety of others that it is exceptionally serious and warrants punishment by the State.
A man hosts adventure trips for groups at his chalet. He has made sandwiches which contain some nut paste and sets out the picnic for the group. At lunchtime, the tour guide reminds the man that he left instructions on his voicemail to ensure none of the food contains nuts as the tour guide suffers from a nut allergy. The man did not pick up the voicemail but decides to say nothing as he knows how awkward the tour guide has been. The tour guide dies from an allergic reaction to the nuts.
Which of the following best explains the man’s liability for gross negligence manslaughter?
He may be liable as has voluntarily assumed a duty of care
He may be liable as there is a special relationship between the man and the tour guide
He is not liable as there is no duty of care
He may be liable as he created a dangerous situation so will be under a duty of care
He is not liable as this is a failure to act
He may be liable as he created a dangerous situation so will be under a duty of care
Correct. The basis of liability here is the man’s failure to warn the tour guide of the fact that the sandwiches are made with ingredients containing nuts. Although there is no general duty to act or to prevent harm, R v Smith (William), a failure to act may be the basis of criminal liability if there is a legal duty to act. The most appropriate duty here is based on the fact that the man has breached the duty he owed to the tour guide by creating a dangerous situation (R v Miller), that is by including ingredients containing nuts in the sandwiches, albeit innocently, but then failing to say anything to warn the tour guide when alerted to the allergy. For gross negligence manslaughter, the breach of the duty of care must be the cause the death, carry a serious risk of death and be so serious as to warrant criminal sanction.
The other options are incorrect, or not the best answer.
A voluntary assumption is not the most relevant legal duty to act on these facts. For example, Brett J stated in R v Nicholls that: ‘If a person chooses to undertake the care of a person who is helpless either from infancy, mental illness or other infirmity, he is bound to execute that responsibility and if he by gross negligence allows him to die he is guilty of manslaughter.’
A special relationship it is not the most relevant legal duty to act on these facts. Examples of special relationships are doctors and patients, parents and their children along with spouses.
A woman goes into a department store intending to take a bottle of perfume and leave without paying for it. The woman reaches for the bottle of perfume, ready to take it but then sees a security guard and pulls her hand back.
Which one of the following best describes the offence she may be criminally liable for?
Theft
Criminal damage
Attempted theft
Robbery
The woman will not be criminally liable for any offence
Attempted theft
This is the correct answer. The woman aims to dishonestly take the perfume belonging to the department store permanently. The only element that is missing is her appropriation (taking or even touching) of the perfume. It doesn’t matter that the department store consents to customers taking perfume bottles off the shelves generally, as appropriation can occur even with the consent of the department store (Gomez). The woman reaching for the perfume is likely to go beyond mere preparation and she will be considered to have embarked on the crime proper, like Tosti (examining a padlock) and **Jones **(in the car).
The other options while plausible were incorrect:
- She could be criminally liable for attempted theft.
- The woman has not yet completed the theft which would take place at the point that she appropriates the perfume bottle.
- As there is no theft here, so there can be no robbery.
- There has been no destruction or damage of property, so there can be no criminal damage.
A woman tells her friend that her boyfriend has been having affairs with other women and that, in revenge, she is going to his house that night to scratch the paintwork on his new car. The friend says ‘He deserves it. Go for it!’ The woman makes several prominent scratches on the car.
What is the friend’s liability as a secondary party to this criminal damage?
She has abetted the woman to commit criminal damage and is liable as a secondary party
She has counselled the woman to commit criminal damage and is liable as a secondary party
She has aided the woman to commit criminal damage and is liable as a secondary party
She is not liable as a secondary party as the friend would have committed the criminal damage in any event
She has procured criminal damage and is liable as a secondary party
She has counselled the woman to commit criminal damage and is liable as a secondary party
Correct. Counselling is giving advice or encouragement before the commission of the offence. There has been contact between the parties and a connection between the counselling and the offence, although it does not have to be shown that the friend’s words have had a positive effect on the woman’s conduct, see R vCalhaem.
The other options are incorrect or not the best answer.
She is criminally liable as has counselled the woman- there is no requirement for any causal link between the friend’s words and the woman’s commission of the offence here.
Abetting is incitement or encouragement at the time the offence is committed but this happens before the offence is committed. To procure is to produce by endeavour, that is to bring about the woman’s commission of the offence. The friend cannot be said to have caused the woman to commit the criminal damage here. To aid is to give assistance in the commission of the offence. On the facts the friend has not given the woman any assistance e.g. the location of the car or a method to scratch it.
A man was the lawful owner of several handguns. The man’s brother was always complaining about his neighbour whose dogs bark all night. The brother frequently said his life was intolerable and one day he would have to do something about the dogs or his neighbour. Last month the brother asked to borrow a handgun, saying, ‘I will use it just once and this will transform my life.’ The brother used it to shoot dead his girlfriend’s husband (the victim) and was convicted of murder.
Which of the following best explains the man’s liability as a secondary party to the murder?
The man will be liable because he caused the death of the victim, without his gun the murder would not have taken place
The man will not be liable if he did not foresee that his brother might kill or cause serious harm to the victim
The man will be liable if he knew his brother would use the gun for some unlawful purpose
The man will not be liable if he did not foresee that his brother might kill the victim
The man will be liable if he thought his brother might use the gun to either kill the dogs or kill his neighbour
The man will be liable if he thought his brother might use the gun to either kill the dogs or kill his neighbour
Correct. It is enough if the man assisted his brother in committing one of a number offences he had in contemplation, DPP for Northern Ireland v Maxwell. If the man envisaged his brother killing someone with the mens rea for murder, it does not matter if he does not know the details such as the victim or the day it would take place, R v Bainbridge.
The mental element in assisting or encouraging a crime is intention to assist or encourage. This requires knowledge of any existing facts necessary for it to be criminal and if the crime requires a particular intent, the man must intend to assist or encourage his brother to act with such intent.
The other options are incorrect.
· The man will be liable because he caused the death of the victim, without his gun the murder would not have taken place- it is not necessary to show there is a causal link between the assistance given by the man and the commission of the offence by his brother. Even if such a link can be established, it is not enough to assist in the murder committed by his brother. To be liable, the man must also have the relevant mens rea.
· The man will be liable if he knew his brother would use the gun for some unlawful purpose- this mens rea is not specific enough.
· The man will not be liable if he did not foresee that his brother might kill or cause serious harm to the victim- if the man intends to give his brother the means to commit a crime but it remains unclear what his brother might do, the man may be liable for the offence committed by his brother if he intends his brother to act with the relevant mens rea.
incorrect
The man will be liable if he knew his brother would use the gun for some unlawful purpose
Incorrect. This mens rea is not specific enough. It would be enough if the man assisted his brother in committing one of a number offences he had in contemplation, DPP for Northern Ireland v Maxwell. Review your materials on secondary parties, in particular the mens rea for accessorial liability and R v Jogee.
Two boys were throwing large stones at the windows of a disused factory. The victim heard the noise of breaking glass and ran towards the boys yelling at them to stop. Both boys laughed and each picked up another stone and threw it in the direction of the victim. One of these stones hit the victim who suffered a fractured skull. Each boy denied it was their stone which hit the victim.
Can the boys be convicted of s 20 Offences Against the Person Act 1861?
Both boys can be convicted as they were joint principals taking part in a joint enterprise
Neither boy can be convicted as the joint enterprise was to do criminal damage
Neither boy can be convicted as it cannot be proved which one was the principal offender that threw the stone which hit the victim
Both boys can be convicted as they were taking part in a joint enterprise and each one was either the principal or a secondary party
Neither boy could be convicted as they merely threw stones in the direction of the victim, not at the victim
Both boys can be convicted as they were taking part in a joint enterprise and each one was either the principal or a secondary party
Correct. The general rule is if it cannot be proved which of two people committed the crime, both must be acquitted. However, if it can be proved that the one who did not commit the crime as the principal was a secondary party to the crime, then both can be convicted, R v Russell and Russell. Here the boy whose stone did not hit the victim was a secondary party. The boys were on a joint enterprise to damage the property. The s 20 OAPA 1861 offence arose from that joint enterprise and they each would have known that the other would act with the mens rea for s 20 i.e. have seen the risk of causing some harm to a person.
The other options are incorrect.
Where two or more parties are committing a crime together as part of a joint enterprise and one party goes on to commit another crime, the other party is not to be considered automatically as a joint principal for the new offence.
Where two or more parties are committing a crime together (in a joint enterprise), but one party goes on to commit another crime, it is not necessary to show that the other party aided or encouraged the new crime. It is sufficient that the other party was a party to the joint enterprise and had the relevant mens rea for an accessory.
incorrect
Both boys can be convicted as they were joint principals taking part in a joint enterprise
Incorrect. While they were joint principals for the criminal damage, this is not the case for the s 20 OAPA 1861 offence. The boy whose stone hit the victim was the principal and the other was a secondary party. Review your materials on parties to a crime, in particular the meaning of principal offenders, joint enterprise and accessories.
A woman hates her neighbour who is a drug dealer. One day, the woman returns home and sees her neighbour doing repairs to his car at the front of his house. Shortly afterwards, she looks out of a window facing over the gardens at the back of the houses and sees a figure squeezing through a window into the neighbour’s house. She goes to the front of the house and sees her neighbour is about to go into his house. She goes outside and engages him in conversation for 10 minutes to give the intruder more time. The intruder leaves the house with several thousand pounds in cash.
Which of the following best describes the woman’s liability for burglary?
She will not be a secondary party as the burglary occurred when the intruder entered the house which was before her act of assistance
She will not be a secondary party to the burglary as there is no causal link between her assistance and the offence
She will be a secondary party to a s 9(1)(b) burglary as she has aided in the intruder’s commission of the offence
She will be a secondary party to a s 9(1)(a) burglary as she has aided in the intruder’s commission of the offence
She will not be a secondary party to the burglary as the intruder was unaware that they were being aided
She will be a secondary party to a s 9(1)(b) burglary as she has aided in the intruder’s commission of the offence
Correct. To aid is to give assistance, help or support to the principal party in carrying out the offence at any stage before or during the commission of the offence. It is not necessary to show a causal link between the assistance and the commission of the offence or a consensus between the secondary party and the principal. When she gave assistance, the intruder may have already appropriated the cash. However, it was held in R v Hale that appropriation is not an instantaneous act. It was also held that a jury is likely to find the act is still continuing while the intruder is on the premises. So, the appropriation (theft) is still continuing, and the s 9(1)(b) Theft Act 1968 burglary is still continuing. There is no need for the intruder to know of the assistance and there is no need for the assistance to cause the burglary.
A man puts a lighted rag through a letter box. He wants to burn the house down. The flames destroy a rug and damages a chair and some coats in the hall, but all the doors from the hall are shut and the fire eventually burns itself out on the stone floor beneath the rug.
Is the man criminally liable for aggravated arson?
The man will not be liable as no life was endangered
The man will be liable if he intended or was reckless as to endangering life by burning the house down
The man will be liable because when damage is caused by fire, there is always a risk to life from the damaged property
The man will be liable because even if he did not intend to endanger life by the damaged property, there was an obvious risk of endangering life by burning the house down
The man will be liable if he intended or it was virtually certain that life would be endangered by burning the house down
The man will be liable if he intended or was reckless as to endangering life by burning the house down
Correct. See R v Dudley. The words destruction and damage in s 1(2) Criminal Damage Act 1971 refer to the destruction and damage intentionally or recklessly caused (burning down the house), not the destruction and damage which actually occurred (damage done to the rug, chair and coats). The man’s mens rea as to endangering life will be established by reference to the damage he intended or saw a risk of causing.
The other options are incorrect.
For aggravated criminal damage or aggravated arson, no life need be endangered in fact, R v Sangha.
If the man did not directly intend to endanger life, recklessness should be considered as an alternative rather than oblique intention.
What Lord Bridge said in R v Steer, is that in cases where D intended or saw a risk of endangering life by fire it will be from damaged property. He did not say that whenever D damaged property by fire there would be a risk of endangering life.
Where it is alleged that the defendant was reckless as to endangering life by the damage, the test as set out in R v G will be applied. Consider first whether the defendant did see the risk. Next, apply the objective test – was the risk seen by the defendant a reasonable one to take in the circumstances known to the defendant?
incorrect
The man will be liable because even if he did not intend to endanger life by the damaged property, there was an obvious risk of endangering life by burning the house down
Incorrect. Although aggravated criminal damage or aggravated arson can be committed recklessly, the full test from R v G must be satisfied. This answer does not accurately state the test of recklessness.
Review your materials on aggravated criminal damage and aggravated arson.
A farmer is on his farm with a shotgun for shooting vermin. Suddenly he is passed by a car being driven haphazardly by a child. He recognises the car as belonging to his tractor driver. The car is heading straight for the farmer’s own vehicle. The farmer raises his shotgun and shoots out two of the cars’ tyres. The farmer is charged with aggravated damage.
Which of the following best explains the application of the lawful excuse defences?
The farmer can only use the lawful excuse of belief in the owner’s consent as he has not used reasonable force to protect his car from immediate harm
The farmer cannot use the lawful excuses defences for an aggravated damage offence
The farmer can use both lawful excuse defences as he genuinely believes the tractor driver would consent and that his car is in immediate need of protection
The farmer cannot use the lawful excuse defences as he has neither the owner’s consent nor does he act reasonably to protect his own property
The farmer can use both lawful excuse defences as the reasonable person would believe in the owner’s consent and that his car is in immediate need of protection
The farmer cannot use the lawful excuses defences for an aggravated damage offence
Correct. Section 5(1) Criminal Damage Act 1971 states that the lawful excuse defences in s 5(2) do not apply to aggravated criminal damage or aggravated arson.
The other options, some of which are plausible if this was a case of simple criminal damage, are incorrect.
Both s 5(2)(a) and (b) are based on the defendant’s genuine beliefs, either in the owner’s consent or that the property to be protected is in immediate need of protection and that the means adopted by the defendant are reasonable. The fourth requirement of the defence under s 5(2)(b), introduced in case law such as R v Hunt, asks whether the steps taken by the defendant are capable of protecting the property. It does not require the steps to be reasonable.
Which of the following would NOT amount to part of the actus reus for an offence?
Conduct
Result
Omission
Intention
Circumstance
Intention
Correct, this is a principle of mens rea as it refers to a state of mind rather than an action.
A man is thrown out of a club for being too drunk, whilst outside he gets into a fight with the bouncer. The man punches the bouncer causing him to stagger backwards and hit his head on the wall behind him. The bouncer is knocked unconscious and the man runs away.
An ambulance is called and the bouncer is taken to hospital. Medical staff see that the bouncer has lost a lot of blood and arrange for a blood transfusion. They fail to read his medical notes properly and use the wrong blood type. The bouncer dies shortly after the blood transfusion procedure.
Which of the following best represents whether the man will be liable for murdering the bouncer?
The man will not be liable for murder as the poor medical treatment is more than minimal to causing the bouncer’s death.
The man will be liable for murder unless it can be shown that the poor medical treatment is so negligent and falls below the standard of ordinary medical treatment that would mean that there has been a break in the chain of causation.
The man will be liable for murder unless it can be shown that the poor medical treatment is the significant and substantial cause of the bouncer’s death as ‘but for’ the poor medical treatment the bouncer would not have died.
The man will not be liable for murder as the poor medical treatment is the significant and substantial cause of the bouncer’s death.
The man will be liable for murder unless it can be shown that the poor medical treatment is so independent from his actions and potent in causing the death that there has been a break in the chain of causation.
The man will be liable for murder unless it can be shown that the poor medical treatment is so independent from his actions and potent in causing the death that there has been a break in the chain of causation.
Correct, poor medical treatment would only break the chain of causation if it is so independent from the defendant’s original actions and it becomes the potent cause of death. In these circumstances, the medical treatment is not so independent as the blood transfusion is only required as a direct result of the man’s actions.
A brother and sister have a fight, during which the brother is knocked unconscious. The sister runs off. Soon after, a gang member appears and stabs the brother in the chest. He dies from the stab wound.
Has the sister caused her brother’s death, as required for the actus reusof murder?
She has caused her brother’s death because there can be more than one cause
She has caused her brother’s death because but for the sister rendering her brother unconscious, the gang member would not have been able to stab him
She has caused her brother’s death as she must take her brother as she finds him, with a gang member that wants to kill him
She has not caused her brother’s death because the gang member’s act is a free, deliberate and informed act
She has not caused her brother’s death because the gang member’s action was not reasonably foreseeable
She has not caused her brother’s death because the gang member’s act is a free, deliberate and informed act
Correct
Correct. To be the cause of her brother’s death she must be the factual and legal cause. This question is about legal causation and whether the sister is the operating cause of her brother’s death. The chain of causation is broken by the act of the gang member. It was held in R v Pagett that the chain of causation will be broken by a free, deliberate and informed act of a third party.
The other answers were incorrect.
The ‘reasonably foreseeable’ test is the one applied when considering whether acts of the victim will break the chain of causation.
The answers that stated the sister caused her brother’s death overlooked whether the gang member’s act broke the chain of causation:
· While the sister is the factual cause of her brother’s death, she must also be the legal cause.
· It is true that the sister’s act need not be the only cause of her brother’s death, it is enough that it is a substantial cause. However, the sister’s act must also be an operating cause.
· While the sister must take her brother as she finds him, the thin skull rule tends to be applied to issues such as a pre-existing infirmity or peculiarity.
A woman crosses a red light on her bicycle and accidentally hits a pedestrian. The pedestrian’s neck is broken and it is doubtful whether he will live. The pedestrian claims damages from the woman. The woman’s solicitor tells her she was negligent and will be liable for several million pounds in damages if the pedestrian survives. If he dies she will have to pay a few thousand pounds as the pedestrian has no dependents. The woman is not covered by insurance so will lose her house and all her savings if the pedestrian survives. She is at an age where she will not be able to buy another house or save much for her retirement. She begins to formulate a plan to smother the pedestrian. Before she can take any action, the pedestrian dies as a result of the injuries sustained in the collision and the woman is pleased he has died.
Which of the following best describes the woman’s liability for murder?
She is guilty because there is coincidence of actus reus and mens rea by virtue of this being a series of acts that form one transaction
She is guilty because at the time of the pedestrian’s death the woman had the mens rea of murder
She is not guilty because she does not have the mens rea of murder given she did not put her plan into action
She is guilty because there is coincidence of actus reus and mens rea by virtue of the continuing act theory
She is not guilty because there is no coincidence of actus reus and mens rea
She is not guilty because there is no coincidence of actus reus and mens rea
Correct. The actus reus took place at the time of the act (hitting the pedestrian with the bicycle) which ultimately caused death. The mens rea for murder is intention or kill or intention to cause grievous bodily harm. At the time of hitting the pedestrian, the woman did not have the mens rea of murder.
The other answers were incorrect. The continuing act theory cannot be used as the woman’s act of hitting the pedestrian had finished long before the woman intended the pedestrian’s death. The series of acts theory cannot be used as this is not a case where the woman initially acts with the mens rea and a later act designed to cover up the first act causes death, as in R v Thabo Meli. The woman had only done one act and she did not have the mens rea at that time. Formulating a plan to smother the pedestrian constituted the mens rea of murder, intention to kill, regardless of whether she took any steps to put her plan into action. The actus reus did not take place at the time of the pedestrian’s death.
A man lives alone and is reliant upon the care provided to him by his niece following an injury at work he suffered a year ago. The niece has cared for the man throughout this year. This includes bringing the man food and collecting his medications from the pharmacy. The niece accepts money from her uncle for these items but does not accept his offer of payment for her time in doing this. The niece becomes very busy at work and does not call on her uncle as often as she used to, which means that the man only receives food irregularly and has been without medication for a week. One night the niece notices that her uncle has become unwell and assists him into bed to rest. The man dies in the night.
