CRIMINAL Flashcards

Question

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

Answer 1

Dishonestly, intention of permanently depriving This is the correct answer. These mens rea elements all have specific meanings defined in statute and case law.

Answer 2

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.

Answer 3

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.

Answer 4

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.

Answer 5

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.

Answer 6

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.

Answer 7

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.

Answer 8

Coincidence Correct. The courts have interpreted this principle widely using the continuing act theory and the one transaction principle.

Answer 9

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.

Answer 10

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.

Answer 11

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.

Answer 12

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.

Answer 13

Protection of yourself, another and/ or property Correct. If successful the defendant will be acquitted.

Answer 14

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.

Answer 15

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.

Answer 16

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.

Answer 17

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.

Answer 18

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.

Answer 19

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.

Answer 20

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.

Answer 21

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.

Answer 22

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.

Answer 23

Voluntary manslaughter Correct, this reflects the position in section 2(3) Homicide Act 1957 (as amended).

Answer 24

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.

Answer 25

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.

Answer 26

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.

Answer 27

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.

Answer 28

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.

Answer 29

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.

Answer 30

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.

Answer 31

When the thing said/ done constituted sexual infidelity Correct. This reflects the position in section 55(6)(c) CJA 2009 and Clinton.

Answer 32

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?

Answer 33

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.

Answer 34

When D is voluntarily intoxicated and has no abnormality of mental functioning Correct. This represents the position in Dowds.

Answer 35

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.

Answer 36

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.

Answer 37

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.

Answer 38

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.

Answer 39

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.

Answer 40

Damage Correct. Damage is defined in case law but property and belonging to another are defined in sections 10(1) and 10(2) respectively.

Answer 41

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.

Answer 42

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).

Answer 43

Basic criminal damage and basic arson Correct. This is set out in section 5(1) Criminal Damage Act 1971.

Answer 44

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.

Answer 45

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.

Answer 46

Belonging to another Correct. Property can belong to another or the defendant for the purposes of aggravated criminal damage or aggravated arson.

Answer 47

No Correct. The lawful excuse defences do not apply to aggravated criminal damage or aggravated arson, s 5(1) states this.

Answer 48

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.

Answer 49

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).

Answer 50

Yes | Correct- this reflects the position in R v Gomez.

Answer 51

Yes | Correct- this reflects the position in R v Hinks.

Answer 52

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.

Answer 53

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.

Answer 54

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).

Answer 55

Section 5(3) Correct. Here the extra money is given by Sally to Helen for a particular purpose, to tip the driver.

Answer 56

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.

Answer 57

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.

Answer 58

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.

Answer 59

Subjective- the defendant’s belief must be genuinely held Correct. This was confirmed by the case of R v Robinson.

Answer 60

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.

Answer 61

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.

Answer 62

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.

Answer 63

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.

Answer 64

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.

Answer 65

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.

Answer 66

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.

Answer 67

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.

Answer 68

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.

Answer 69

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.

Answer 70

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.

Answer 71

Correct. This relationship would fit into the example given by the Law Commission of ‘voluntary work.’

Answer 72

No - Correct. The wording of s 8(1) Theft Act 1968 and the case of R v Robinson makes that clear.

Answer 73

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.

Answer 74

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.

Answer 75

Criminal damage Correct. This reflects the wording of s 9(1)(b) and s 9(2) Theft Act 1968.

Answer 76

Upon entry with intention to commit the ulterior offence Correct. There is no need for the defendant actually to commit the ulterior offence.

Answer 77

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.

Answer 78

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.

Answer 79

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.

Answer 80

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.

Answer 81

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.

Answer 82

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.

Answer 83

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.

Answer 84

Intention or recklessness as to causing some harm Correct. This was confirmed in R v Savage, Parmenter.

Answer 85

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.

Answer 86

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.

Answer 87

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.

Answer 88

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.

Answer 89

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.

Answer 90

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.