Which of the following best describes the niece’s liability for the man’s death?
The niece is liable for the man’s death as she has a contractual duty to her uncle.
The niece may be liable for the man’s death as she had a special relationship to him.
The niece may be liable for the man’s death as she had voluntarily assumed a duty of care towards him.
The niece is not liable for the man’s death because there can be no liability for an omission.
The niece is liable for the man’s death as she has created a dangerous situation in leaving him without medical assistance.
The niece may be liable for the man’s death as she had voluntarily assumed a duty of care towards him.
Correct. There is generally no duty to act to prevent harm, R v Smith (William). However, the niece has voluntarily assumed a duty of care towards the man by caring for him for the last year and therefore may be liable for his death, R v Stone and Dobinson. While the other options might sound plausible, they are each incorrect. A defendant can be liable for an omission if they have a legal duty to act. The relationship between an uncle and a niece is likely to not be sufficiently proximate for a duty of care to arise by virtue of the special relationship duty. Although the niece accepts money to reimburse her for the items she collects, she has refused her uncle’s payment for her time and so there is no indication of a contract of employment. Finally, this scenario is more analogous to the voluntary assumption of a duty of care cases, than creating a dangerous situation as illustrated by the case of Miller for example.
A man has an argument with his partner and punches her in the shoulder. She falls over and hits her head on the edge of a table, sustaining head injuries from which she dies. He is charged with murder. He tells you that he had no intention to seriously injure her.
How would you advise the man on his criminal liability for murder?
He is criminally liable for murder on the basis that, by his own account, he does have the mens rea.
He is not criminally liable for murder on the basis that he has the defence of diminished responsibility.
He is not criminally liable for murder on the basis that he was acting in self-defence.
He is not criminally liable for murder on the basis that, by his own account, he does not have the mens rea.
He is not criminally liable for murder on the basis that he has the defence of loss of control.
He is not criminally liable for murder on the basis that, by his own account, he does not have the mens rea.
Correct
Correct. The mens rea for murder is an intention to kill or cause serious harm, R v Vickers. The man says he did not have either of these states of mind so he should plead not guilty to murder.
The other options were incorrect because:
· Punching his partner in the shoulder will not equate to serious harm.
· There is nothing in the facts to suggest, for example, that the man:
o could rely on the fear or anger qualifying trigger for the purposes of loss of control.
o was acting to protect himself, honestly believing that force was necessary for the purposes of self-defence.
was suffering from a recognised medical condition for the purposes of diminished responsibility.
Which of the following sets out the elements of the defence of diminished responsbility?
The defendant must suffer from an abnormality of mental functioning arising from a recognised medical condition which causes them to lose self-control and carry out the killing.
The defendant suffers from a medical condition which substantially impairs their ability to understand their conduct, form rational judgment or exercise self control and this provides an explanation for the killing.
The defendant must suffer from an abnormality of mental functioning as a result of a recognised medical condition which substantially impairs their ability to understand their conduct, form rational judgment or exercise self control and this provides an explanation for the killing.
The defendant must suffer from an abnormality of mental functioning which provides an explanation for the killing.
The defendant must suffer from an abnormality of mental functioning or a recognised medical condition which substantially impairs their ability to understand their actions and exercise self-control and this provides an explanation for the killing.
The defendant must suffer from an abnormality of mental functioning as a result of a recognised medical condition which substantially impairs their ability to understand their conduct, form rational judgment or exercise self control and this provides an explanation for the killing.
Correct.
· These are the four elements of the defence of diminished responsibility set out in s.2 Homicide Act 1957.
All of these elements must be established in order for a defendant to successfully rely on the defence of diminished responsibility.
A woman loses her temper very easily. She has been going to anger management classes in an attempt to overcome this failing, but they have not been working. One day she returns from work to find her boyfriend in a passionate embrace with her 15-year-old daughter. She picks up a heavy doorstop and hits him repeatedly on the head. He dies. She is pleading the defence of loss of control.
What effect would the woman’s short temper have on the requirement that she must have killed as a result of a loss of self-control?
She can use the defence of loss of control as a loss of temper is only considered at the third requirement, the normal person test
She cannot use the defence of loss of control as she does not have a normal degree of tolerance and self-restraint
She cannot use the defence of loss of control as she will be unable to prove beyond reasonable doubt that she did not act out of a loss of temper
She can use the defence of loss of control as a loss of temper is a loss of self-control
She can use the defence of loss of control if she killed as a result of more than a loss of temper but loss of self-control
She can use the defence of loss of control if she killed as a result of more than a loss of temper but loss of self-control
Correct. This answer reflects the position in R v Richens.
The other answers are incorrect because:
· A loss of temper is not the same as a loss of self-control.
· The third requirement of the loss of control defence is that a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or a similar way to D. This means that the woman’s short temper will not be a characteristic given to the normal person, but it does not preclude her from using the defence of loss of control.
· The prosecution has the burden of proof to prove the woman acted from a loss of temper rather than a loss of self-control, s 54(5) Coroners and Justice Act 2009.
Factors such as a loss of temper which go to the defendant’s capacity for tolerance and self-restraint are considered in the third requirement of the defence, where they may be excluded if they have not formed part of the qualifying trigger. However, loss of temper will be considered in the first requirement of the defence, that she must have killed as a result of a loss of self-control.
A man lives in an area where there has been a spate of burglaries in which violence has been used against the occupiers. He is very afraid of being the next victim, so he acquires a shotgun which he keeps by his bed. Early one morning, he hears the sound of breaking glass coming from downstairs. He picks up the shotgun and makes his way quietly downstairs. He sees that the window in the front room has been broken and a shadowy figure is moving about. He points the shotgun at the figure who, seeing him, dashes to the window and begins to climb out. Unable to restrain himself, the man shoots and hits the figure in the back, killing him instantly. The man is charged with murder.
Why can’t the man rely on the defence of loss of control?
The man has not lost control as a result of a qualifying trigger
The man didn’t lose self-control
The man fails the normal person test
The man acted in a considered desire for revenge
The man acted in self-defence
The man fails the normal person test
Correct. A person with a normal degree of tolerance and self-restraint in his circumstances would not have reacted in the same or a similar way, s 54(1)(c). As the victim is clearly intent on running away, a person with a normal degree of tolerance and self-restraint in his circumstances would not have shot him in the back.
The other answers were incorrect because:
· The facts state that the man was ‘unable to restrain himself’ which is a loss of self-control according to R v Richens.
· While acting in a considered desire for revenge is a reason why loss of control is not available (s 54(4)), there is no suggestion of this on the facts. Even if the man shot the person in the back to take revenge for breaking the window and entering his house, it was not ‘considered.’
· The man could potentially rely on both the ‘fear’ and the ‘anger’ triggers (sections 55(3) and 55(4) Coroners and Justice Act 2009). The man fears serious violence given the spate of violent burglaries. The man also reacted to a thing done (the broken window and figure entering his house) which could be argued to constitute circumstances of an extremely grave character which caused him to have a justifiable sense of being seriously wronged.
· In order to rely on self-defence, one of the requirements is that the level of force the man uses must be reasonable and in the case of ‘householders’, reasonable means not grossly disproportionate, by reference to the circumstances as the defendant believed them to be. A fatal force to the person leaving the man’s house is unlikely to be considered a reasonable level of force. See s 76 Criminal Justice and Immigration Act 2008.
The defendant suffered from alcohol dependency and was intoxicated. He had been drinking heavily, was shaking and muttering to himself. The victim was the defendant’s wife. She was tired of seeing him in this state and confronted him to tell him she was going to leave him because he has wasted his life by becoming such a mess. She told the defendant that he was useless and ruined both of their lives due to his addiction. The defendant flew into a rage and repeatedly hit his wife to the head with a hammer, she died as a result of her injuries.
How will the defendant’s alcohol dependency and the fact that he is intoxicated affect a defence of diminished responsibility?
The court should be entitled to take into account the intoxication as a recognised medical condition.
The court cannot take into account the alcohol dependency or intoxication as he is voluntarily intoxicated and this should not provide him with a defence for murder.
The court should only be entitled to take into account the alcohol dependency and D’s intoxication when deciding if he loss self-control.
The court cannot take into account the alcohol dependency or intoxication as these are not recognised medical conditions.
The court should be entitled to take into account the alcohol dependency and D’s intoxication as a recognised medical condition.
The court should be entitled to take into account the alcohol dependency and D’s intoxication as a recognised medical condition.
Correct. Case law has confirmed that alcohol dependency is a recognised medical condition and intoxication due to alcohol dependency is not be viewed in the same way as voluntary intoxication by a person who is not dependent on alcohol. In this case, the alcohol dependency and his state of intoxication would be viewed as a recognised medical condition.
A woman owns a coffee shop in her local town. A new coffee shop is due to open at the other end of the high street which is likely to affect the woman’s business. Late one night, the day before the new café is due to open, the woman decided to paint offensive language on the windows to ruin the opening day. She knows the paint will wash off the windows easily but just wanted to cause a nuisance on the first day and hopefully deter some customers.
Which of the following correctly sets out whether the woman may be liable for criminal damage?
The woman will not be liable as the paint has not destroyed the shop.
The woman will be liable as the paint has caused damage that will take time and effort to clean.
The woman will not be liable as the paint can easily be cleaned.
The woman will be liable as the paint has destroyed the windows.
The woman will not be liable as the paint has only caused temporary damage.
The woman will be liable as the paint has caused damage that will take time and effort to clean.
Correct. Damage includes anything that temporarily impairs the usefulness of the item, here the windows have been damaged as they are temproarily rendered useless and can only be restored to their previous state by spending money or time and effort to clean them.
A farmer decided to go out shooting vermin on his farm. Prior to setting off he decided to have a practice shot and aimed the gun at the window of a barn that he used to keep machinery in. He fired the shot and the window broke.
Can the farmer be liable for criminal damage?
Yes, as he has damaged the window of the barn.
No, as he did not caused damage to property belonging to another.
No, as he lacks the mens rea for criminal damage, his intention to practice his shooting.
Yes, as he has destroyed the window of the barn.
No, as he has a lawful excuse in that he consented to the damage being caused.
No, as he did not caused damage to property belonging to another.
Correct. This would be basic criminal damage and in order to be guilty, the property must belong to someone other than the person who has caused the damage. Here, the barn belongs to the farmer who has caused the damage, so he cannot be liable.
A woman borrows a pair of shoes from her friend for a night out planning to return them the next day. The following day the woman walks round to her friend’s house with the shoes but as she turns on to the street she sees the friend kissing her boyfriend. Her friend and boyfriend didn’t see her and she turned around and ran home. She decided to keep the shoes as she never wanted to see her friend again.
Which of the following best explains whether the woman might be guilty of theft?
The woman is unlikely to be guilty of theft as she will be able to show that she believed that her friend would consent to her keeping the shoes knowing that the friend has stolen her boyfriend.
The woman might be guilty of theft as she always had the intention to permanently deprive her friend of the shoes.
The woman might be guilty of theft as she is clearly dishonest.
The woman is unlikely to be guilty of theft as she did not intend to keep the shoes when she appropriated them.
The woman might be guilty of theft as she later appropriates the property when she decides to return home and keep the shoes.
The woman might be guilty of theft as she later appropriates the property when she decides to return home and keep the shoes.
Correct. Whilst the initial appropriation is innocent, there is a later appropriation (s.3(1) Theft Act) when she decides to keep the shoes and at this point if she is dishonest then all of the elements of theft would be present.
At what point in time must force be used to transform theft into robbery?
It must always be used before the theft occurs
At any time
After the property has been taken into the defendant’s possession
Immediately before or at the time of the theft
While the defendant is escaping having committed theft
Immediately before or at the time of the theft
Correct. This is as stated in s 8(1) Theft Act 1968.
Which of the elements below is common to burglary under s. 9(1)(a) and 9(1)(b) Theft Act 1968?
Intention to steal at the time of entry
Intention to cause grievous bodily harm at the time of entry
Trespassing
Causing actual bodily harm
Causing criminal damage
Trespassing
Correct. The actus reus for both offences is stated to include trespass. For s9(1)(a), a defendant must enter the building or part of it as a trespasser and for s9(1)(b), it must be shown that at the time of the theft, GBH or attempt to commit either, the defendant was in the building or part of it as a trespasser.
With regard to an offence of fraud by failure to disclose, which one of the following statements is the most accurate?
For an offence of fraud by failure to disclose, the jury will decide whether a legal duty to disclose arises
The defendant must be a ‘person’ who is under a legal duty to disclose information to another ‘person’, the definition of which does not extend to a ‘legal’ person such as a corporation
A defendant may be liable for an offence of fraud by failure to disclose even if he has fulfilled a civil law duty to disclose information
A defendant must intend that the loss in terms of property or money which he causes is suffered by the person to whom the duty is owed
A corporation may be liable for an offence of fraud by failure to disclose when an obligation is imposed by law on the corporation
A corporation may be liable for an offence of fraud by failure to disclose when an obligation is imposed by law on the corporation
Correct
Correct. Although the term ‘person’ is not defined, there is nothing in the Act to prevent a corporation being liable for a failure to disclose where there is a legal duty imposed on it to disclose and, by analogy, to be the ‘person’ to whom the duty is owed. Review your materials on the statutory provisions
What is the difference between s.18 and s.20 OAPA?
A section 20 doesn’t require causation
Section 20 requires a wound
The mens rea
Section 18 must be committed by causing serious harm
A section 18 is a strict liability offence
The mens rea
Correct. The offences have the same actus reus but the mens rea for s.18 is an intention to cause serious harm whilst the mens rea for s.20 is an intention or recklessness to cause some harm.
Which of the following statements on the defence of consent is the most accurate?
The victim’s consent to engage in this activity will provide a defence for the defendant unless the defendant intended to inflict harm that was ABH or above
The defence will operate where harm that amounts to less than ABH is caused, the victim consented to the harm and the defendant believed that the victim consented to it
The victim can never give a valid consent to an activity where there is a risk of harm that is ABH or above
If the defendant intends to cause ABH or above with the victim’s consent, but in fact only causes a battery, the defendant will still be liable for that offence.
This activity is likely to fall into the exceptional category of sport rather than horseplay
The defence will operate where harm that amounts to less than ABH is caused, the victim consented to the harm and the defendant believed that the victim consented to it
Correct. The general rule is that consent will operate as a defence to assault and battery only, AG’s Reference (No6 of 1980). The case of R v Meachan extended the rule to provide that the defence could still operate even where ABH or worse was caused provided the defendant only intended to commit a battery with the consent of the victim and did not see the risk of causing ABH
During a party, the hostess goes into her kitchen where she finds her boyfriend arguing with a man she has never seen before. The man grabs her boyfriend by the shoulders. Thinking the man was a stranger who had not been invited, the woman picks up a frying pan and brings it down on the man’s head, fracturing his skull. In fact, the man is her boyfriend’s cousin who had been invited to the party. The woman believed she was acting to protect her boyfriend.
Which test will be used to determine her whether the woman acted in self-defence?
Was the force grossly disproportionate, and if not, was the force reasonable?
Was the force reasonable and proportionate?
Was the force grossly disproportionate?
Was the force reasonable?
Was the force proportionate?
Was the force grossly disproportionate, and if not, was the force reasonable?
Correct. The answer best reflects the wording of s 76 Criminal Justice and Immigration Act 2008. The woman must honestly believe that it was necessary to use force to protect another (the trigger) – a subjective question. The force used must be reasonable (the response) – an objective question but judged on the facts as the defendant believed them to be.
The woman acted to protect her boyfriend who, she believed, was being attacked by a stranger. When assessing her response, this case should be identified as a householder case (s 76(8A)), as the act took place in a dwelling house, the woman was not a trespasser and she believed the man was a trespasser. First it must be asked if the force was grossly disproportionate, s 76(5A). If it was, the woman cannot use the defence. If it was not, then it must be asked if the force was reasonable, R v Ray (Steven).
Which of the following statements is the most accurate in relation to the offence of fraud by false representation?
The defendant must intend to make a gain or cause loss in property or money terms and such a loss or gain must be proved to have occurred.
The defendant must intend to make a gain or cause loss in property or money terms but it is not necessary to show that any actual loss or gain occurs.
The defendant must intend or be reckless as to making a gain for himself or another or causing loss to another in property or money terms.
The defendant must intend to make a gain or cause loss in property or money terms but it is not necessary to show that any actual loss or gain occurs.
Correct. The actus reus of fraud by false representation does not include a requirement of actual gain or loss. This is a conduct crime, committed as soon as the false representation is made.
Which one of the following statements most accurately represents the mens rea of aggravated criminal damage?
Intention or recklessness as to destroying or damaging property or intention or recklessness as to endangering the life of another
Intention or recklessness as to destroying or damaging property and being reckless as to endangering life
Intention or recklessness as to destroying or damaging property and intention or recklessness as to thereby endangering the life of another
Intention or recklessness as to destroying or damaging property and intention or recklessness as to thereby endangering the life of another
At what point in time must force be used to transform theft into robbery?
At any time
After the property has been taken into the defendant’s possession
It must always be used before the theft occurs
While the defendant is escaping having committed theft
Immediately before or at the time of the theft
Immediately before or at the time of the theft
Correct. This is as stated in s 8(1) Theft Act 1968.
A boy is playing with his friends in the sea next to a pier. The boy knows that one of his friends cannot swim but encourages his friend to come into the water out of his depth with the aid of a float. The boy takes away the float for a laugh and the friend loses his footing and goes underwater. Thinking the water below is clear from people, a girl then jumps from the pier and lands on the friend which causes him to hit his head on the pier. The friend dies from his injuries.
Which of the following best explains whether the boy is the legal cause of his friend’s death?
Select one alternative:
The boy is the legal cause as his acts were the only cause of his friend’s death
The boy is not the legal cause as the chain of causation is broken by the friend going out of his depth
The boy is not the legal cause as the girl caused the friend to hit his head
The boy is not the legal cause as the chain of causation is broken by the girl jumping from the pier
The boy is the legal cause as his acts were a substantial and operating cause of his friend’s death
The boy is the legal cause as his acts were a substantial and operating cause of his friend’s death
This question tested your application of the test for legal causation including acts which could break the chain of causation.
Correct. The boy is the ‘operating and substantial’ cause of the friend’s death, R v Pagett. He is the substantial cause when he encourages the his friend into deep water then takes away the float, this is more than a minimal cause of his friends death. He is the operating cause as the actions of the friend and the girl do not break the chain of causation. The other options were not the best answer. The boy does not need to be the only cause of his friend’s death to be the legal cause. The case of R v Benge confirms that the boy can still be the legal cause even when other causes are present, as long as it can be shown that the boy was the substantial cause of the harm, meaning more than de minimis, more than minimal, R v Hughes. While a voluntary and informed decision of the friend to go out of his depth could break the chain of causation (R v Kennedy), he goes knowing he has a float. When the boy takes the float away from his friend, it is foreseeable that the friend would go underwater without it, so the chain of causation will not be broken by the friend’s actions. Acts of a third party (here the girl) may only be a break in the chain of causation if their actions were ‘free, deliberate and informed’, R v Pagett. The girl thought the water was free from people when she jumped, so her landing on the friend’s head was not a deliberate or informed one.
Incorrect. The boy does not need to be the only cause of his friend’s death to be the legal cause. The case of R v Benge confirms that the boy can still be the legal cause even when other causes are present, as long as it can be shown that the boy was the substantial cause of the harm, meaning more than de minimis, more than minimal, R v Hughes. Review whether the boy is the ‘operating and substantial’ cause of the friend’s death, R v Pagett.