Answer 91

To protect against psychological harm Correct. Self-defence cannot be relied on in these circumstances, see R v Bullerton.

Answer 92

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).

Answer 93

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.

Answer 94

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.

Answer 95

Protecting themselves or another Correct. This reflects the Criminal Justice and Immigration Act 2008, s 76(8A)(a).

Answer 96

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.

Answer 97

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.

Answer 98

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.

Answer 99

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.

Answer 100

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.

Answer 101

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.

Answer 102

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.

Answer 103

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.

Answer 104

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.

Answer 105

Unfinished This is the correct answer. Inchoate offences are unfinished or incomplete offences. Attempted is a type of inchoate offence.

Answer 106

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.

Answer 107

Intention to kill This is the correct answer. See the case of Whybrow for further details.

Answer 108

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.

Answer 109

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.

Answer 110

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.

Answer 111

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.

Answer 112

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.

Answer 113

Intention or recklessness as to causing some harm Correct. This was confirmed in R v Savage, Parmenter.

Answer 114

Intention to cause grievous bodily harm Correct. Grievous bodily harm means serious harm, Saunders.

Answer 115

Intention or recklessness as to causing some harm Correct. Intention to cause serious harm is the mens rea of s 18 OAPA 1861.

Answer 116

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.

Answer 117

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.

Answer 118

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. **

Answer 119

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.

Answer 120

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.

Answer 121

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.

Answer 122

To procure Correct Correct. There must be a causal link between D’s act and the commission of the offence.

Answer 123

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.

Answer 124

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.

Answer 125

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.

Answer 126

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.

Answer 127

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.

Answer 128

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.

Answer 129

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.

Answer 130

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.

Answer 131

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.

Answer 132

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.

Answer 133

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. **

Answer 134

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.

Answer 135

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.

Answer 136

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.

Answer 137

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.

Answer 138

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.

Answer 139

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.

Answer 140

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.

Answer 141

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.

Answer 142

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.

Answer 143

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.

Answer 144

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.

Answer 145

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. incorrect 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.

Answer 146

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.

Answer 147

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).

Answer 148

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.

Answer 149

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.

Answer 150

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. incorrect 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.

Answer 151

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. incorrect 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.

Answer 152

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.

Answer 153

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. incorrect 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.

Answer 154

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. incorrect 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.

Answer 155

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.

Answer 156

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.

Answer 157

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.

Answer 158

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.

Answer 159

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.

Answer 160

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.

Answer 161

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.

Answer 162

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.

Answer 163

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.

Answer 164

Intention Correct, this is a principle of mens rea as it refers to a state of mind rather than an action.

Answer 165

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.

Answer 166

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.

Answer 167

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.

Answer 168

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.

Answer 169

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.

Answer 170

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.

Answer 171

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.

Answer 172

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.

Answer 173

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.

Answer 174

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.

Answer 175

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.

Answer 176

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.

Answer 177

Immediately before or at the time of the theft Correct. This is as stated in s 8(1) Theft Act 1968.

Answer 178

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.

Answer 179

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

Answer 180

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.

Answer 181

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

Answer 182

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).

Answer 183

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.

Answer 184

Intention or recklessness as to destroying or damaging property and intention or recklessness as to thereby endangering the life of another

Answer 185

Immediately before or at the time of the theft Correct. This is as stated in s 8(1) Theft Act 1968.

Answer 186

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.

Answer 187

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.

Answer 188

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.

Answer 189

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.

Answer 190

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.

Answer 191

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.

Answer 192

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.

Answer 193

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.

Answer 194

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).

Answer 195

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.

Answer 196

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.

Answer 197

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.

Answer 198

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.

Answer 199

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.

Answer 200

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.

Answer 201

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.

Answer 202

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?

Answer 203

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.

Answer 204

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.

Answer 205

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.

Answer 206

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.

Answer 207

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.

Answer 208

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).

Answer 209

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.

Answer 210

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.

Answer 211

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.