Incorrect. While a voluntary and informed decision of the friend to go out of his depth could break the chain of causation (R v Kennedy), he goes knowing he has a float. When the boy takes the float away from his friend, it is foreseeable that the friend would go underwater without it, so the chain of causation will not be broken by the friend’s actions. Review whether the boy is the ‘operating and substantial’ cause of the friend’s death, R v Pagett.
Incorrect. The boy does not need to be the only cause of his friend’s death to be the legal cause. The case of R v Benge confirms that the boy can still be the legal cause even when other causes are present, as long as it can be shown that the boy was the substantial cause of the harm, meaning more than de minimis, more than minimal, R v Hughes. Review whether the boy is the ‘operating and substantial’ cause of the friend’s death, R v Pagett.
Incorrect. Acts of a third party (here the girl) may only be a break in the chain of causation if their actions were ‘free, deliberate and informed’, R v Pagett. The girl thought the water was free from people when she jumped, so her landing on the friend’s head was not a deliberate or informed one. Review whether the boy is the ‘operating and substantial’ cause of the friend’s death, R v Pagett.
A boy with a keen interest in science creates controlled explosions in a field close to his home, in order to test what he has learned. He knows people often walk their dogs in the field but picks a time that no one else seems to be around to do the controlled explosions. He sets up two explosions, using an amount of explosive material that he knows would cause serious injury and puts these on a timer to ignite one after the other. The boy triggers the ignition and an explosion occurs. Although the boy only hears one explosion, he walks home, as does not want to go near the explosive material in case the second explosion occurs. Later, the second explosion kills a dog walker who happens to be in the field at the moment of the explosion. The boy has been charged with the murder of the dog walker.
Which of the following is the best argument the prosecution could make that the boy had the mens rea for murder?
Select one alternative:
The boy is liable murder as his actions were reckless
The boy is liable for murder as he appreciated that death or serious injury was a virtual certainty as a result of his actions
The boy is liable for murder as death or serious injury was a virtual certainty as a result of his actions
The boy is liable murder as it was his aim or purpose to cause death or serious injury by virtue of creating an explosion
The boy is liable for murder as death or serious injury was a virtual certainty as a result of his actions and the boy appreciated this
The boy is liable for murder as death or serious injury was a virtual certainty as a result of his actions and the boy appreciated this
This question tested your application of the mens rea of murder, in particular the test of oblique intention.
Correct. Applying R v Woollin, the prosecution could try to persuade the jury to find the boy had oblique intent for the murder of the dog walker if they are sure: • Death or serious injury was a virtual certainty as a result of the boy placing an explosion in a field that people often walk their dogs in (objective element); and • The boy appreciated this as knew that people walk there, the amount of explosive material could cause serious injury and that the second explosion did not occur when he left (subjective element). Two of the other options were not the best answer as did not capture both the objective and subjective elements of the test for oblique intention in R v Woollin. For a murder offence, the defendant must intend to kill or to cause grievous bodily harm (R v Vickers). On the facts, the boy’s direct intention, his aim or purpose is to test what he has learned in science (R v Moloney). The boy’s direct intent is not to kill or cause serious harm to the dog walker. Recklessness is not part of the mens rea for murder.
Incorrect. For a murder offence, the defendant must intend to kill or to cause grievous bodily harm (R v Vickers). Recklessness is not part of the mens rea for murder. The best argument the prosecution can make is that the boy has fufilled the mens rea of murder by oblique intention using the test from R v Woollin.
Incorrect. While the best argument the prosecution can make is that the boy has fufilled the mens rea of murder by oblique intention, this answer only captures the subjective element of the test in R v Woollin. Review the R v Woollin test for oblique intention, in particular the objective element.
Incorrect. While the best argument the prosecution can make is that the boy has fulfilled the mens rea of murder by oblique intention, this answer only captures the objective element of the test in R v Woollin. Review the R v Woollin test for oblique intention, in particular the subjective element.
Incorrect. For a murder offence, the defendant must intend to kill or to cause grievous bodily harm (R v Vickers). On the facts, the boy’s direct intention, his aim or purpose is to test what he has learned in science (R v Moloney). The boy’s direct intent is not to kill or cause serious harm to the dog walker. The best argument the prosecution can make is that the boy has fufilled the mens rea of murder by oblique intention using the test from R v Woollin.
A woman lives opposite a park where drug deals take place regularly. She is vehemently against such activities and, to put a stop to them she plants a small explosive device with the aim of damaging the playground equipment which the drug dealers use to hide behind. The device explodes as the men arrive, damaging a nearby parked car but not the playground equipment. Two of the men are injured as well.
Which of the following best explains the relevance of transferred malice to the woman’s criminal liability?
Select one alternative:
We cannot use the doctrine of transferred malice to transfer the woman’s intention in relation to the playground equipment to the car or the men’s injuries
We can use the doctrine of transferred malice to transfer the woman’s intention in relation to the playground equipment to the car and to the men’s injuries
The doctrine of transferred malice has no relevance to the woman’s criminal liability
We can use the doctrine of transferred malice to transfer the woman’s intention in relation to the playground equipment to the car but we cannot transfer her malice to the men’s injuries
We cannot use the doctrine of transferred malice to transfer the woman’s intention in relation to the playground equipment to the car but we can transfer her malice to the men’s injuries
We can use the doctrine of transferred malice to transfer the woman’s intention in relation to the playground equipment to the car but we cannot transfer her malice to the men’s injuries
This question tested your application of the doctrine of transferred malice and its limits.
Correct. The doctrine of transferred malice allows D’s mens rea to be transferred from the intended harm (here the criminal damage to the playground equipment) to the actual harm (here criminal damage to the parked car), R v Latimer. However, there is a limit to transferred malice in that you cannot transfer the mens rea for one crime (criminal damage to the playground equipment) to the actus reus for another crime (here the men’s injuries- a non-fatal offence against the person), R v Pembliton. The other options are incorrect. Where the actus reus and mens rea of crime intended and the crime committed do not match, it may still be possible to establish mens rea for the crime committed independently of the crime originally intended. In this scenario, for the woman to be liable for the injuries caused to the men, the mens rea for the relevant non-fatal offence against the person would be needed.
A woman tells her husband she is having an affair. The husband loses his temper and screams. He grabs the bottle opener next to him and stabs the woman in her arm repeatedly. The woman loses a lot of blood and the husband calls an ambulance. Upon arrival at the hospital, the woman does not receive medical treatment immediately due to overcrowding in the waiting area. The woman subsequently dies from her injuries.
Which of the following best explains whether the husband is criminally liable for murder?
Select one alternative:
The husband is criminally liable for murder as he had oblique intention to kill the woman
The husband is criminally liable for murder as he intended to cause the woman grievous bodily harm
The husband is not criminally liable for murder but will be acquitted due to the loss of control defence
The husband is not criminally liable for murder as the hospital’s delay broke the chain of causation
The husband is not criminally liable for murder but voluntary manslaughter due to the loss of control defence
The husband is criminally liable for murder as he intended to cause the woman grievous bodily harm
This question tested your application of the elements of murder, in particular when medical negligence breaks the chain of causation and direct/ oblique intention.
Correct. The mens rea for murder is intention to kill or cause grievous bodily harm (GBH), R v Vickers. Intention is to be given its ordinary meaning as per R v Moloney and this, Smith, Hogan and Ormerod has suggested, means aim, purpose or objective. GBH is grievous bodily harm which means serious harm, R v Saunders. It is not clear if it was the husband’s aim to kill the woman but at the very least it is his aim to cause her serious harm by stabbing her in the arm repeatedly with a bottle opener. While the other answer options might sound plausible, they are each incorrect. Loss of control is a special defence to murder and for the defence to apply the elements of murder must be present. If successful, the partial defence of loss of control will reduce the charge to voluntary manslaughter, the husband would not be acquitted. Loss of control is not available as a partial defence if the thing said/ done constituted sexual infidelity, Coroners and Justice Act 2009, s 55(6)(c) or if the defendant merely loses their temper, R v Richens. On the facts the husband loses his temper and seems to act solely due to the woman telling him she is having an affair. Where a direct intent to cause death or GBH can be established, there is no need to consider oblique intent. This is not a case where oblique intention is appropriate. Oblique intent is where the consequence is not the defendant’s purpose but rather a side effect that D accepts as an inevitable or certain accompaniment to D’s direct intention. Courts are reluctant to find that medical negligence breaks the chain of causation. The test is whether the medical negligence is so potent and independent that it renders the defendant’s act as being insignificant, R v Cheshire. At the time of the woman’s death, the stab wound was still an operating and substantial cause rather than merely part of the history so it will not break the chain of causation, R v Smith.
A woman discovers that her adult son is dating someone from a different faith. She has a very heated argument with her son about his choice of girlfriend, during which she grabs hold of a heavy ornament and hits him repeatedly over his head with it, even after he died. The woman is charged with murder.
Which of the following best explains whether the woman will be able to successfully rely on the defence of loss of control?
Select one alternative:
She cannot rely on the defence of loss of control because she has not lost self-control
She cannot rely on the defence of loss of control because the appropriate defence on these facts is diminished responsibility
She cannot rely on the defence of loss of control because what her son has done constitutes sexual infidelity
She cannot rely on the defence of loss of control because what her son has said and done cannot cause her to have a justifiable sense of being seriously wronged
She can rely on the defence of loss of control
She cannot rely on the defence of loss of control because what her son has said and done cannot cause her to have a justifiable sense of being seriously wronged
This question tested your application of loss of control, in particular your understanding of the anger trigger.
Correct. There is little authority on what ‘a justifiable sense of being seriously wronged’ means, but we know from the case of R v Clinton that it is an objective test. The influential article by the academics Baker and Zhou suggests that ‘the defendant’s sense of being seriously wronged must be one that accords with contemporary society’s norms and values’. Whatever the woman may personally think, killing her son in these circumstances does not accord with society’s norms and values. The other options are incorrect. The woman has lost her self-control. There need not be a loss of control to the extent that the woman does not know what she is doing, but she must be unable to restrain herself, R v Richens. On the facts, it seems that she is unable to restrain herself, as hits her son repeatedly over the head with a heavy ornament even after he died. The defence of loss of control cannot be relied upon if sexual infidelity is the sole qualifying trigger (things said or done), section 55(6) Coroners and Justice Act 2009. However, the son’s relationship with a woman of another faith does not constitute sexual infidelity. See the case of R v Clinton for guidance on what ‘sexual infidelity’ means. Section 2(1) Homicide Act 1957 (as amended) states that the partial defence of diminished responsibility will apply if, at the time of the killing, the defendant was suffering from an abnormality of mental functioning caused by a recognised medical condition, which substantially impaired their ability to do one of the things set out in s 2(1A) and which provides an explanation for the killing. The facts do not reveal a recognised medical condition here.
A woman has been married to a man for many years. They regularly have fierce arguments. After one particularly heated argument, she smothers him with a pillow while he is sleeping. She is charged with murder and her legal team instruct a psychiatrist to speak to her and prepare a report on her mental state. The report indicates that she is not suffering from any recognised medical condition.
Which of the following best describes whether the woman will be able to rely on the defence of diminished responsibility?
Select one alternative:
She can rely on the defence of diminished responsibility
She cannot rely on the defence of diminished responsibility because the prosecution will be able to disprove it beyond reasonable doubt
She cannot rely on the defence of diminished responsibility because she will not be able to prove it beyond reasonable doubt
She cannot rely on the defence of diminished responsibility because the prosecution will be able to disprove it on a balance of probabilities
She cannot rely on the defence of diminished responsibility because she will not be able to prove it on a balance of probabilities
She cannot rely on the defence of diminished responsibility because she will not be able to prove it on a balance of probabilities
This question tested your application of the special defence of diminished responsibility, in particular the burden and standard of proof.
Correct. Section 2(2) Homicide Act 1957 places the burden of proving diminished responsibility on the defendant. The standard of proof is on the balance of probabilities. It must be shown that, at the time of the killing, it is more likely than not that she was suffering from an abnormality of mental functioning caused by a recognised medical condition. The other options are incorrect.
A student is receiving feedback on his coursework which he has failed. He is angry with his tutor because he feels that his work has been marked unfairly. As he leaves the room at the end of the feedback session, he throws his laptop at the tutor. It misses the tutor but hits a glass on the tutor’s desk which falls to the ground and shatters.
What is the most appropriate advice to the student about his potential liability for simple criminal damage?
Select one alternative:
He may be liable for simple criminal damage if he saw a risk of causing damage to another’s property
He will not be liable for basic criminal damage offence as the laptop belongs to the student
He may be liable for simple criminal damage using the doctrine of transferred malice
He may be liable for simple criminal damage as he should have seen the risk of causing damage to another’s property
He will not be liable for simple criminal damage as he intended to hit his tutor, not property
He may be liable for simple criminal damage if he saw a risk of causing damage to another’s property
This question tested your application of simple criminal damage and the doctrine of transferred malice.
Correct. As stated in s 1(1) Criminal Damage Act 1971 the defendant must intend or be reckless as to destroying or damaging property belonging to another. According to R v G, the student will be reckless if he sees a risk of causing damage to someone else’s property and, in the circumstances known to him, it is an unreasonable risk to take. The other options are incorrect. According to R v G, the defendant must see the risk of causing damage to property belonging to another. This is a subjective question and it is not sufficient to allege that he should have recognised the risk of damage. The doctrine of transferred malice would not help establish criminal liability against the student for simple criminal damage. The doctrine of transferred malice allows D’s mens rea to be transferred from the intended harm to the actual harm, R v Latimer. However, there is a limit to transferred malice in that you cannot transfer the mens rea for one crime (hitting the tutor- a non fatal offence against the person) to the actus reus for another crime (here the simple criminal damage to the glass), R v Pembliton. The student can be criminally liable for simple criminal damage and a non-fatal offence against the person here. It is possible that mens rea based on recklessness can be established in relation to damaging the glass, independently of the student’s intention with regard to his tutor. While it is correct that property must belong to another for the purposes of simple criminal damage, the property we are concerned with here is the glass (which does belong to another) rather than the laptop.
A keen gardener looks out of his window and sees the neighbour’s dog digging up his new rose bushes. He yells at the dog, but the dog continues to dig. The gardener then gets his shotgun, for which he has a licence, runs into the garden and fires a shot, aiming above the dog. The shot hits the greenhouse at the bottom of the garden. It narrowly misses the window cleaner who is in the greenhouse. The window cleaner is surrounded by broken glass, but is unhurt.
Which of the following best explains whether the gardener will be criminally liable for aggravated criminal damage?
Select one alternative:
The gardener will not be criminally liable for aggravated criminal damage as he has a lawful excuse of acting to protect property
The gardener will be criminally liable for aggravated criminal damage as he was reckless as to endangering life by the bullet
The gardener will be criminally liable for aggravated criminal damage as he damaged the greenhouse and endangered the life of the window cleaner
The gardener will not be criminally liable for aggravated criminal damage as the greenhouse belongs to him so one of the requirements of the actus reus is not satisfied
The gardener will not be criminally liable for aggravated criminal damage unless he was reckless as to both damaging the greenhouse and endangering life by the broken glass
The gardener will not be criminally liable for aggravated criminal damage unless he was reckless as to both damaging the greenhouse and endangering life by the broken glass
This question tested your application of aggravated criminal damage, including the cases of R v Steer and R v Sangha.
Correct. To be criminally liable for aggravated criminal damage the gardener would have to see the risk of damaging the greenhouse and see the risk that life would be endangered by the damage to the greenhouse (the broken glass). It is not clear whether he saw the risk of either. Did he see a risk of someone’s life being endangered by damage to the greenhouse? Did he see the risk that anyone was in it? Even if he did, he would need to have seen a risk to their life being endangered from the broken glass, which is unlikely. If he did, the risk would be an unreasonable one to take. The other options are incorrect. The lawful excuse defences (here s 5(2)(b)- believing property is in immediate need of protection) do not apply to aggravated criminal damage, see s 5(1) Criminal Damage Act 1971. The actus reus of aggravated criminal damage requires damage to property belonging to yourself or another so it is immaterial who the greenhouse belongs to. While the gardener has damaged the greenhouse and endangered the life of the window cleaner, this is not enough to make the gardener criminally liable for aggravated criminal damage. This option deals with matters of actus reus only. It is worth noting that as a matter of actus reus, it is irrelevant whether the life of another was actually endangered, R v Sangha. Aggravated criminal damage requires the defendant to intend or be reckless as to endangering life by the damage (broken glass) not the act which causes damage (the bullet), R v Steer. Even if the gardener did foresee the risk of endangering life by the bullet this is not sufficient to satisfy the mens rea of s 1(2)(b) Criminal Damage Act 1971.
A man is walking home and something catches his eye. He looks up and sees what he thinks is a fight taking place in a first-floor room. He feels compelled to act. The man smashes the front door to gain entry. Once upstairs it transpires that it is actually people dancing.
Which of the following best explains whether the man could argue he had a lawful excuse for the simple criminal damage?
Select one alternative:
He cannot argue lawful excuse because he made a mistake
He cannot argue lawful excuse as the person entitled to consent did not give him permission to damage the door
He could argue a reasonable person would believe that the person entitled to consent to the damage to the door would have consented in these circumstances
He could argue he honestly believed that the person entitled to consent to the damage to the door would have consented in these circumstances
He could argue a reasonable person would consent to the damage to the door in order for him to break up a fight
He could argue he honestly believed that the person entitled to consent to the damage to the door would have consented in these circumstances
This question tested your ability to apply the lawful excuse defences for the purposes of simple criminal damage, in particular s 5(2)(a).
Correct. Under s 5(2)(a) Criminal Damage Act 1971, if the defendant honestly believes that he has the owner’s consent to cause the damage, the defence will apply. It will also apply if the defendant honestly believes that the owner would have consented to the damage if they knew of the circumstances. This belief does not have to be reasonable and a mistake (even a drunken one) may be taken into account when assessing the belief, Jaggard v Dickinson. The other options are incorrect. The lawful excuse defences in s 5(2) Criminal Damage Act 1971 are subjective (from the defendant’s honest perspective) not an objective (from the reasonable person’s justified perspective), see s 5(3).
A boy thinks one of the girls in his class is easy to manipulate. The boy lies to the girl and says that his mother is unwell and that he wants to be able to call his mother between classes to check on her. The boy asks for the girl’s mobile phone. The girl gives him the mobile phone as a gift, as she is going to get a new one soon. While the girl knows the boy’s mother is not unwell, she knows his family are struggling financially and thought he might be able to get some money for the mobile phone.
Which of the following best explains whether the boy has appropriated the mobile phone for the purposes of theft?
Select one alternative:
He has appropriated the mobile phone because he thinks she is easy to manipulate
He has not appropriated the mobile phone because the girl intended it to be a gift
He has appropriated the mobile phone despite her consent, and despite her intention to give the mobile phone as a gift
He has appropriated the mobile phone because he has lied to her in his reasons for needing it
He has not appropriated the mobile phone because the girl consented- she knew he was lying when she gave him the mobile phone
He has appropriated the mobile phone despite her consent, and despite her intention to give the mobile phone as a gift
This question tested your ability to apply the law on appropriation for the purposes of theft, in particular how gifts and the consent of the owner impact liability.
Correct. It was held in R v Gomez that you can appropriate with the owner’s consent as appropriation is an objective description of the act done independent of the mental state of either the owner or the defendant. Following on from this reasoning, the House of Lords said in R v Hinks that it is possible to appropriate a gift. The other options are incorrect. When considering whether there has been an appropriation for the purposes of theft, it is irrelevant that: • he has lied to her in his reasons for needing the mobile phone; • the girl intended the mobile phone to be a gift to him; • the girl consented- she knew he was lying when she gave him the mobile phone; • he thinks she is easy to manipulate.
Incorrect. While he has appropriated, the fact that he thinks she is easy to manipulate is not relevant in making his act an appropriation. It was held in R v Gomez that appropriation is an objective description of the act done independent of the mental state of either the owner or the defendant. His beliefs that the girl is easy to manipulate will be relevant to the issue of whether he is dishonest. Review your theft materials on appropriation, in particular R v Gomez and R v Hinks.
Incorrect. It is possible to appropriate a gift, R v Hinks. Review your theft materials on appropriation, in particular R v Gomez and R v Hinks.
Incorrect. While there has been an appropriation, the fact that he lied to her is not relevant in making his act an appropriation (although it may be relevant when considering whether he is dishonest). It was held in R v Gomez that appropriation is an objective description of the act done, independent of the mental state of either the owner or the defendant. Review your theft materials on appropriation, in particular R v Gomez and R v Hinks.
Incorrect. It was held in R v Gomez that appropriation is an objective description of the act done, independent of the mental state of either the owner or the defendant. The boy can appropriate with the girl’s consent. Review your theft materials on appropriation, in particular R v Gomez and R v Hinks.
man finds a wallet containing £500 whilst rummaging through a pile of clothes left on the pavement outside a large block of flats for collection by the Council’s recycling team. There is nothing in the wallet aside from the money, such as identification or contact details, so he keeps the £500. He does not believe that he can find the owner given the number of people that live in the large block of flats.
Which of the following best explains whether the man is dishonest for the purposes of theft?
Select one alternative:
The man may be dishonest as he might be found dishonest by the standards of ordinary decent people
The man may be dishonest as he did not take any reasonable steps to find the person to whom the wallet and money belong
The man is not dishonest as he believes that the person to whom the wallet and money belong cannot be discovered by taking reasonable steps
The man is not dishonest as ordinary decent people would not find him to be dishonest
The man may be dishonest as his belief that the owner cannot be discovered by taking reasonable steps was unreasonable
The man is not dishonest as he believes that the person to whom the wallet and money belong cannot be discovered by taking reasonable steps
This question tested your ability to apply the law on dishonesty for the purposes of theft, in particular how s 2(1) Theft Act 1968 and the Ivey v Genting Casinos test interact.
Correct. The exception to dishonesty as set out in s 2(1)(c) Theft Act 1968 will apply here. The man does not believe the owner can be found by taking reasonable steps. His belief does not need to be reasonable, R v Robinson. The other options, some of which are plausible, are not the best answer or are incorrect. Section 2(1)(c) applies where the defendant believes that the owner cannot be discovered on taking reasonable steps. It is not necessary to show that the defendant has taken any steps to find the owner in fact. The test in s 2(1)(c) is a subjective one, based on the defendant’s beliefs. If any of the exceptions set out in s 2(1) apply to the defendant, he is not dishonest and therefore the test in Ivey v Genting Casinos will not be applied.
Incorrect. If any of the states of mind in s 2(1) apply, the defendant will not be dishonest. There is no need to apply the common law test of dishonesty found in Ivey v Genting Casinos to the man. Review your materials on dishonesty, in particular s 2(1)(c) and R v Robinson.
Incorrect. Section 2(1)(c) Theft Act 1968 does not require the man to take any reasonable steps; the emphasis is on his belief. Review your materials on dishonesty, in particular s 2(1)(c) and R v Robinson.
Incorrect. If any of the states of mind in s 2(1) apply, the defendant will not be dishonest. There is no need to apply the common law test of dishonesty found in Ivey v Genting Casinos to the man. Review your materials on dishonesty, in particular s 2(1)(c) and R v Robinson.
Incorrect. For s 2(1)(c) Theft Act 1968 to apply, his belief does not need to be reasonable so long as it is genuine, R v Robinson. Review your materials on dishonesty, in particular s 2(1)(c) and R v Robinson.
A man’s wife died ten months ago. She received a pension which she authorised the man to collect for her. The man has not notified the local authority of his wife’s death and has continued to collect her pension.
Which of the following best explains whether the excess payments belong to another for the purposes of theft?
Select one alternative:
The money belongs to another because the man is under a legal obligation to restore the excess payments which belong to the local authority and the man
The money belongs to another because the man is under a legal obligation to restore the excess payments which belong to the local authority alone
The money does not belong to another because it belongs to the man who has possession and control of it
The money belongs to another because the man is under an automatic obligation to restore property acquired by mistake
The money belongs to another as the man is under an obligation to deal with the money in a particular way
The money belongs to another because the man is under a legal obligation to restore the excess payments which belong to the local authority and the man
This question tested your ability to apply the law on belonging to another for the purposes of theft, in particular section 5(4) Theft Act 1968.
Correct. Section 5(4) Theft Act 1968 states that where property is given to another by a mistake and there is a legal obligation to restore it, that property belongs to the other for the purposes of the Theft Act. The other options, some of which are plausible, are not the best answer or are incorrect. Where property has been acquired by a mistake, legal ownership passes to the recipient (the man). However, s 5(4) Theft Act 1968 provides that for the purposes of theft, the property will be regarded as still belonging to the original owner, the local authority (as well as the recipient) if the recipient is under a legal duty to restore the property in whole or part. Section 5(4) does not create an automatic legal obligation to restore. The section will operate only if such an obligation can be established in law such as Attorney-General’s Reference (No 1 of 1983). Section 5(3) would only operate if the man was under a legal obligation to use the money in a particular way for the local authority.
Incorrect. Legal ownership in the money passed to the man when it was given to him. The money belongs to the local authority and the man. Review your materials on belonging to another, in particular section 5(4) Theft Act 1968.
Incorrect. While this answer reflects the definition of belonging to another in section 5(1) Theft Act 1968, section 5(4) is more appropriate as the money has been given to the man by mistake.
Incorrect. Section 5(4) does not put the man under an automatic obligation to restore. It operates only if a defendant is under a legal obligation to restore. Review your materials on belonging to another, in particular section 5(4) Theft Act 1968.
Incorrect. Section 5(3) would only operate if the man was under a legal obligation to use the money in a particular way for the local authority. Review your materials on belonging to another, in particular section 5(4) Theft Act 1968.
A shopper in a supermarket sees a wallet on the floor as he leaves the store. He picks it up and puts it in his pocket. A shop worker sees this and confronts him. The shopper shouts back, ‘I know where you live and if you say anything, you will regret it!’ The shop worker replies, ‘yeah, yeah, whatever!’
Which of the following best explains the shopper’s liability for the offence of robbery?
Select one alternative:
The shopper has satisfied the requirements of the offence as he has stolen and put a person in fear of force in order to steal
The shopper has not satisfied the requirements of the offence as he has not put the person he has stolen from in fear of force
The shopper has not satisfied the requirements of the offence as he has not put a person in fear of force immediately before or at the time of the theft
The shopper has not satisfied the requirements of the offence as he has not put a person in fear of being then and there being subjected to force
The shopper has satisfied the requirements of the offence as he has stolen and put a person in fear of force at the time of stealing
The shopper has not satisfied the requirements of the offence as he has not put a person in fear of being then and there being subjected to force
This question tested your ability to apply the law on robbery, in particular the ‘then and there’ requirement.
Correct. The Theft Act 1968 section 8 makes it clear that the essence of robbery is the use of force during the course of the theft or the threat of being ‘then and there being subjected to force’. A threat of future force, which we have here, will not suffice. The other options are incorrect. A theft and the shopper threatening future force at the time of the theft will not suffice. A theft and the shopper threatening future force in order to steal will not suffice. The shopper has threatened the shop worker with force at the time of the theft, if we rely on the continuing act theory from R v Hale. The threat of force is made while the shopper is continuing to appropriate the wallet. The force used or threatened does not have to be directed towards the person from whom the property is stolen.
Incorrect. There is a theft and the shopper has threatened force in order to steal. However, look back at the specific requirements under s 8 Theft Act 1968- a threat of future force, which we have here, will not suffice.
Incorrect. The use or threat of force can be on any person, not necessarily the person stolen from. Look back at the specific requirements under s 8 Theft Act 1968- a threat of future force, which we have here, will not suffice.
Incorrect. If we rely on the continuing act theory from R v Hale, it can be said that the threat of force is at the time of the theft. The threat of force is made while the shopper is continuing to appropriate the wallet, so is at the time of the theft. Look back at the specific requirements under s 8 Theft Act 1968- a threat of future force, which we have here, will not suffice.
Incorrect. There is a theft and the shopper has threatened force at the time of the theft. However, look back at the specific requirements under s 8 Theft Act 1968- a threat of future force, which we have here, will not suffice.
A student has been invited to a book club reading held in his University’s library. The student is eager to go as he saw a first edition of his girlfriend’s favourite book in the library earlier that morning, and wants to give it to her. The student attends the book club reading and before leaving, he picks up the first edition to put into his bag. At that moment, the librarian calls out to him. The student hastily puts the book back on the shelf and leaves.
Which of the following best describes the student’s liability for burglary under the Theft Act 1968?
Select one alternative:
The student would be liable for both s 9(1)(a) burglary as he intended to steal the book once inside the library, and s 9(1)(b) burglary as he committed a theft once inside
The student would be liable for both s 9(1)(a) burglary as he intended to steal the book once inside the library, and s 9(1)(b) burglary as he committed an attempted theft once inside
The student would be liable for s 9(1)(a) burglary as he intended to steal the book once inside the library, but not s 9(1)(b) burglary as he did not commit a theft or attempted theft once inside
The student would not be liable for s 9(1)(a) burglary as he did not steal the book once inside the library, nor s 9(1)(b) burglary as he did not commit a theft or attempted theft once inside
The student would not be liable for s 9(1)(a) burglary nor s 9(1)(b) burglary as he did not enter as a trespasser
The student would be liable for both s 9(1)(a) burglary as he intended to steal the book once inside the library, and s 9(1)(b) burglary as he committed a theft once inside
This question tested your ability to apply the law on burglary. You needed to identify what type of burglary had been committed (s 9(1)(a) and/ or (b) Theft Act 1968) on the basis of which ulterior offence.
This is correct. The student planned to take the book before he went in, satisfying s 9(1)(a) Theft Act 1968 (for the purposes for s 9(1)(a) it does not matter if he successfully steals the book or not).The student entered as a trespasser as he exceeded permission to enter under R v Jones & Smith. The student committed a theft inside the library (rather than an attempted theft) when he picked up the book (an appropriation), intending to take it away, satisfying s 9(1)(b). The other options were incorrect or not the best answer.
This is incorrect. The student planned to take the book before he went in, satisfying s 9(1)(a) Theft Act 1968. However, he committed a theft (rather than attempted theft) inside the library when he picked up the book (an appropriation), intending to take it away. Review your materials on burglary and appropriation for the purposes of theft.
An employee who has just been made redundant is furious as he has been working much harder and for a longer period of time than some of his co-workers, who have not been made redundant. After working hours, the employee sneaks into his manager’s office, opens the cabinet and takes the money from the petty cash box. The employee is about to leave the manager’s office when the manager returns. The manager shouts, ‘What do you think you’re doing in my office?’ The employee picks up a laptop and hits the manager hard on the head with it, causing a deep cut that bleeds heavily. The employee runs out.
Which of the following best describes the employee’s liability for aggravated burglary?
Select one alternative:
The employee will not be liable as he did not have a weapon of offence on him at the time he committed the burglary
The employee will be liable as it does not matter that he hit the manager on the head with the laptop after the initial appropriation of the money took place
The employee will not be liable as the laptop will not constitute a weapon of offence
The employee will not be liable as he did not enter as a trespasser
The employee will be liable as the laptop will constitute a weapon of offence as it was made for the purpose of injuring or incapacitating a person
The employee will be liable as it does not matter that he hit the manager on the head with the laptop after the initial appropriation of the money took place
This question tested your ability to apply the law on aggravated burglary, in particular the meaning of a weapon of offence.
Correct. For aggravated burglary, the defendant must have the firearm, imitation firearm, weapon of offence or explosive with him at the time he commits the burglary. Where the burglary is based on a theft, the defendant will commit aggravated burglary if he has the article (here the weapon of offence) with him during the appropriation which may be a continuing act. Appropriation is likely to be deemed a continuing act here, R v Hale. He has the laptop with him while still continuing to appropriate the money (for the purposes of theft/ burglary). The other options are incorrect. The employee ‘sneaked’ into the manager’s office after working hours and entered without permission. This will make him a trespasser, R v Collins. The laptop was intended to cause injury, and therefore would constitute a weapon of offence, s 10(1)(b) Theft Act 1968. The laptop was not made for the purpose of injuring or incapacitating a person.
Incorrect. The laptop was not made for this purpose, rather it was intended to cause injury. Review your materials, in particular the wording of s 10(1)(b) Theft Act 1968.
Your client has been charged with an offence of fraud by abuse of position. For the past year, she has been living rent free with an elderly cousin who is housebound, in her cousin’s house. Your client has taken charge of her cousin’s finances and pays all living expenses, including her own, from a bank account in her cousin’s name. Your client has also transferred several thousand pounds from the account to her own bank account without telling her cousin that she has done so. She tells you this is payment for her role as carer of her cousin.
Which of the following best explains how the jury will decide whether your client is dishonest for the purposes of fraud by abuse of position?
Select one alternative:
Your client will be viewed as dishonest because ordinary honest people would regard her transfer of monies into her own account as dishonest
Your client will not be viewed as dishonest if she believed her cousin would have consented to the transfer of monies
Your client will be viewed as dishonest if, given her knowledge that she did not have her cousin’s permission to transfer the monies into her own account, ordinary honest people would regard her actions as dishonest
Your client will not be regarded as dishonest if she believed she had a right in law to payment for her role as carer
Your client will be viewed as dishonest because ordinary honest people would regard the transfer of monies into her own account without her cousin’s permission as dishonest and the client should realise this
Your client will be viewed as dishonest if, given her knowledge that she did not have her cousin’s permission to transfer the monies into her own account, ordinary honest people would regard her actions as dishonest
This question tested your ability to apply the meaning of dishonesty in the context of fraud by abuse of position.
Correct. This is the test for dishonesty as set out in Ivey v Genting Casinos. The other options, while plausible are incorrect because they: • do not accurately reflect the test for dishonesty in Ivey v Genting Casinos or • reflect the dishonesty exceptions in section 2(1)(a) or section 2(1)(b) Theft Act 1968 which do not apply to offences under the Fraud Act 2006.
Incorrect. This reflects only part of the test for dishonesty as reflected in Ivey v Genting Casinos. Please review your materials on fraud, in particular the mens rea of fraud by abuse of position.
Incorrect. This reflects the dishonesty exception in section 2(1)(b) Theft Act 1968 which does not apply to offences under the Fraud Act 2006. Please review your materials on fraud, in particular the mens rea of fraud by abuse of position.
Incorrect. This reflects the dishonesty exception in section 2(1)(a) Theft Act 1968 which does not apply to offences under the Fraud Act 2006. Please review your materials on fraud, in particular the mens rea of fraud by abuse of position.
Incorrect. This does not accurately reflect the test for dishonesty in Ivey v Genting Casinos. Please review your materials on fraud, in particular the mens rea of fraud by abuse of position.
A customer goes into a café then orders a coffee and croissant for his breakfast. The café is very busy and there is only one barista serving food and drinks. The customer drinks his coffee and eats the croissant. He opens his wallet and discovers that he does not have sufficient cash, nor a credit card, to pay his bill. The customer waits until the barista leaves the counter to take rubbish out the back of the café then leaves by the front entrance without paying.
Is the customer likely to be criminally liable for the offence of fraud by false representation?
Select one alternative:
Yes because he represented that he was intending to pay which becomes untrue after he realises he does not have the means to pay and waits for an opportunity to leave without paying
Yes because other people would consider him to be dishonest in these circumstances where he did not check when he placed his order that he could pay
No because there is no coincidence of actus reus and mens rea, the representation was complete when he placed the order with the barista and he forms mens rea later
No because given he had already drunk the coffee and ate the croissant there was no intention to make a gain or cause a loss by his representation as an honest customer at that point
No if he honestly believes that other people would not consider him to be dishonest in these circumstances where he intended to pay when he placed his order and realised he could not only after he had consumed his breakfast
Yes because he represented that he was intending to pay which becomes untrue after he realises he does not have the means to pay and waits for an opportunity to leave without paying
This question tested your ability to apply the principle of a continuing representation in the context of fraud by false representation.
Correct. When he entered the café and ordered his breakfast, he represented that he was an honest customer who intended to pay for the food and drink. This was true at that time. However, it becomes untrue after he realizes he does not have the means to pay his bill and waits for an opportunity to leave without paying. The original representation will continue, R v Ray, and it has now become untrue so, subject to mens rea, he will be liable for the offence as the actus reus is complete. If the mens rea for the offence can be established at some point during the continuance of the actus reus, as in this case, the offence will be established, Fagan v MPC. The other answers while plausible are incorrect because: • There is coincidence of actus reus and mens rea • Gain includes keeping what one has which includes money he would have paid for his breakfast after consuming it; • The test for dishonesty is set out in Ivey v Genting Casinos which applied to this scenario would ask: What was the customer’ knowledge and belief as to the facts? Given that knowledge and those beliefs, was the customer dishonest by the standards of ordinary decent people?
Your client has been charged with an offence of fraud by false representation. He applied for a job as a landscape gardener. The job description stated that applicants should have worked as a landscape gardener for at least ten years. In his application, which he submitted online, your client left unanswered a question asking him to confirm that he had such experience. Although he worked for a local authority in its Parks division for over ten years, he had received no training in landscape work and most of his time had been spent mowing lawns in the parks. However, he believed that his own work experience and watching the local authority’s landscape gardeners at work, made him qualified for the job.
Which of the following best explains your client’s liability for the offence of fraud by false representation?
Select one alternative:
Your client is liable for the offence as his silence alone in response to the question asking him to confirm his experience will amount to a false representation
Your client may not liable for the offence as the representation was made online and not to a person
Your client may not be liable for the offence because although he has told a lie, it does not follow that he is dishonest
Your client is liable for the offence as he knew he was telling a lie about his training and is therefore dishonest
Your client may not be liable for the offence as a job would not fall within the definition of ‘gain’ for the purposes of fraud
Your client may not be liable for the offence because although he has told a lie, it does not follow that he is dishonest
This question tested your understanding of the relationship between a false representation and dishonesty for the purposes of fraud by false representation.
Correct. It was stated in R v Clarke that Parliament had included the requirement of dishonesty as well as the requirement for a deception (now a false representation), and so there should be a direction given to the jury in the terms set out in Ivey v Genting Casinos. The other options, while plausible are incorrect: • Although the client knew that he did not have the experience required to qualify for the job, it cannot be assumed that he is dishonest • A job can qualify as a gain under the meaning of the Fraud Act 2006 • It is possible to make a false representation for the purposes of a fraud offence in any form, including through a machine, s 2(5) Fraud Act 2006. • A false representation may not be implied by silence alone.
An amateur boxer was in a supermarket with a one way system. Another elderly customer was walking towards him and he pointed out that she was going the wrong way down the aisle. The customer was angered by the boxer’s comment. She raised her walking stick at the boxer and yelled ‘Shut up! The rules are nonsense. Get out of my way’. The boxer raised his arm above his head instinctively, took a step back then rolled his eyes and walked away.
Which of the following best explains whether the customer has fulfilled the actus reus of assault?
Select one alternative:
She has not caused the boxer to fear immediate unlawful personal violence
She may have caused the boxer to fear immediate unlawful personal violence
She may have caused the boxer to apprehend immediate unlawful personal violence
She has not applied unlawful force on the boxer
She has not caused the boxer to apprehend immediate unlawful personal violence
She may have caused the boxer to apprehend immediate unlawful personal violence
This question tested your understanding of the meaning of apprehension for the purposes of an assault.