Answer 212

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.

Answer 213

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.

Answer 214

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.

Answer 215

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.

Answer 216

No criminal liability Correct. The solider has not fulfilled one of the actus reus elements of murder- to ‘unlawfully’ kill another human being.

Answer 217

Murder Correct. On the face of it, it looks like the ex-employee has fulfilled the actus reus and mens rea of murder.

Answer 218

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.

Answer 219

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.

Answer 220

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.

Answer 221

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.

Answer 222

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.

Answer 223

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.

Answer 224

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.

Answer 225

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.

Answer 226

This is aggravated burglary. He has with him a weapon of offence. A length of rope is a weapon of offence by virtue of s 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 is s 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.

Answer 227

This is aggravated burglary. | An airgun counts as a firearm by virtue of s 10(1)(a) – “firearm” includes an airgun.

Answer 228

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.

Answer 229

This is aggravated burglary. The bottle is a weapon of offence by virtue of s 10(1)(b). Felix has both adapted it for use for causing injury to a person and intended it for such use.

Answer 230

This is aggravated burglary. | A pepper spray is a weapon of offence by virtue of s 10(1)(b) as it is an article made for incapacitating a person.

Answer 231

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-read s 10(1)(b) carefully if you assumed this was a weapon of offence.

Answer 232

This is probably aggravated burglary. The post will have become a weapon of offence by virtue of s 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.

Answer 233

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.

Answer 234

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.

Answer 235

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.

Answer 236

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.

Answer 237

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 of Pagett along 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 of Benge, 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 of Pagett). 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 the Smith case— 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 from Cheshire. D is now much easier to discount in light of the principles of Benge, Smith and Cheshire. 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 of R v Malcherek & Steel [1981] 1 WLR 690 which is included here for completeness but logically follows from the principles discussed earlier.

Answer 238

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.

Answer 239

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.

Answer 240

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.

Answer 241

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.

Answer 242

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.

Answer 243

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.

Answer 244

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.

Answer 245

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.

Answer 246

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.

Answer 247

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.

Answer 248

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.

Answer 249

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.

Answer 250

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.

Answer 251

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.

Answer 252

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.

Answer 253

simple assault battery max sentence: 6 months simple criminal damage (<5000 pounds)

Answer 254

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

Answer 255

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

Answer 256

society's interpretation between right and wrong

Answer 257

punishing/reforming offenders, reducing crime, protecting public

Answer 258

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

Answer 259

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)

Answer 260

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

Answer 261

Innocent until proven guilty + Entitled to fair trial + Burden on prosecution

Answer 262

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)

Answer 263

Collective resources of society Police investigate CPS prosecute

Answer 264

AR + MR + absence of valid defence

Answer 265

Conduct offences e.g. appropriates (s1(1) Theft Act 1968) Circumstances e.g. belonging to another (s1(1) Theft Act 1968) Result offences Omissions

Answer 266

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

Answer 267

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)

Answer 268

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!

Answer 269

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)

Answer 270

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!!)

Answer 271

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

Answer 272

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

Answer 273

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?

Answer 274

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?

Answer 275

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

Answer 276

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

Answer 277

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"

Answer 278

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

Answer 279

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

Answer 280

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)

Answer 281

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)

Answer 282

(basic/aggravated) criminal damage/arson theft robbery burglary s9(1)(a)/(b) aggravated burglary fraud (x3)

Answer 283

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)

Answer 284

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

Answer 285

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

Answer 286

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

Answer 287

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

Answer 288

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

Answer 289

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)

Answer 290

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

Answer 291

(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

Answer 292

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

Answer 293

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

Answer 294

inchoate offences: an act that is more than merely preparatory to the commission of an offence where D had embarked on the crime proper

Answer 295

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

Answer 296

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

Answer 297

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

Answer 298

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

Answer 299

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

Answer 300

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

Answer 301

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

Answer 302

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

Answer 303

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

Answer 304

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

Answer 305

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