Correct. The customer has potentially committed the actus reus of assault which is causing the victim to apprehend immediate and unlawful personal violence, Fagan v MPC. Apprehension means to perceive or understand. On the facts, the boxer raised his arm above his head instinctively, took a step back then rolled his eyes all of which suggests that he perceived she was about to strike him with the walking stick. The other options, while plausible, are incorrect: • As the boxer did apprehend immediate unlawful personal violence. • The actus reus of assault does not require fear, so it does not matter that the boxer rolled his eyes as if unafraid. • If the customer applied unlawful force on another she would fulfil the actus reus of battery rather than assault.
During the final of a national football competition, the striker of the Blue team scored two goals. A member of the Red team decides to take the Blue’s striker out of the game, to try to give the Red team a chance of equalling the score. After the whistle blows for half time, the Red’s player tackles the Blue’s striker hard and violently. The Blue’s striker falls to the ground and suffers a badly sprained ankle which she cannot walk on unaided for several days. The medical team commented that the Blue’s striker was lucky the tackle did not end her professional career as a footballer. The Red’s player was sent off by the referee and was later charged with assault occasioning actual bodily harm at the police station.
Which of the following best explains whether the Red’s player will be able to rely on the defence of consent?
Select one alternative:
No because the force of the Red’s player went beyond what the Blue’s striker could reasonably be regarded as having accepted by taking part in the football match
No because consent is not available when the charge is assault occasioning actual bodily harm
Yes because the force of the Red’s player did not go beyond what the Blue’s striker could reasonably be regarded as having accepted by taking part in the football match
Yes because the public interest exception that encourages people to play sport will apply
Yes because the Blue’s striker has impliedly consented to injury caused while playing football
No because the force of the Red’s player went beyond what the Blue’s striker could reasonably be regarded as having accepted by taking part in the football match
This question tested your ability to apply the public interest exceptions to consent, in particular the sports exception.
Correct. The general rule is that consent is only available as a defence to assault and battery. However, where the Red’s player intends ABH or above, consent is not available unless one of the public interest exceptions apply. There is a public interest exception for incidental injury caused while playing within the rules of the game. The Blue’s striker will have consented to incidental injury. However, these facts suggest that the conduct of the Red’s player went beyond what the Blue’s striker could reasonably be regarded as having accepted by taking part in the sport, so not covered by the defence of consent. Factors which suggest this on the facts are: it’s a national competition, the degree of force is described as hard and violent, it was not in the heat of the moment, the Red’s player did it deliberately to take the Blue’s player out of the game and the Red’s player was sent off. The other options while plausible are incorrect because: • While the general rule is that consent is only available as a defence to assault and battery this is not the best explanation. There was a possibility that the Red’s player could have relied on the sports public interest exception but the correct answer discounts it. • While there is a public interest exception for incidental injuries caused in sports, the defence of consent does not automatically apply. Criminal prosecution can still be applied in situations where the conduct was sufficiently grave to be categorised as criminal. • The concept of implied consent is applied to a certain amount of physical contact must be accepted to move around in society, such as jostling in the supermarket, underground and busy street. • Participants in sport consent to incidental injury caused while playing within the rules of the game, however the Red’s player has gone beyond this on the facts.
A few friends are having a bowling contest. During the game, one friend is doing really well and he teases your client about her score. This annoys your client so she inserts some super glue into the finger holes of the bowling ball her friend is about to use. She aims to embarrass her friend but does think that he could possibly fall over with the ball. Her friend attempts to make a throw but cannot let go of the ball. He falls heavily onto the lane and suffers a deep cut to his leg.
Which of the following best explains your client’s liability for inflicting grievous bodily harm?
Select one alternative:
Your client will be liable as she was reckless as to causing some harm to her friend
Your client will not be liable as she did not intend to cause grievous bodily harm to her friend
Your client will not be liable because she did not intend to wound her friend
Your client will be liable as she intended to wound her friend
Your client will be liable as she intended to cause grievous bodily harm to her friend
Your client will be liable as she was reckless as to causing some harm to her friend
This question tested your ability to apply your understanding of s 20 and s 18 Offences Against the Person 1861 to a scenario.
Correct, as although she wanted to embarrass her friend, she was aware of causing her friend some harm (that he could fall over with the ball), and that was an unreasonable risk to take, as per R v G. The other options while plausible are incorrect: • On the facts her aim is to embarrass her friend, so she did not intend to cause him serious harm. • The mens rea for s 20 is intention or recklessness as to causing some harm • Recklessness as to causing some harm should have been considered before suggesting the client had no criminal liability • Wounding does not form part of the mens rea of s 20 Offences Against the Person Act 1861, see Savage; Parmenter / Mowatt.
Two friends are out drinking one evening and consume quite a few shots of alcohol spirits. When they return home one of the men suggests he hold a flame against the other’s arm and they would see how long he could stand the heat. The other friend agrees and suffers severe burns to his arm. The man is charged with causing grievous bodily harm with intent.
Which of the following best explains how the court will direct the jury to approach the question of intoxication in this case?
Select one alternative:
The court will direct the jury that voluntary intoxication is not a defence to causing grievous bodily harm with intent
The court will direct the jury to consider was the man incapable of forming an intention to cause serious harm to his friend?
The court will direct the jury that voluntary intoxication is automatically a defence to causing grievous bodily harm with intent
The court will direct the jury to consider if capable, did the man form the intention to cause serious harm to his friend?
The court will direct the jury to consider would the man have formed an intention to cause serious harm to his friend if sober?
The court will direct the jury to consider if capable, did the man form the intention to cause serious harm to his friend?
This question tested your ability to apply the law on voluntarily intoxication with alcohol in the context of a specific intent offence.
Correct. This is the question the court will ask the jury to consider as the man is voluntarily intoxicated with alcohol and is charged with a specific intent offence. The other options, while plausible, are incorrect. • The court will go beyond capability and ask the jury to consider if the man did form the relevant mens rea. • Would the man have formed an intention to cause serious harm to his friend if sober? This is the question that the court would consider if the man was voluntarily intoxicated with alcohol and committed a basic intent offence. • Voluntary intoxication can but is not automatically a defence to specific intent crimes such as causing grievous bodily harm with intent.
A father, his wife and child are sleeping in a first-floor flat. He hears a commotion downstairs. The father goes down an internal staircase which joins their flat to the butcher shop where he works. The father sees an intruder in their butcher shop and so picks up a knife. The father stabs the intruder in the chest several times until he stops moving. The intruder dies.
Which test will be used to determine whether the father responded in self-defence?
Select one alternative:
Was the force grossly disproportionate?
Was the force reasonable and proportionate?
Was the force reasonable?
Was the force disproportionate?
Was the force grossly disproportionate, and if not, was the force reasonable?
Was the force grossly disproportionate, and if not, was the force reasonable?
This question tested your ability to apply the law on self-defence, in the context of a householder case.
Correct. The answer best reflects the wording of s 76 Criminal Justice and Immigration Act 2008. The father must honestly believe that it was necessary to use force to protect himself (the trigger) – a subjective question. The force used must be reasonable (the response) – an objective question but judged on the facts as the father believed them to be. When assessing his response, this case should be identified as a householder case (s 76(8A)), as the act took place part of a building that is a dwelling (his flat is above the butcher shop), the father was not a trespasser and he believed the intruder was a trespasser. Section 76(8B) provides that where a part of the building is a dwelling where the defendant dwells, another part of the building is a place of work for the defendant, and that other part is internally accessible from the first part, each part will be treated, for the purposes of s 76(8A), as a part of the building that is a dwelling. First it must be asked if the force was grossly disproportionate, s 76(5A). If it was, the father cannot successfully rely on the defence. If it was not, then it must be asked if the force was reasonable, R v Ray (Steven).
Your client has been charged with murder. He was having a drink in a bar with friends when the victim started subjecting them to homophobic abuse. He tells the victim that such behaviour is totally unacceptable and must stop at once. The victim pushes him up against a wall and holds a knife to his throat. He manages to pick up a bottle from a nearby table and hits the victim repeatedly over the head with it. The victim dies of his injuries.
How is the judge likely to direct the jury on conviction in light of the defences available?
Select one alternative:
The judge will direct the jury that if they reject self-defence, but think that some force was justified, they must acquit the client of murder, but convict him of voluntary manslaughter
The judge will direct the jury that if they reject self-defence, they must convict the client of murder
The judge will direct the jury that, in the circumstances, the only defence available to the client is self-defence
The judge will direct the jury that, in the circumstances, the only defence available to the client is loss of control
The judge will direct the jury that if they reject self-defence, they must consider whether to convict the client of voluntary manslaughter on the basis of the loss of control defence
The judge will direct the jury that if they reject self-defence, they must consider whether to convict the client of voluntary manslaughter on the basis of the loss of control defence
This question tested your ability to identify two relevant defences- self-defence and loss of control along with how they operate together.
Correct. The answer accords with the approach taken in R v Dawes, Hatter & Bower. While the other answer options might sound plausible, they are each incorrect. Self-defence is an all or nothing defence, your client will either be acquitted on the basis of self-defence or convicted of murder. Voluntary manslaughter is not an option for the jury on the basis of self-defence. Loss of control is potentially available on these facts which if successful would result in a conviction of voluntary manslaughter.
Incorrect. The judge will also direct the jury to consider loss of control. Please review your materials on self-defence and loss of control. Consider, in particular, the approach taken in R v Dawes, Hatter & Bower.
An actor shares an apartment with a friend and they are rehearsing a swordfight scene for his upcoming play. During the fight, both parties strike the other with their plastic swords. The rehearsal ends when the actor strikes his friend on the head with his plastic sword and the friend collapses and dies. Unknown to both of them, the friend has a brain tumor and even the slightest blow to the head will cause extensive bleeding to the brain.
Which of the following statements most accurately reflects the actor’s liability for unlawful act manslaughter?
Select one alternative:
The actor is liable because he has intentionally applied unlawful force for a battery
The actor is not liable because the brain tumour was the only cause of death
The actor is not liable because he has not intentionally or recklessly applied unlawful force for a battery due to consent
The actor is liable as he must take his friend as he finds him with a brain tumour that makes his attack worse than anticipated
The actor is liable because he has recklessly applied unlawful force for a battery
The actor is not liable because he has not intentionally or recklessly applied unlawful force for a battery due to consent
This question tested your ability to apply the law on unlawful act manslaughter in particular your knowledge of an unlawful act.
Correct. Although the actor intentionally applied force to the friend when he struck him, the friend consented and he did so believing that the friend consented to the application of force. No criminal unlawful act is committed, R v Lamb. The other options while plausible are incorrect. • It was not the actor’s aim or purpose to apply unlawful force to his friend due to the presence of the friend’s consent to the swordfight. The facts do not suggest that the actor was reckless on the R v G test- he did not see a risk of applying unlawful force for a battery. • The blow to the head is both factually and legally a cause of death. • While the thin skull rule is relevant on these facts, the actor is not liable due to the lack of unlawful act.
Your client is a doctor who works in general practice. A young child was brought into her surgery complaining of pains in his ear. The doctor conducted a brief examination of the child’s ear and, concluding there was no real cause for concern, sent the child home with a prescription for antibiotics. In fact, the child was suffering from a rare tumor in his ear and the child died a few days later. The tumor might have been discovered had your client conducted a full examination of the child’s ear. Your client has been charged with an offence of manslaughter by gross negligence.
Which of the following best explains your client’s liability for gross negligence manslaughter?
Select one alternative:
The client will not be liable for gross negligence manslaughter unless it is established that there was an obvious and serious risk of harm at the time the examination was conducted
The client will not be liable for gross negligence manslaughter unless it is established that there was an obvious and serious risk of death at the time the examination was conducted
The client will be liable as it can be shown that had she carried out a full examination of the child, the tumor would have been revealed
The client will not be liable for gross negligence manslaughter unless it is established that she foresaw an obvious and serious risk of harm at the time the examination was conducted
The client will not be liable for gross negligence manslaughter unless it is established that she foresaw an obvious and serious risk of death at the time the examination was conducted
The client will not be liable for gross negligence manslaughter unless it is established that there was an obvious and serious risk of death at the time the examination was conducted
This question tested your ability to apply the law on gross negligence manslaughter, in particular whether there was a risk of death.
Correct. When deciding whether there is an obvious and serious risk of death, the jury are not entitled to take into account information which would or could have been available to the client if she had conducted a full examination, R v Rose. The other options while plausible are incorrect. For gross negligence manslaughter, the breach of the duty of care must carry an obvious and serious risk of death, not merely of harm. The risk of death is assessed objectively, and it is not necessary to prove that the defendant recognised that risk. An obvious risk is clear and unambiguous not one which might become apparent on further investigation.
Incorrect. The foreseeable risk is limited to death only. Please review your materials on gross negligence manslaughter, in particular the cases of R v Adomako, R v Singh and R v Misra and Srivastava.
A farmer keeps a mixture of live and blank cartridges for his gun in his satchel. He picks up his gun and a handful of cartridges then confronts an intruder. He fires at the intruder and kills him. The farmer claims he mistakenly thought he put a blank cartridge in the gun. A reasonable person would have been aware of the difference in weight and would not have made that mistake.
Which of the following best explains whether the act was dangerous for the purposes of unlawful act manslaughter?
Select one alternative:
Yes because the sober and reasonable person would not have made the mistake
Yes because the sober and reasonable person knows everything the farmer would have known including any special knowledge about the difference in weight that he ought to have known, so would not have made that mistake
Yes because the farmer had special knowledge about the difference in weight as he kept the live and blank cartridges in one satchel
No because the farmer merely made a mistake
No because the farmer does not know what the reasonable person knows
Yes because the sober and reasonable person knows everything the farmer would have known including any special knowledge about the difference in weight that he ought to have known, so would not have made that mistake
This question tested your ability to apply the test of whether an act is dangerous for the purposes of unlawful act manslaughter.
Correct. This scenario is similar to the facts in R v Ball. The dangerousness of the act is judged from the viewpoint of a sober and reasonable person. The sober and reasonable person will have knowledge of the circumstances that he would have had if he had been in the farmer’s shoes at the time of the killing. The other options while plausible are incorrect or not the best answer. We are told a reasonable person would have been aware of the difference in weight and would not have made that mistake. Whether an act is dangerous is an objective test and does not depend on the farmer’s appreciation of likely harm. This is an unreasonable mistake by the farmer. While it is a good argument that the farmer had special knowledge about the difference in weight as he kept the live and blank cartridges in one satchel- this would merely make the farmer’s claim about making a mistake untrue. Dangerousness is still an objective test.
An ex-employee is angry about being made redundant by his employer. Acting out of anger, he decides to burn down the place where he worked. The building is guarded at all times by security staff. He has with him a can of petrol and some sticks. He places the sticks by the side of the building and sets them alight. He leaves. The building does not catch fire and there is no damage.
What mens rea is required for the ex-employee to be liable of attempted aggravated arson?
Select one alternative:
Intention or recklessness as to damaging the building by fire
Intention to damage the building by fire and intention to endanger life by the damage by fire
Intention to damage the building by fire
Intention to damage the building by fire and intention or recklessness as to endangering life by the damage by fire
Intention or recklessness as to damaging the building by fire and intention or recklessness as to endangering life by the damage by fire
Intention to damage the building by fire and intention or recklessness as to endangering life by the damage by fire
This question tested your ability to apply the mens rea of attempts to the offence of attempted aggravated arson.
Correct. This reflects the rule in Att-Gen’s Ref (No 3 of 1992) that for an attempt to commit aggravated arson, it was only necessary to prove an intent to achieve what was missing from the full offence, together with the other mens rea required for the offence. For an attempt it must be shown that the ex-employee had an intention to damage property by fire and the remaining state of mind required for the offence of aggravated arson – that is intention or recklessness as to whether life was thereby endangered. The other options, while plausible, are incorrect.
Your client has been charged with causing grievous bodily harm as a secondary party on the basis that he aided the offence. His friend had a grudge against a third party. The friend asked to borrow your client’s baseball bat, saying he was going to use it to break the third party’s legs. Your client lent him the baseball bat. Later the client sent his friend a text saying he didn’t want to be involved and asking for the return of his baseball bat. His friend refused to return the bat and later used it to break the third party’s legs.
Has your client withdrawn his aid for the purposes of causing grievous bodily harm as a secondary party?
Select one alternative:
No because withdrawal must be communicated to the principal offender face-to-face
No because once he lent the baseball bat to his friend, it was too late to withdraw
Yes because he communicated his change of mind
Yes because he has withdrawn his aid before the attack takes place
No because he should have made further efforts to prevent the attack from taking place such as alert the police
No because he should have made further efforts to prevent the attack from taking place such as alert the police
This question tested your ability to withdraw when a secondary party has supplied the principal offender with the means of committing the offence.
Correct. Where the secondary party has supplied the principal offender with the means of committing the offence, more is required than a simple communication of an intention to withdraw. Here, in order to withdraw, the client would probably have had to warn the victim of the planned attack or, at the very least, to alert the police to what his friend intended to do. It is likely that a text saying he didn’t want to be involved and asking for the return of the bat will not be effective and sufficient communication to withdraw. The other options while plausible are incorrect. There must be an unequivocal communication of his intention to withdraw but this does not need to be to the principal face-to-face. His aid is less easily neutralised once he lent the baseball bat to his friend but it is still possible to withdraw after doing so.
Your client has been charged with murder as a secondary party on the basis of joint enterprise. Your client and his friend were in a nightclub and had an argument with the bar staff over the price of drinks. They were asked to leave by the security guard who escorted them out of the club. Outside the club, your client and his friend attacked the security guard which left him with a bloody nose. As they were walking away from the club, your client’s friend suddenly ran back and killed the security guard.
Has your client withdrawn from the joint enterprise?
Select one alternative:
Yes because withdrawal from spontaneous violence does not require communication of such withdrawal to the principal offender
No because he took part in the initial attack so it was too late to withdraw from the joint enterprise
Yes because withdrawal from pre-planned violence does not require communication of such withdrawal to the principal offender
No because withdrawal from pre-planned violence requires communication of such withdrawal to the principal offender
No because withdrawal from spontaneous violence requires communication of such withdrawal to the principal offender
Yes because withdrawal from spontaneous violence does not require communication of such withdrawal to the principal offender
This question tested your ability to apply the principles of withdrawal in the context of a joint enterprise that lead to spontaneous violence.
Correct. The attack which killed the victim was an act of spontaneous violence by the principal offender so communication of withdrawal is not required, R v Mitchell and King. The other options are incorrect. A joint enterprise is where two or more people are committing a crime together. If the principal party goes on to commit a different crime, the secondary party will be liable for that crime only if it is committed in the course of, or is incidental to the first crime they set out to commit. Communication of withdrawal is a necessary condition for disassociation from pre-planned violence, R v Mitchell and King. Communication of withdrawal is not necessary when the violence is spontaneous, R v Mitchell and King.
A solider lawfully kills an enemy in battle.
What criminal liability is the solider likely to have, if any?
Voluntary manslaughter
No criminal liability
Murder
No criminal liability
Correct. The solider has not fulfilled one of the actus reus elements of murder- to ‘unlawfully’ kill another human being.
A disgruntled ex-employee feels he is owed money from his former employer and wants to make her pay. The ex-employee goes to his former place of employment and stabs the manager with his knife, killing her.
What criminal liability is the ex-employee likely to have, if any?
Voluntary manslaughter
Murder
No criminal liability
Murder
Correct. On the face of it, it looks like the ex-employee has fulfilled the actus reus and mens rea of murder.
A homeowner who had been previously burgled, suffers from paranoia and post traumatic stress disorder (which will be recognised medical conditions for the purposes of diminished responsibility). The homeowner, who now believes that everyone that comes onto his land is an intruder, shoots a delivery person in the back of the head as they are walking back to their van having dropped off a package. The delivery person dies.
Self-defence is only available if the homeowner uses force that is not grossly disproportionate.
What criminal liability is the homeowner likely to have, if any?
Murder
No criminal liability
Voluntary manslaughter
Voluntary manslaughter
Correct. On the face of it, the homeowner has the actus reus and mens rea of murder. As the homeowner suffers from paranoia and post traumatic stress disorder, this suggests he may be able to rely on the partial defence of diminished responsibility. Self-defence is unlikely to be available in this scenario as the homeowner has acted with grossly disproportionate force.
Has robbery been committed?
In the scenarios that follow, let’s assume that a theft has been committed. Consider whether the defendants are criminally liable for robbery.
Helen, Julie and Grant are waiting at a bus stop. Helen is talking on her mobile. Grant grabs Julie’s arm and twists it behind her back, saying to Helen ‘Give me that phone or I’ll break her arm.’ Helen has never met Julie before, but gives Grant the mobile and Grant runs off.
This is robbery. Grant has stolen.
He has used force on Julie, who counts as any person. The term ‘any person’ makes clear that the force need not be used on the person from whom he is stealing, or have any connection with the person from whom he is stealing.
Grant has used this force immediately before stealing and he has done it in order to steal. Helen has probably handed over the mobile to protect Julie, but there is no requirement in the section for this causal link.
Has robbery been committed? In the scenarios that follow, let’s assume that a theft has been committed. Consider whether the defendants are criminally liable for robbery.
Nathan is sitting opposite Mavis on a train. Mavis’s handbag is on the table between them. There is only one other person in their carriage. As the train approaches a station, Nathan whispers to Mavis ‘I want your bag, one squeak from you and I’ll punch you in the face’. Mavis is too deaf to hear this, so smiles back at Nathan. Nathan grabs her handbag, runs out of the carriage and leaves the train.
This is robbery.
Nathan has stolen the bag and immediately before and in order to do so he has sought to put Mavis in fear of being then and there subjected to force.
It doesn’t matter that he hasn’t used any force or that Mavis hasn’t been put in fear that he will.
Has robbery been committed? In the scenarios that follow, let’s assume that a theft has been committed. Consider whether the defendants are criminally liable for robbery.
Anna steals Lyndon’s wallet while he is buying a train ticket. Later that day Lyndon comes across Anna in a supermarket queue and makes to grabs her arm. Anna kicks Lyndon in the shin and runs off.
This is not robbery.
Anna has stolen Lyndon’s wallet.
She has also used force on Lyndon.
But she hasn’t used the force before or at the time of stealing, nor has she used the force in order to steal.
Has robbery been committed? In the scenarios that follow, let’s assume that a theft has been committed. Consider whether the defendants are criminally liable for robbery.
Abi confronts Jo who is pushing her daughter Lucy, aged three in a pushchair in the park. Abi brings out a knife and waves it in Lucy’s face, saying menacingly ‘Give me your purse or I’ll spoil her looks forever’. Lucy screams in fright and Jo gives Abi her purse.
This is robbery.
Abi has stolen the purse and she has put Lucy in fear of being then and there subjected to force.
She has waved a knife in Lucy’s face and Lucy has screamed.
Lucy is ‘any person’.
She has done this immediately before stealing and in order to steal.
There are a few more scenarios for you to try in multiple-choice question format.
Abi comes across Dan who is walking his dog, Poppy in the park. Abi scoops up Poppy and holds a knife to Poppy’s throat, saying menacingly ‘Give me your wallet or the dog cops it.’ Dan gives Abi his wallet.
Assume a theft has been committed. Is Abi criminally liable for robbery?
No- the timing element is missing
No- the force element is missing
Yes- Dan fears a dog will be subjected to force
No- the force element is missing
Correct. This is not robbery. Although she has stolen Dan’s wallet and threatened force immediately before stealing and in order to steal she hasn’t used force, or put any person in fear of force nor has she sought to put any person in fear of being subjected to force. Making a person (Dan) fear a dog, or indeed another person would be subjected to force isn’t included in the definition.
Ben insults Matt so Matt punches Ben in the face. As a result Ben’s wallet falls out of his pocket. Matt picks up the wallet and runs off with it.
Assume a theft has been committed. Is Matt criminally liable for robbery?
No- he has not used force in order to steal
No- the timing element is missing
Yes
No- he has not used force in order to steal
Correct. Matt has stolen. He has used force on Ben and has done so immediately before stealing. However, this is not robbery as he has not done so in order to steal.
Abdul goes into the local shop and tells Ravi, who is behind the counter, that he knows where Ravi’s mother lives and unless Ravi gives him five packets of cigarettes he will break Ravi’s mother’s leg. Ravi gives Abdul cigarettes.
Assume a theft has been committed. Is Abdul criminally liable for robbery?
No- the timing element is missing
Yes
No- the force element is missing
No- the force element is missing
Correct. Abdul has stolen and immediately before and in order to do so threatened force, but there is nobody who is frightened that they will be subjected to force and nobody whom Abdul is seeking to put in fear of being subjected to force.
Activity: Felix commits burglary. In the cases that follow consider:
would Felix be guilty of aggravated burglary; and
if so, how the item he has with him makes him liable for this offence.
He has with him a length of rope which he intends to use to tie up any person who disturbs him.
This is aggravated burglary.
He has with him a weapon of offence.
A length of rope is a weapon of offence by virtue ofs 10(1)(b)because it is an article which, while not made to incapacitate a person, is intended for such use by Felix.
Note the statutory reference iss 10(1)(b)not s 10(b). Always give the full subsection when providing statutory references. It is a common error of students in assessments not to do so.
Activity: Felix commits burglary. In the cases that follow consider:
would Felix be guilty of aggravated burglary; and
if so, how the item he has with him makes him liable for this offence.
He has with him an air gun.
This is aggravated burglary.
An airgun counts as a firearm by virtue ofs 10(1)(a)– “firearm” includes an airgun.
Activity: Felix commits burglary. In the cases that follow consider:
would Felix be guilty of aggravated burglary; and
if so, how the item he has with him makes him liable for this offence.
He has with him a screwdriver which he has used to break into the house.
This is not aggravated burglary.
The screwdriver is not a firearm or imitation firearm or explosive, so it can only count by being a weapon of offence. However it is not an article made or adapted for use for causing injury or incapacitating any person. Nor does Felix intend to use it for this.
Activity: Felix commits burglary. In the cases that follow consider:
would Felix be guilty of aggravated burglary; and
if so, how the item he has with him makes him liable for this offence.
During the burglary he smashes a bottle and stabs the householder with it.
This is aggravated burglary.
The bottle is a weapon of offence by virtue ofs 10(1)(b). Felix has both adapted it for use for causing injury to a person and intended it for such use.
Activity: Felix commits burglary. In the cases that follow consider:
would Felix be guilty of aggravated burglary; and
if so, how the item he has with him makes him liable for this offence.
He has a pepper spray in his pocket.
This is aggravated burglary.
A pepper spray is a weapon of offence by virtue ofs 10(1)(b)as it is an article made for incapacitating a person.
Activity: Felix commits burglary. In the cases that follow consider:
would Felix be guilty of aggravated burglary; and
if so, how the item he has with him makes him liable for this offence.
He has a cricket bat which he intends to use to smash the ornaments in the house.
This is not aggravated burglary.
A cricket bat is not an article made or adapted to cause injury to or for incapacitating any person and it is intended for use for causing injury to objects, but not to people.
Re-reads 10(1)(b)carefully if you assumed this was a weapon of offence.
Activity: Felix commits burglary. In the cases that follow consider:
would Felix be guilty of aggravated burglary; and
if so, how the item he has with him makes him liable for this offence.
He with him a wooden post, one end of which his friend has sharpened into a spike.
This is probably aggravated burglary.
The post will have become a weapon of offence by virtue ofs 10(1)(b)if the friend sharpened the end so it could be used for causing injury. It has therefore been adapted for such use.
Activity: Felix commits burglary. In the cases that follow consider:
would Felix be guilty of aggravated burglary; and
if so, how the item he has with him makes him liable for this offence.
Felix has a hammer given to him by Jon. Felix had used the hammer to smash his way into the house. Jon intended Felix to use the hammer to hit anyone who disturbed him.
This is not aggravated burglary as long as Felix didn’t intend to use the hammer to injure anyone.
It will not be a weapon of offence just because Jon intended it to be used to injure a person.Section 10(1)(b)says it must be ‘intended by the person having it with him for that purpose.’
Note this is different from the spike in the previous scenario which had been adapted to injure.
Felix commits burglary.
He has in the bottom of his rucksack an imitation handgun which he is looking after for a friend, but does not intend to use. The handgun is not capable of being fired.
Is Felix guilty of aggravated burglary and if so how?
Felix will not be guilty of aggravated burglary as it is incapable of being fired
Felix will be guilty of aggravated burglary as long as he has the rucksack with him during the burglary
Felix will not be guilty of aggravated burglary as he does not intend to use it
Felix will be guilty of aggravated burglary as long as he has the rucksack with him during the burglary
Correct. A handgun is a firearm, so an imitation handgun is an imitation firearm by virtue of s 10(1)(a) as it will have the appearance of being a firearm. This subsection states that it doesn’t matter that the imitation gun is incapable of being discharged. There is nothing to say that he has to intend to use the imitation firearm.
Felix commits burglary.
He has a firework in his pocket.
Is Felix guilty of aggravated burglary and if so how?
Felix is guilty of aggravated burglary as the firework is an explosive
Felix will not be guilty of aggravated burglary as the firework is not an explosive
Felix will not be guilty of aggravated burglary as he does not intend to do anything with the firework during the burglary
Felix is guilty of aggravated burglary as the firework is an explosive
Correct. A firework is an explosive by virtue of s 10(1)(c). It is an article manufactured for the purpose of producing a practical effect by explosion. There is no need for him to intend to do anything with the firework during the burglary.
Felix commits burglary.
In the kitchen he picks up a knife which he intends to use on anyone who disturbs him.
Is Felix guilty of aggravated burglary and if so how?
Felix is not guilty of aggravated burglary
Felix is guilty of aggravated burglary
Felix will only be guilty of aggravated burglary if someone disturbs him and he uses the knife
Felix is guilty of aggravated burglary
Correct. The kitchen knife is a weapon of offence by virtue of s 10(1)(b). It is not made to cause injury or to incapacitate a person, nor is it adapted for use for doing this, but it is intended by the person having it with him for such use. It is intended to be used to injure a person. Intention includes conditional intention i.e. to use the knife in the event that someone disturbs him.
A man punches a victim several times in the face at a bar, intending to cause grievous bodily harm. The security guard thinks the victim is merely drunk and escorts the victim out of the bar rather than calling for medical assistance. When an ambulance is called, all of the crews are busy and the ambulance service are delayed in attending. The victim goes into a coma and when it is clear that the victim will not recover, the life support machine is switched off. The victim dies as a result of the man’s punches and the delay in receiving medical treatment following being escorted out of the bar.
Which statement best explains the man’s criminal liability for murder?
The man can be criminally liable for murder as his actions were the only cause of the victim’s death
The man can be criminally liable for murder as his punches were the substantial and operative cause of the victim’s death
The man cannot be criminally liable for murder as the security guard’s actions broke the chain of causation
The man cannot be criminally liable for murder as the turning off the life support machine broke the chain of causation
The man cannot be criminally liable for murder as the delay in medical treatment broke the chain of causation
The man can be criminally liable for murder as his punches were the substantial and operative cause of the victim’s death
B is the best answer. The man can be criminally liable for murder as his punches were the substantial and operative cause of the victim’s death. This reflects the test of legal causation from the case ofPagettalong with the answer we planned in outline above. Let’s check this reasoning in more detail to make sure that the other answer options are incorrect or not the best answer.
A is not the best answer, as in the scenario, there are several other contributing factors to the victim’s death- the security guard’s actions, the delay in medical treatment and the life support machine being switched off. Applying the legal principle from the case ofBenge,the man can be criminally liable for murder even if there are other causes present.
C is not the best answer, as in order for the security guard’s actions to break the chain of causation, they must be ‘free, deliberate and informed’ (the legal principle on the intervention of third parties from the case ofPagett). The security guard’s actions are not informed for example, as the security guard thought that the victim was drunk rather than in need of medical assistance.
E is not the best answer, as when you draw on the medical negligence cases, we know that the courts are reluctant to allow it to break the chain of causation. You could draw analogies to the principles from theSmithcase— the original injuries from the man’s punches were still the substantial and operating cause— the delay in medical treatment does not make the original injuries merely part of the history. Equally on the facts, it cannot be said that the delay in medical treatment is so potent that it makes the man’s actions insignificant, applying the legal principle fromCheshire.
D is now much easier to discount in light of the principles ofBenge,SmithandCheshire. Even though switching off the life support machine is a cause of the victim’s death, the man’s actions are the substantial and operating cause. The effect of the life support machine is merely to hold the injuries inflicted by the man in suspension, as soon as the life support machine is switched off the original injuries continue to act as the cause of the victim’s death. The specific issue of switching off a life support machine was considered in the case ofR v Malcherek & Steel[1981] 1 WLR 690 which is included here for completeness but logically follows from the principles discussed earlier.
A man is charged with murder following a fight outside a pub. The man and the victim supported rival football teams and got into an argument over a football result. The man had not been drinking but the victim was intoxicated. The man punched the victim several times to the head and caused the victim to fall to the floor.
An ambulance was called and the victim was taken to hospital. When the victim arrived at hospital, he was assessed but deemed as a non-urgent patient as the medical staff failed to identify a possible bleed on his brain. It was an hour before the medical staff realised that the victim would need a blood transfusion but the victim refused to have the blood transfusion and later died in hospital.
Which of the following correctly identifies whether the man is guilty of the victim’s murder?
Select one alternative:
The man will be guilty of murder as he was the factual and legal cause of the victim’s death; he was the operating and substantial cause and the victim’s refusal of the blood transfusion would not break the chain of causation.
The man will be guilty of murder as he was the factual and legal cause of the victim’s death; the refusal of the blood transfusion is irrelevant because he was the operating and substantial cause.
The man will not be guilty of murder; whilst he was the factual cause of the victim’s death, he cannot be the legal cause as the victim’s refusal of the blood transfusion would break the chain of causation.
The man will not be guilty of murder; whilst he was the factual cause of the victim’s death, he cannot be the legal cause because the negligence of the medical staff and the refusal of medical treatment together would break the chain of causation.
The man will not be guilty of murder; whilst he was the factual cause of the victim’s death, he cannot be the legal cause as the medical staff failed to recognise that he required a blood transfusion straight away and therefore they were negligent and broke the chain of causation.
The man will be guilty of murder as he was the factual and legal cause of the victim’s death; he was the operating and substantial cause and the victim’s refusal of the blood transfusion would not break the chain of causation.
This is a criminal law question, which assesses your understanding of the actus reus principle of causation. It tests your understanding of if and when a victim’s own actions and/or the actions of medical staff could break the chain of causation. Case law such as R v Blaue tells us that you should take your victim as you find them including if the victim chooses not to have specific medical treatment, even where that treatment may go on to save their life. This is known as the thin skull rule. The law recognises that the victim would not have required the medical treatment if it wasn’t for the actions of the defendant and that their actions were still an operating and substantial cause of the victims death, this means that they should not escape liability for the murder simply because of a decision made by the victim themselves.
A woman throws a punch towards a man after they argue outside the theatre but she misses the man and, instead, hits another woman who was standing next to the man. The victim suffers a black eye and bruising to her face.
Which of the following statements best describes whether the doctrine of transferred malice could be used to show that the woman is liable for assault occasioning actual bodily harm (ABH)?
Select one alternative:
The doctrine of transferred malice would apply if the woman foresaw the risk of missing the man and hitting the woman.
The doctrine of transferred malice would apply as the woman intended to punch someone it didn’t matter who the victim was.
The doctrine of transferred malice would not apply because there is no coincidence of actus reus and mens rea.
The doctrine of transferred malice would not apply because the woman’s intention to punch the man cannot be transferred to the victim.
The doctrine of transferred malice would apply as the woman’s intention to hit the man can be transferred to the victim.
The doctrine of transferred malice would apply as the woman’s intention to hit the man can be transferred to the victim.
This is a criminal law question which assesses your understanding of the Doctrine of Transferred Malice. In most cases, a defendant will only be guilty of an offence if they intended (or were reckless) to commit that offence against a specific person (or object for criminal damage). The doctrine of transferred malice allows a person to be guilty of an offence where they intended to commit that offence against person A (or object A) but missed and committed the offence against person B (or object B). The law allows the intention to be transferred to the ultimate victim.
A man is charged with murder after he kills his neighbour after an argument over a long-standing disagreement over a boundary fence. In a fit of rage, the man grabbed a hammer which was lying near the fence and hit the neighbour over the head.
Which of the following best describes whether the man is likely to be able to rely on the defence of loss of control?
Select one alternative:
The man is unlikely to be able to rely on loss of control as there is no qualifying trigger, he is likely to be suffering from an abnormality of mental functioning and should argue diminished responsibility.
The man is likely to be able to rely on loss of control as he has clearly lost control and an ongoing boundary dispute is likely to provide him with a qualifying trigger.
The man is likely to be able to rely on loss of control as he clearly lost control and a person with a normal degree of tolerance and self-restraint would have reacted the same way if they were involved in an ongoing boundary dispute.
The man is unlikely to be able to rely on loss of control as his reaction does not appear to represent what a person with a normal degree of tolerance and self-restraint would have done in the circumstances.
The man is unlikely to be able to rely on loss of control as there does not appear to be a qualifying trigger and his reaction to the argument is unlikely to represent how a person with a normal degree of tolerance and self-restraint would have reacted.
The man is unlikely to be able to rely on loss of control as there does not appear to be a qualifying trigger and his reaction to the argument is unlikely to represent how a person with a normal degree of tolerance and self-restraint would have reacted.
This is a criminal law question which assesses your knowledge of the special defence of loss of control. In order to rely on the defence, the defendant must have lost control as a result of a qualifying trigger and a person of the defendant’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of the defendant, may have reacted in the same or similar way to the defendant. The two qualifying triggers are fear of serious violence, which does not apply on the facts here and things said or done which constitute circumstances of an extremely grave character and caused the defendant to have a justifiable sense of being seriously wronged. Again, this doesn’t appear to apply on these facts. The lack of qualifying trigger would mean that the defence would fail but for the purposes of this question and the answer options we should also consider the fact that the defendant’s reaction is unlikely to be how a person of the defendant’s age and sex with a normal degree of tolerance and self-restraint and in the same circumstances as the defendant would have reacted. The defendant would not be able to rely on diminished responsibility in the alternative based on the facts known to us as there is nothing to suggest that he has is suffering from an abnormality of mental functioning or has a recognised medical condition.
Two teenagers are bored during the school holidays and decide to throw bricks from a motorway bridge as a way of relieving their boredom. They know the risks involved with throwing the bricks from the bridge and the potential damage and harm it could cause but still continue with their plan. They throw the first brick from the bridge and it hits a car which is travelling along the motorway, causing the car to crash. The car is badly damaged but the person in the car manages to escape from the car unharmed.
Which of the following best describes the teenagers’ liability under the Criminal Damage Act 1971?
Select one alternative:
The teenagers are likely to be liable for aggravated criminal damage as they intended to cause damage to the car and intended to endanger the life of the person travelling in the car.
The teenagers are likely to be liable for basic criminal damage as they were reckless as to whether damage was caused to the car and cannot be liable for aggravated criminal damage as the person was unharmed.
The teenagers are likely to be liable for aggravated criminal damage as they were reckless as to whether damage was caused to the car and intended to endanger life by the damage they caused.
The teenagers are likely to be liable for aggravated criminal damage as they were reckless as to whether damage was caused to the car and it is likely that they were reckless as to whether the damage endangered the life of the person in the car.
The teenagers are likely to be liable for basic criminal damage as they were reckless as to whether damage was caused to the car but had no intention to endanger the life of the person in the car.
The teenagers are likely to be liable for aggravated criminal damage as they were reckless as to whether damage was caused to the car and it is likely that they were reckless as to whether the damage endangered the life of the person in the car.
This is a criminal law question which assesses your knowledge of the offences under the Criminal Damage Act 1971. This question focuses on your knowledge of aggravated criminal damage. For a defendant to be liable for aggravated criminal damage they must cause damage and either intend or be reckless as to causing that damage and intend or be reckless to whether life is endangered. Here, the defendant’s are reckless about causing the damage and reckless as to whether life is endangered. For a defendant to be guilty of aggravated criminal damage there is no requirement that life is actually endangered. The danger to life must be caused by the damage not the thing used to cause the damage, here the two go hand in hand as the brick causes the damage and the nature of the damage with the brick leads to the endangerment to life.
A teacher finishes work on Friday afternoon and goes to the shop nearest her school to buy a bottle of wine. The bottle costs £6 and she pays using a £10 note. On her bus home she realises that the shopkeeper gave her change for a £20 note rather than the £10 note that she paid with. She can’t be bothered to go back to the shop and decides to keep the extra change.
Which of the following sets out the correct position regarding the teacher’s potential liability for theft?
Select one alternative:
The teacher can be liable for theft as the money has been given by mistake and is likely to still belong to the shop.
The teacher cannot be liable for theft as the title in the money passed to her when it was handed over by the shopkeeper.
The teacher cannot be liable for theft as the money belongs to her; it was not her fault that the shopkeeper made a mistake.
The teacher can be liable for theft as she is clearly dishonest by deciding to keep the money.
The teacher cannot be liable for theft as she did not realise that the mistake had been made at the time of the transaction and it would be unreasonable to expect her to return to the shop with the extra change.
The teacher can be liable for theft as the money has been given by mistake and is likely to still belong to the shop.
This is a criminal law question which assesses your knowledge of theft and principle in s.5(4) Theft Act 1968. Theft is committed when a person appropriates property belonging to another dishonestly with the intention to permanently deprive. In cases involving money, the ownership of the money usually transfers when the money changes hands. This would mean that the money no longer belongs to another. If that were the case then money given by mistake and not returned, as in this case, would not come under the Theft Act as it does not belong to another. In order to deal with this issue, s.5(4) Theft Act 1968 states that where property is given to another by mistake and there is an obligation on the recipient to make restoration then the property still belongs to the original person who made the mistake. It means that the property could belong to the defendant and the person who made the mistake, at the same time but fulfils the requirement of belonging to another for the actus reus of theft to be satisfied. Here, it is likely that the teacher had an obligation to return the money when she realised the mistake and therefore formed the actus reus. Arguably, she may be found not guilty as she may not have been found to be dishonest.
A man was having dinner at his neighbour’s house when they began talking about their shared love of a particular series of children’s books. The neighbour showed the man his prized possession, a first edition of the first book in the series which he kept locked away in his study. The man was extremely jealous that the neighbour had this and decided he would plan to take it and swap it with his ordinary version of the book, hoping that the man would not notice.
The man told his neighbour that he had forgotten his reading glasses so that he could return home and get his copy of the book. He later returned to the neighbour’s house and switched the books.
Which of the following best sets out whether the man would be guilty of a burglary under s.9(1)(a) Theft Act 1968?
Select one alternative:
The man could not be liable for burglary under s.9(1)(a) as his original intention when he entered the house was not to steal; he only formed that intention once he was in the house.
The man could not be liable for burglary under s.9(1)(a) as he had no intention to steal the book, he simply intended to switch the book with his own.
The man could be liable for burglary under s.9(1)(a) Theft Act as he entered a property as a trespasser and stole the book by switching it with his.
The man could be liable for burglary under s.9(1)(a) Theft Act as he entered the neighbour’s property as a trespasser with the intention to steal.
The man could not be liable for burglary under s.9(1)(a) as he did not enter the property as a trespasser. His neighbour had invited him in.
The man could be liable for burglary under s.9(1)(a) Theft Act as he entered the neighbour’s property as a trespasser with the intention to steal.
This is a criminal law question which assesses your knowledge of burglary. Section 9(1)(a) states that a defendant would be liable for burglary if they enter the property as a trespasser with the intention to steal or attempt to steal. On his initial entry for dinner, the man is not guilty of an offence as he doesn’t know about the first edition of the book and has no intention to commit an offence. When the man leaves claiming to get his reading glasses but with a plan to swap the books, he returns and enters with the intention to steal the book and swapping it with his own. He doesn’t actually need to have stolen the book to be guilty under s.9(1)(a), he simply has to enter with the intention to steal the book. Although the man was invited in by the neighbour, he was invited for dinner and exceeded that invitation when he entered with the intention to steal. He is therefore a trespasser when he enters the second time knowing that he is exceeding his permission as he plans to steal the neighbours book.
A mother is at the cash machine with her daughter withdrawing money from her account. When she turns around a man demands the money she has withdrawn or threatens to hurt her daughter. The mother hands over the cash and runs away with her daughter.
Which of the following correctly sets out the position regarding the man’s liability for robbery?
Select one alternative:
The man is liable for robbery because he has stolen and at the time of stealing and in order to steal has used force against another person.
The man is not liable for robbery because he has not threatened force against the woman whom he has stolen from.
The man is not liable for robbery because he has not used force in order to steal.
The man is liable for robbery because he has stolen and at the time of stealing and in order to steal he has threatened to use force against another person.
The man is not liable for robbery because he has not threatened force at the time of stealing the money.
The man is liable for robbery because he has stolen and at the time of stealing and in order to steal he has threatened to use force against another person.
This is a criminal law question which assesses your knowledge of robbery. A robbery is committed when a person steals and immediately before or at the time of stealing, and in order to steal, the person uses force on any person or puts or seeks to put any person in fear of then and there being subjected to force. In this question the man steals the money from the woman and threatens force against any person (the daughter) immediately before and in order to steal the money. As the wording of the Act suggests, there is no need for force to actually be used (a threat of force is enough). The force can also be against any person and does not need to be against the person who he steals from.
A mother is at the cash machine with her daughter withdrawing money from her account. When she turns around a man demands the money she has withdrawn or threatens to hurt her daughter. The mother hands over the cash and runs away with her daughter.
Which of the following correctly sets out the position regarding the man’s liability for robbery?
Select one alternative:
The man is liable for robbery because he has stolen and at the time of stealing and in order to steal has used force against another person.
The man is not liable for robbery because he has not threatened force against the woman whom he has stolen from.
The man is not liable for robbery because he has not used force in order to steal.
The man is liable for robbery because he has stolen and at the time of stealing and in order to steal he has threatened to use force against another person.
The man is not liable for robbery because he has not threatened force at the time of stealing the money.
The man is liable for robbery because he has stolen and at the time of stealing and in order to steal he has threatened to use force against another person.
This is a criminal law question which assesses your knowledge of robbery. A robbery is committed when a person steals and immediately before or at the time of stealing, and in order to steal, the person uses force on any person or puts or seeks to put any person in fear of then and there being subjected to force. In this question the man steals the money from the woman and threatens force against any person (the daughter) immediately before and in order to steal the money. As the wording of the Act suggests, there is no need for force to actually be used (a threat of force is enough). The force can also be against any person and does not need to be against the person who he steals from.
A man is applying for a job as a caretaker in a school and the application form asks him to declare whether he has any previous convictions. The man ticks ‘no’ to that question when in fact he has two previous convictions for assault.
Which of the following best sets out the position regarding his criminal liability?
Select one alternative:
The man could be liable for fraud by false representation only.
The man could be liable for fraud by failing to disclose only.
The man could be liable for fraud by failing to disclose and abuse of position.
The man could be liable for fraud by false representation or fraud by failing to disclose.
The man could be liable for fraud by false representation and abuse of position.
The man could be liable for fraud by false representation or fraud by failing to disclose.
This is a criminal law question which assesses your knowledge of the offences under the Fraud Act. In many cases of fraud, an offence may be able to be charged under two or more different sections of the Fraud Act. Here the man has made a representation that he knows to be false by stating that he does not have any previous convictions. He has also failed to disclose the fact that he has previous convictions so may be charged with either of these fraud offences.
A keen artist has painted a landscape which he plans to submit in an upcoming competition taking place in the local village hall and for which there is a cash prize. The artist’s neighbour also plans to enter the competition. The artist invites the neighbour to visit his studio and shows the neighbour the painting. The neighbour knows that his own painting will not be able to compete with this beautiful piece of art; the neighbour is determined to win the competition so decides to go to the village hall the night before the competition and either steal or destroy the artist’s painting (whichever is the easiest) as it is hanging inside.
The neighbour proceeds with his plan and goes to the village hall when it is empty at night with some tools to help him remove or damage the painting. The door is unlocked but, just as the neighbour is about to undo the latch and push open the door, he sees the village policeman cycling along the road. The neighbour panics and runs away.
Which of the following best explains the neighbour’s potential liability for attempted burglary?
Select one alternative:
The neighbour may be liable for attempted burglary as he has taken steps to commit the crime.
The neighbour will not be liable for attempted burglary as he has not gone beyond the point of no return.
The neighbour may be liable for attempted burglary as he has gone beyond the point of no return.
The neighbour will not be liable for attempted burglary as he has not done acts which are more than merely preparatory.
The neighbour may be liable for attempted burglary as he has done acts which are more than merely preparatory.
The neighbour may be liable for attempted burglary as he has done acts which are more than merely preparatory.
This is a criminal law question which assesses your understanding of inchoate offences. In order to be guilty of an attempt the defendant must have done an act, which is more than merely preparatory to the commission of the offence, with the intention of committing the offence. Here, the neighbour has gone to the hall where the painting is with tools that will help him to remove or damage the painting and notices the door is unlocked and is about to open the door when the policeman is passing which stops the neighbour from completing the full offence. By attending with the tools and getting to the point of trying the door it is arguable that he has done acts which are more than merely preparatory. He clearly has the intention to steal or damage the painting and therefore is likely to be liable for attempted burglary.
Your client threw a pint of beer over his ex-girlfriend in a pub. The glass slipped out of your client’s hand, smashed and cut the ex-girlfriend’s wrist. Your client has been charged with assault occasioning actual bodily harm (ABH). Your client maintains that it was never his intention to throw the glass; he merely intended to humiliate his ex-girlfriend by throwing the beer. You meet your client and take time to explain what the prosecution must prove in terms of his intention.
Which of the following best represents the mens rea for ABH?
Select one alternative:
It is necessary to demonstrate the defendant had the mens rea for either an assault or a battery.
It is necessary to demonstrate the defendant had the mens rea for assault or battery and the mens rea for ABH.
It is necessary to demonstrate the defendant was reckless as to whether he committed ABH.
It is necessary to demonstrate the defendant intended to commit ABH.
It is necessary to demonstrate the defendant intended or foresaw some physical harm
It is necessary to demonstrate the defendant had the mens rea for either an assault or a battery.
This is a criminal law question which assesses your knowledge of the mens rea for s.47 Offences Against the Person Act 1861. The mens rea for s.47 OAPA is the intention or recklessness to commit assault or battery. There is no mens rea required for the ultimate ABH that is caused, this means the defendant does not need to intend or be reckless about causing ABH.
A client has been charged with assault occasioning actual bodily harm. His instructions are that he saw a woman being chased by a man. The client tripped the man who fell over, spraining his wrist badly. It transpires that the man was a store detective and the woman was a shoplifter whom the store detective was chasing.
Which one of the following is the best advice to give to the client about whether he can rely on self-defence?
Select one alternative:
He can rely on self-defence because the mistake he made was irrelevant.
He cannot rely on self-defence because the mistake relates to his mens rea.
He can rely on self-defence because the victim impliedly consented to his actions.
He can rely on self-defence because his mistake was reasonable.
He can rely on self-defence because his mistake was genuine.
He can rely on self-defence because his mistake was genuine.
This is a criminal law question which assesses your knowledge of self-defence. A defendant may rely on self-defence where he believes that the use of force is necessary in order to defend himself or another. The defendant can still rely on self-defence if he was mistaken in his belief that the force was necessary as long as that belief was genuinely held.
A wife is having a meal with her friends in a restaurant when she sees her husband sitting at the bar with another woman. She believes that they are having an affair and goes over to confront them; she raises her fist to hit the woman who leans back to avoid the punch and slips off the bar stool, hitting her head on the bar. The wife sees the woman lying on the floor bleeding but walks away. The woman dies as a result of the injuries sustained to her head.
Could the wife be liable for involuntary manslaughter?
Select one alternative:
No, she cannot be guilty of unlawful act manslaughter as she has not committed a criminal offence. What happened to the woman was an accident.
No, she cannot be guilty of gross negligence manslaughter as she did not owe a duty of care to the woman and she cannot be guilty of unlawful act manslaughter as she has not committed a criminal offence, as the death was an accident.
Yes, she could be guilty of gross negligence manslaughter as she left the woman bleeding on the floor.
Yes, she could be guilty of unlawful act manslaughter as she has committed the offence of battery which has caused the woman to die.
Yes, she could be guilty of unlawful act manslaughter as she has committed the offence of assault which has caused the woman to die.
Yes, she could be guilty of unlawful act manslaughter as she has committed the offence of assault which has caused the woman to die.
This is a criminal law question which assesses your knowledge of involuntary manslaughter. The two types of involuntary manslaughter are unlawful act manslaughter and gross negligence manslaughter. Unlawful act manslaughter is committed when a person carries out an unlawful act and this unlawful act is dangerous and causes the death of the victim. The unlawful act that has been committed here is assault. The wife intentionally or recklessly causes the woman to apprehend immediately unlawful violence by raising her fist to her. She doesn’t actually hit the woman so the unlawful act cannot be battery. The unlawful act is likely to be considered as dangerous as she raises her fist at the woman who was sitting on a bar stool and the jury are likely to find that this would have exposed the victim to some harm. The unlawful act caused the woman to fall and hit her head which resulted in her death. As the wife has committed a positive act that is a criminal offence, she is likely to be charged with unlawful act manslaughter. She would not be charged with gross negligence manslaughter as she is unlikely to owe a duty to the woman.
A man is out drinking with a group of friends when another man knocks into him and causes him to spill his drink. The man is angry and punches the victim for spilling his drink; the punch causes the victim to suffer a fractured skull. The following day, the man is embarrassed as he would not normally have reacted like this; he thinks his behaviour was attributable to the fact that he had been drinking.
The man is charged with grievous bodily harm (GBH) under section 18 of the Offences Against the Person Act 1861; the man seeks to rely on intoxication as a defence.
Which of the following best describes whether the man is likely to be able to rely on intoxication as a defence in these circumstances?
Select one alternative:
The man would not be able to rely on intoxication as this is a basic intent offence and intoxication is never a defence for basic intent offences.
The man would be able to rely on intoxication as this is a specific intent offence but would need to show that his intoxication meant that he was unable to form the mens rea for GBH.
The man would not be able to rely on intoxication as this is a basic intent offence and getting that drunk in the first place is reckless and therefore cannot be used as a defence.
The man would be able to rely on intoxication as this is a specific intent offence and he only formed the mens rea for GBH because he was drunk.
The man would be able to rely on intoxication as this is a specific intent offence and his intoxication automatically means that he was unable to form the mens rea for GBH.
The man would be able to rely on intoxication as this is a specific intent offence but would need to show that his intoxication meant that he was unable to form the mens rea for GBH.
This is a criminal law question which assesses your understanding of the defence of intoxication. A defendant may be able to rely on intoxication as a defence where they are charged with a specific intent offence (an offence where intention is the only form of mens rea) which is the case here with s.18 OAPA 1861. The defendant must have been unable to form the mens rea for that offence due to his intoxication which may be the case here. It is not enough for the defendant to say that they would not have done the act if they had been sober (a drunken intent is still an intent, R v Kingston), the intoxication must mean that they were unable to form the mens rea.
Your client has been charged with murder as a secondary party on the basis that she counselled the offence. Your client’s friend was going through a very acrimonious divorce from her husband and had made up her mind to kill him. The friend told your client what she had decided to do. The client said to her friend, ‘That’s absolutely the right thing to do. He deserves it after everything he has put you through.’ The friend went ahead and killed her husband.
Has your client fulfilled the actus reus of murder as a secondary party?
Select one alternative:
No because the consensus was reached after the friend had made her mind up to kill her husband.
No because there was no causal link between her encouragement and the killing of her friend’s husband.
Yes because she encouraged her friend to kill her husband.
Yes because there was a causal link between her encouragement and the killing of her friend’s husband.
Yes because she and her friend were engaged in a joint enterprise.
Yes because she encouraged her friend to kill her husband.
This is a criminal law question which assesses your understanding of secondary liability or parties to a crime. The friend has encouraged the client to commit the offence. The secondary party (client) is likely to be guilty of abetting the offence. The actus reus is for the defendant to encourage or assist the commission of the offence. Here, there is encouragement to commit the offence knowing that the wife intended to carry out the offence.
summary only offences
simple assault
battery
max sentence: 6 months
simple criminal damage (<5000 pounds)
either way offences
x7
Assault occasioning ABH (s47): 5 years
Wounding or inflicting GBH (s20): 5 years
Theft: 7 years
Fraud: 10 years
Burglary
- 10 years (commercial)
- 14 years (domestic)
Simple criminal damage > 5000 pounds: max sentence?
Simple arson: Life
indictable only
max sentence: life
x9
Aggravated criminal damage
Aggravated arson
Murder: life MANDATORY
Voluntary manslaughter: (only charged following defence) !!
Unlawful act manslaughter
Gross negligence manslaughter
Wounding or causing GBH with intent (s18)
Robbery
Aggravated burglary
Crime:
society’s interpretation between right and wrong
Purpose of sentencing:
punishing/reforming offenders, reducing crime, protecting public
How do you establish criminal liability?
IDEA
Identify
The defendant
The defendant’s act or omission
The offence
Define the law — AR and MR of the offence
Explain the law with the help of statute/case law
Apply the law to the facts
Difference between civil and criminal law: two distinct areas!
Same action can be a civil wrong (eg tort) and criminal offence
Eg if Fred punches Jim can be sued for battery and tort for trespass of person
Crime: public wrong (any member of the public could sue Fred but usually CPS)
Civil wrong: private matter to be resolved between parties (only Jim could sue Fred)
Standard of proof
Burden of proof on prosecution is beyond reasonable doubt: make sure of it
Even for most defences eg self-D only requirement on defendant is to raise possibility — then up to prosecution to prove that self-D does not apply!
Defence: rarely bears the burden
Diminished responsibility in murder
Standard: lower — balance of probabilities
criminal justice system
Innocent until proven guilty + Entitled to fair trial + Burden on prosecution
What type of offences are there?
Classifications are only relevant to adults
With youths, the potential sentence determines where the trial is held
Summary only: least serious (eg assault/criminal damage subject to value) only in mags and subject to max that mags has power to impose eg 5000 fine and/or 6 months imprisonment or 12 months for consecutive sentences on two or more offences triable either way
Either way: either mags or crown (aka indictable offences: ABH, theft)
initial decision by mags but defendant can elect
If mags power sufficient can offer summary trial but D can choose trial by jury
If mags power not sufficient then sends to crown court then D can no longer choose
Indictable only: most serious only tried by a judge and jury in crown court (murder, manslaughter, GBH with intent, robbery)
Where do the Police and CPS fit in?
Collective resources of society
Police investigate
CPS prosecute
Criminal liability:
AR + MR + absence of valid defence
AR x4
Conduct offences e.g. appropriates (s1(1) Theft Act 1968)
Circumstances e.g. belonging to another (s1(1) Theft Act 1968)
Result offences
Omissions
Result offences
eg murder: causing death of a human being
Factual causation — White: but for test
Legal causation
Pagett: operating and substantial (Hughes —more than minimal) cause
NAI: D will not be liable if there is a break in the chain of causation
Medical negligence (Smith/Cheshire): original wound is merely part of history or medical treatment is so independent of D’s act and so potent in causing death that D’s acts are insignificant
Acts of 3rd party (Pagett): free, deliberate and informed
Acts of the victim: not foreseeable to the reasonable person and not within the range of reasonable responses from the victim (baring in mind any characteristics of victim visible to the reasonable person and victim might act in the agony of the moment)
‘Fright and flight’ cases (Roberts/Williams and Davies)
Refusing medical treatment (Holland) — no break if D’s actions still operating on V
Suicide (Wallace) — no
Thin skull rule (Hayward) — belief or pre-existing condition does not break
Omissions
General rule: D cannot be liable for failure to act (R v Smith (William))
However x6, a legal duty to act may arise from a
Statutory duty (Road Traffic Act 1988, s6(4))
Special relationship: spouse (Hood), parents (Gibbons) and Proctor)
Voluntary assumption of a duty of care (e.g. Stone and Dobinson)
Contractual duty (Pittwood)
Creating a dangerous situation (Miller)
Public office (Dytham)
MR
Intention: direct (Moloney) or oblique (Woolin)
Judge: no guidance as to meaning, should be left to jury
Direct: consequence is what D subjectively aims to happen
Oblique: where consequence is not D’s purpose but side effect which D accepts as inevitable/certain accompaniment (does not have to be desired, regret possible)
Juries cannot find oblique intent unless death or injury were a certainty and D appreciate it
Certainty of death/injury: objective test
D appreciate it: subjective test
Oblique intent is not intention but rather evidence of it
Motive is evidence of intention but not intention itself (chandler)
Transferred malice (Latimer) + Limitations
MR for intended harm can be transferred to actual harm
As long as MR for the offences are the same!
Recklessness (R v G)
D does not intend to cause harmful result but sees risk of harm and goes ahead anyway
Risk of harm must be unjustifiable
If justifiable (eg social utility/value against likelihood /amount of harm)
Intoxication!
Offences that depart from general rule: no MR needed!
Absolute liability: only need AR + absence of defence (aka state of affairs eg Winzar)
Strict liability: no proof of MR for at least one aspect of AR eg road traffic offence (+ food reg)
Coincide of AR and MR required for liability
Guilty act and guilty mind at the same time
But continuing act theory: as long as MR takes place at some point during AR (Fagan)
But one transaction principle: at some point during a series of acts
Valid and complete defence: self-defence
Partial: diminished R and loss of control only for murder and if successful = manslaughter (not acquittal!!)
Murder and manslaughter
identifying the relevant fatal offence
Has D unlawfully killed another human being?
No: D is not liable
Yes: did D do so with intention to kill or cause GBH?
Yes: can D rely on the partial defence of loss of control of diminished R?
No: D is liable for murder
Yes: D is liable for voluntary manslaughter
No: does D fulfil the elements of unlawful act manslaughter or gross negligent manslaughter?
Yes: D liable for involuntary manslaughter
No: is not liable for involuntary manslaughter
Comparison: murder vs VM vs IM
AR — All share common AR: unlawfully killed human being under the king’s peace
MR
Murder + VM: MR intention to kill or cause intention to cause GBH
IM: MR no intention to kill or cause GBH
Defence
Murder: absence of a valid defence: self-defence
Partial/special defence: loss of control or diminished R
VM — Two partial and special defences to murder
DR: D x4 BoP (AMF, Medic, understand/control/AMF=explain)
LoC: P not x 1/3 BRD (lose self-C? A/F trigger? normal person?)
Diminished R: x4 — defence — balance of probabilities (yes to all!)
Does D have abnormality of mental function (AMF)
Does AMF arise from medical condition
Does AMF impair D’s ability to understand/control conduct?
Does AMF provide an explanation for D’s conduct?
Loss of control: x3 prosecution must disprove one of 3 elements beyond reasonable doubt
Did D lose self control?
Due to the fear and/or anger qualifying trigger
Might a normal person have acted in the same or similar way to the defendant?
IM — Two types: unlawful act and gross negligence
Unlawful act manslaughter: liable if yes to all 4 (intentional; unlawful; dangerous; cause)
Did D do an intentional act?
Was the act unlawful?
Was the unlawful act dangerous?
Did the unlawful act cause the death of V?
Gross negligence manslaughter: liable if yes to all 5 (duty,breach, cause, risk, gross)
Did D have a duty of care?
Did D breach that duty of care?
Did the breach cause death?
Was there a risk of death?
Was the breach of duty so bad so as to amount to gross negligence?
Summary: murder vs VM vs IM
Murder: unlawful killing of another human being under the King’s peace with intention to kill or cause GBH (MR)
VM: D has fulfilled all of the AR and MR elements of murder but kills under a loss of control or diminished R
IM: D has fulfilled the AR of murder and either elements of unlawful act manslaughter or gross negligence manslaughter
Non-fatal offences
assault and battery are common law offences: defined in case law
s47, s20, s18 are statutory offences: defined in OAPA 1861
Consent (or belief to consent) can make act lawful for assault or battery
S47, s20, s18: consent not a defence where D intends to cause ABH or more unless public exception applies
Medical treatment
Sports
Horseplay
Tattoo
Personal adornment
Sexual gratification
Accidental infliction of harm
S18 only one w/o reckless intent
Assault
AR
Causing V to apprehend immediate and unlawful personal violence
–victim does not need to be afraid!
–Cannot be in future
–Has to be physical
–Consent or honest belief means lawful
MR
Intention or recklessness as to causing C to apprehend immediate and unlawful personal violence
Eg
threats of violence but there is no actual touching
Words or physical movements from D (eg raising fist)
Silence in some cases”
Battery
AR
Applying unlawful force to another
– no need for injury
–If consent or D genuinely believed consent then not unlawful
MR
Applying unlawful force to another
no need for injury
If consent or D genuinely believed consent then not unlawful
eg
mere touch or slap
An unwanted kiss
Scratches, minor bruising or superficial cuts
s47 OAPA 1861
AR
Assault = assault or battery
Occasioning (causation)
ABH: physical or psychiatric (needs to be more than fear, distress or panic)
MR
MR of assault or battery (no need for MR for ABH)
eg
temporary loss of sensory function (sight/hearing…)
Temporary loss of consciousness
Extensive bruising
Cutting hair
Minor fractures
Psychiatric injury more than trivial
s20 OAPA 1861
AR
Wound or
infliction of GBH = serious harm (psychiatric + totality of injuries eg baby with cuts/bruises)
MR
D must intend or be reckless as to the cause of some harm
Eg
GBH
– permanent loss of sensory function
– Permanent disability
– Broken bones
–Substantial blood loss
Wound: breaking both alters of skin (dermis an epidermis)
s18 OAPA 1861
AR
Wound or
GBH = serious harm (psychiatric + totality of injuries eg baby with cuts/bruises)
MR
D must intend to cause GBH (regardless of whether wounded or caused GBH, incorrect to say that D intended to cause wound)
eg (same as s20)
GBH
– permanent loss of sensory function
– Permanent disability
– Broken bones
–Substantial blood loss
Wound: breaking both alters of skin (dermis an epidermis)
Property offences
(basic/aggravated) criminal damage/arson
theft
robbery
burglary s9(1)(a)/(b)
aggravated burglary
fraud (x3)
Basic criminal damage (or basic arson)
AR x4 : destory/damage by fire + property + belonging to another + w/o lawful excuse
Destroy or damage (by fire)
question of fact/degree
can be temporary/permanent physical harm
can be temporary/permanent impairment to value/usefulness
Property:
anything of a tangible nature whether real or personal
Including money
Issue regarding wild creatures and plants
Belonging to another
Without lawful excuse — aside from general defences x2:
1) Where D believes that owner would have consented to the damage – Subjective element
2) Where D acts to protect their or another’s property –Subjective and objective elements
MR x4: intention or reckless as to the destruction or damage of property belong to another (by fire)
Aggravated criminal damage (or aggravated arson)
AR
Destroy or damage (by fire)
Property: can belong to D or another
MR x2
1) Intention or recklessness as to destruction or damage of property (by fire) AND
2) Intention or recklessness as to the endangerment of life by the damage or destruction (by fire)
No life need actually be endangered
Endangerment of life must arise from damaged property and not the means of damaging it
Lawful excuses do not apply to aggravated damage/arson
Theft
AR: appropriate property belonging to another
MR: dishonest (but x3 and casino x2) ITPD
Appropriation: assume any one right of the owner (sell, lend, damage)
Can appropriate with consent
Can appropriate valid gift
Can have a later appropriate: if honestly at first and then dishonestly
Property: money, real property, things in action, intangible
all property can be stolen but exceptions in relation to land, things growing wild, wild creatures
Belonging to another
Can steal from someone other than legal owner
Someone having possession or control of property
Someone having proprietary right or interest
Property is not easily abandoned in law
If lost or discarded by original owner, it can still belong to another re theft
If D has obligation to deal with property in a particular way
Or if D receives property by another’s mistake
MR: dishonestly ITPD
Dishonesty
Not dishonest exceptions x3
If D appropriates in the belief that D has a right in law to deprive the other of it
D would have the other’s consent if the other knew
Person to who property belongs cannot be discovered taking reasonable steps
Can still be dishonest even if willing (??)
If any of 3 exceptions don’t apply then casino test x2 questions
What was D’s knowledge and belief as to the facts
Given knowledge/belief was D dishonest by standards of ordinary decent people
Intention to permanently deprive
Ordinary meaning but permanent deprivation is not required
Treating it in a manner that risks its lost
Rendering property useless
Robbery, s8 Theft Act 1968
AR: theft + (threat) force on any person +timing!
AR of theft: appropriation of property belonging to another
Force x1/3
Use of force
–Does not require violence
–Can be applied through property
Putting any person in fear of being then and there subjected to force – Apprehend rather than fear
Seeking to put any person in fear of being then and there subjected to force
On any person
Use or threat of force immediately before or at the time of stealing – Assisted by the principle that appropriation is a continuing act and the jury decides when it has come to an end
MR
MR of theft: if there is not theft, there is no robbery!
Intention to use force in order to steal: rather than stealing as an afterthought to the force
Burglary — s9(1)(a)
AR: D enters (part of) building as a tresspasser
D enters
Entry is a question of fact for the jury
Any part of a person’s body is sufficient
A building or part of a building
Includes inhabited vehicles or vessels whether the person is living there or not
Structure of a considerable size and intended to be permanent or at least endure for considerable time
Parts includes areas like behind the till of a shop
As a trespasser
Without consent or in excess of consent D has been given
MR: intent/reckless as to trespasser + 1/3 (in/part building: steal, GBH, damage)
Knowing or being reckless as to entry as a trespasser
–D does not need to know in law that they are a trespasser
–Just know or be reckless as to the facts that make them one
Upon entry D must x1/3
–Intend to steal from the building or part of the building; and/or
–Intend to inflict GBH on any person in the building or part of the building; and or
–Intend unlawfully to damage the building or anything in the building or part
Burglary — s9(1)(b)
AR
D having entered – Point in time is different
A building or part of a building
As a trespasser
MR
Knowing or being reckless as to entry as a trespasser
D did one of the following x1/4 (no criminal damage!!)
– Stole something from the building or part of the building
– Attempted to steal something from the building
– Inflicted GBH on any person
–Attempted to inflict GBH on any person
Aggravated burglary
s9(1)(a) + article + D has the article with them when entering the building
S9(1)(b) + article + D must have the article with them when committing the (attempted) theft or (attempted) GBH
Article x4: (imitation) firearm; explosive; weapon of offence (WO)
WO: any article made or adapted for use for causing injury to or incapacitating a person, or intended by the person having it with him for such use’
MR: as long as D knew that they had the article with them at one point then MR continues (even if they forgot)
Fraud:
only one offence of fraud that can be committed in 3 ways
- false representation
- failure to disclose
- abuse of position
False representation
AR: false representation
Fact, law or state of mind
Can be expressed or implied
Must be untrue of misleading
Can arise in certain circumstances of overcharging
MR: dishonest + gain/loss
Dishonesty:
casino test
The 3 exceptions under theft act for dishonesty do not apply
Intention to make a gain or cause a loss
Actual gain or loss is not required
A gain can be for themselves or someone else
Loss can be risk of loss
Money, real or personal property: things in action or other intangible property
Loss can be temporary or permanent
MR for false statement: D must know or might be untrue/misleading
Failure to disclose (ie lying by omission)
AR
Existence of a legal duty to disclose
Statute
Terms of contract
Fiduciary relationship
Failure to disclose information to another person
Matter of fact
MR
Dishonesty
Intention to make a gain or cause a loss
Abuse of position
AR
Occupy a position
D looks after V financial well being
Determined on case by case basis
Professional, fiduciary, long term business R or within family or voluntary work
Abuse that position
Use it incorrectly or
Put it to improper use
MR
Dishonesty
Intention to make a gain or cause a loss
General defences
Intoxication
(negate MR or legal principle/defence)
General defence: available to almost any crime
Two forms
1) Negate MR
2) An influencing factor on another legal principle/defence
Negate MR
Voluntary or involuntary intoxication
In all cases of involuntary intoxication, available if D did not form MR due to intoxication
Voluntary then next question (dangerous drug?)
Dangerous or non dangerous drug
Voluntary
Non dangerous: may be available if D was not able to form due to intoxication
Dangerous: specific or basic intent?
Specific or basic intent
Voluntary + dangerous drug
Specific: offence which requires intention as MR, available if D did not or was not able to form MR due to intoxication
Basic (intention or reckless): would D have formed the MR if they had been sober? Usually yes so unlikely that intoxication can be used as a defence
Specific crimes: attempts, murder, s18, theft, robbery, s9(1)(a) burglary, s(9(1)(b) burglary (stealing or attempted steal or attempting to cause GBH)
Basic crimes: unlawful act manslaughter, gross negligence manslaughter, s20, s47, battery, assault, (aggravated) criminal damage, s9(1)(b) causing GBH
Legal principle/defence x5
Self-D
Consent
Loss of control
Diminished R
Statutory defences
Self-defence
trigger (subjective): necessary use of force + response (objective): reasonable level of force
Complete defence
Statutory or common law defence
Trigger (subjective) + response (objective)
Trigger (subjective test)
D honestly believe that the use of force was necessary in circumstances known to them
Judged on the facts as D subjectively believed them to be
Mistaken belief is due to voluntary intoxication of D, then D cannot rely on mistake
No requirement to retreat
Anticipatory self-defence
Self-defence even by the antagonist (case law!)
Force against innocent third party (rare/limited) to prevent another person from committing an offence
Response (objective)
After it can be established that D believed use of force can be necessary
Level of force used was objectively reasonable
Level of force depends on household v non-householder case
Householder
Was the level of force used grossly disproportionate? If so, no defence
If not — Was the use of force reasonable? The use of disproportionate force which is not grossly disproportionate may or may not be reasonable
Non-householder
Was the degree of force objectively reasonable in the circumstances?
In the circumstances as D subjectively believes them to be
Belief —genuinely held
s76(7) CJIA 2008
Householder v non-householder
Householder
A building or part of a building that is a dwelling (includes flat above a shop)
Part dwelling/part business
D is not a trespasser
V is or D believe V is a trespasser
Non-householder: anywhere other than a dwelling
Consent (general rules and exceptions)
V’s consent can prevent D liability
Eg for property offences: statutory defences for D who believes the owner consents
Two elements
Where V consented
Where D believes V consented
Non-fatal offences
General rule: defence only available for assault and battery
Available for ABH + if D:
Only intended assault or battery; or
Did not see the risk of inflicting ABH +
Exceptions to general rule
Medical treatment
Sport
Horseplay
Tattooing, personal adornment
Sexual gratification
Accidental infliction of harm
Is the offence more than assault/battery?
No: consent available if
V consented; or
D honestly believed that V was consenting
Yes: did D intend to cause ABH +?
Yes: consent is not available unless any of exceptions apply
No & did not see risk: consent is available, Meachen
No & reckless: no guidance from court but if prohibited harm then check to see if one of the exceptions apply
Attempts
inchoate offences: an act that is more than merely preparatory to the commission of an offence
where D had embarked on the crime proper
Parties to a crime
Principal offender
Person who, with appropriate MR commits AR
Always possible to have more than one
Secondary parties — those who x5
Aid
Abet: principal knowledge + failure to prevent
Counsel: consensus
Procure: causation
Be a party to join enterprise
Parties to a crime
Principal offender
Person who, with appropriate MR commits AR
Always possible to have more than one
Secondary parties — those who x5
Aid
Abet
Counsel
Procure
Be a party to join enterprise
Accessorial liability
AR: any of the following x5
To aid P in committing offence
To abet P in committing offence
To counsel P in committing offence
To procure P to commit offence
To be a party to a joint enterprise with P regarding one offence and during the enterprise P commit a second offence
MR
Intention to assist or encourage the principal’s conduct
If crime require MR, an intention that the principle will do the AR with that MR (procuring as exception)
Knowledge of existing facts or circumstances necessary for the offence to be criminal
Aiding — AR
Require the accessory to give help, support or assistance to the principal offender in carrying out principal offence
No causation required
No consensus required with the principal offender
Abetting — AR
To incite, instigate or encourage
It mens encouraging at the time the offence is being committed
No causal link required
!! The principal must know they are being abetted
Mere presence may not be enough
!! Failing to prevent an offence may = abetting
Counselling — AR
Giving advice or encouragement before the commission of the offence
No causal link required between the counselling and the offence
!! Consensus — must be contact between the parties and a connection between the counselling and the offence
Procuring — AR
To produce by endeavour or endeavour to cause
No need for consensus
!! There must be a causal link between D’s act and the commission of the offence
Secondary party action caused principal to commit offence
parties to a crime – withdrawal
A secondary party may change their mind and want to withdraw their help or encouragement
General rule: not enough to just have a change of mind
The relevant time of MR is at the time of the act of assistance, not at the time the principal commits the crime
Withdrawal must take place before the act of assistance
If D (secondary party) has supplied the principal with the means of committing the crime and has given assistance — less likely to be able to demonstrate withdrawal
Conviction of secondary party and acquittal of principal
Rule: if it cannot be proved which two people commit the crime, both must be acquitted
If it can be proved that the one who did not commit the crime as the principal was a secondary party, then both can be convicted (???)
Conviction of a secondary party and acquittal of the principal is possible
Or where principal successful runs a defence or insufficient evidence
As long as it is clear that someone has committed the offence to which D was a secondary party, D can be convicted
parties to a crime + attempt
It is not an offence to attempt to aid, abet, counsel or procure an offence
A person cannot be found guilty of attempting to aid, abet, counsel, procure an offender
It is an offence to aid, abet, counsel or procure a principal offender who attempts to commit an offence (R v Hui Ching)
Can be found guilty of aiding an offender who attempted to commit an offence
joint enterprise
Where two or more people are committing a crime together
D1 and D2 have a common intention to commit crime A. D1, as an incident of committing crime A, commits crime B.
Crime B must be committed in the course of be incidental to crime A
No need to show that D2 aided or encourage the offence. It is enough that D2 was a party to the joint enterprise and had the relevant MR for an accessory.
A party cannot be liable for any offences committed before they join the enterprise
MR
An intention to assist or encourage the principal’s conduct
If the crime requires MR, an intention that the principal will do AR with that MR (procuring appears as an exception)
Knowledge of existing facts of circumstances necessary for the offence to be criminal
