Criminal Law 1

Question 1

Characteristics of a Crime

Answer 1

Melling v O’Mathghamhna [1962] set out the key characteristics of a crime
Butter smuggling. Sanction was £100 fine per charge or 6-12 months’ prison. Was it a crime? Yes
1. A crime is a public wrongdoing, the prosecution of which follows criminal procedure
2. A crime is described using criminal law vocabulary
3. A crime requires proof of a mens rea
4. A crime is a wrongdoing that attracts punishment (not compensation)
DPP v Boyle - A bookmaker failed to pay tax on bets. The Finance Act described the wrongdoing as an offence with a £500 fine upon summary conviction. It was held to be a crime due to the criminal vocabulary used.
McLoughlin v Tuite - Penalty under the Income Tax Act did not meet requirements in Melling, so it was not a crime. It did not follow criminal procedure and was recoverable in civil proceedings, no criminal vocabulary was used, no mens rea needed. This was an administrative penalty, not criminal.
Registrar of Companies v District Judge Anderson - a late-filing fee (which was an administrative sanction) could be combined with criminal prosecution. Higher late fees could constitute criminal sanctions.

Question 2

Rights in a Criminal Trial

Answer 2

1. A criminal trial defendant enjoys constitutional safeguards under Article 38.
2. A criminal defendant usually enjoys a right to trial by jury (Art 38.5).
3. A criminal defendant enjoys the right to a trial ‘in due course of law’ i.e. a fair trial, presumption of innocence, right to silence, right not to testify (Art 38.1)
4. Prosecution must prove that crime was committed beyond a reasonable doubt because of Presumption of Innocence (AG v Byrne and Woolmington v DPP)
5. Defendants have a right to pre-trial silence (Heaney V Ireland) and privilege from self-incrimination (Re National Bank)
   GOODMAN INTERNATIONAL
   - Beef Tribunal investigating criminal activity in the beef industry. Goodman was not entitled to criminal constitutional rights because there was no trial before a court or judge with the power to punish guilty verdicts.
   GILLIGAN v CRIMINAL ASSETS BUREAU
   - The Proceeds of Crime Act 1996 permitted the confiscation of property worth £10k+ if the HC was satisfied, on the balance of probability, the property represented the proceeds of crime.
   HELD: The proceedings were not criminal since
   A) there was no arrest, detention or conviction of the owner before the property was confiscated. B) The proceedings were IN REM, not IN PERSONAM (against the thing).
   C) Forfeiting property is reparation not punishment since it was not the owner’s in the first place.

Question 3

Amendment to Proceeds of Crime Act 1996

Answer 3

The Proceeds of Crime Act 1996 was amended by the Proceeds of Crime Amendment Act 2016
- S.1A allows a temporary seizure of assets before making a formal seizure.
- This can be done while the Criminal Assets Bureau is investigating if there are grounds for a court order and if they reasonably believe the property might be disposed of or the value might be diminished.

Question 4

Classification of Crimes

Answer 4

• Originally, common law classified crimes as FELONIES punishable by death and forfeiture
• Arrests without a warrant could only be done for felonies. For a compounding felony, a prosecutor/victim could accept something valuable not to prosecute felonies. .
• Over time, less serious offences were recognised. These were MISDEMEANOURS: punishable by imprisonment and/or a fine.
• Section 3 of the Criminal Law Act 1997 abolished all this.
• Now there are:
  1. Arrestable Offence 2. Serious Offence 3. Minor Offence 4. Indictable Offence 5. Summary Offence 6. Triable-Either-Way Offence

Question 5

Arrestable Offence

Answer 5

Section 2 of Criminal Law Act 1997:
- An ‘arrestable offence’ is one for which a person of FULL CAPACITY and not previously convicted may be imprisoned for 5 years or by a more severe penalty, including attempts to commit certain offences.
- This means a suspect of an arrestable offence can be arrested without warrant.
- The vast majority of offences are arrestable.

Question 6

Serious Offence

Answer 6

S.1(1) of the Bail Act 1997
- A ‘serious offence’ is one for which a person of FULL CAPACITY and not previously convicted may be imprisoned for 5 years or by a more severe penalty.
- Similar to an arrestable offence.
- Significance: there are only three grounds on which an application for bail may be refused.
- Example: where such refusal is considered necessary to prevent the commission of a serious offence. If the judge is satisfied there’s a risk of such when if given bail, they may refuse.

Question 7

Minor Offence

Answer 7

• Art. 38.2 provides minor offences may be tried by courts of summary jurisdiction, which is the District Court and has no jury.
  MELLING v O’Mathghamhna - Meaning of MINOR OFFENCE:
  1. Severity of penalty 2. Moral quality of act 3. Law and Public Opinion at the time
• Most important factor is the maximum punishment that can be imposed upon conviction.
• Minor Offence: A crime that is punishable by up to and including 12 months’ prison, by a penalty of £100 or triple the duty-paid value of the goods being less than £100 (£100 is €5k today).
  CONROY v AG - one should not consider the secondary effect of losing your license for drink driving when looking at the severity of an offence. Court looked at maximum fine possible.
  O’SULLIVAN V HARTNETT - Court might consider the moral guilt. Here moral guilt in catching one salmon whilst fishing was negligible whereas the moral guilt in catching 900 salmon in a net was considerable. Court also focused on actual fine imposed, rather than maximum fine possible.

Question 8

Indictable Offence

Answer 8

• An offence that is tried on indictment i.e. in the Circuit Criminal Court, the Special Criminal Court or the Central Criminal Court. Example: Murder and rape.

Question 9

Summary Offence

Answer 9

An offence that is tried summarily i.e. in the District Court.
Some offences are always tried summarily:
a. Assault: s.2 Non-Fatal Offences Against the Person Act 1997
b. Offensive conduct in a public place: s.5 Criminal Justice (Public Order) Act 1994
- Section 53 of the Criminal Justice (Theft and Fraud Offences) Act 2001: The DC may try an offence summarily if:
a. The court believes the facts constitute a minor offence fit to be tried summarily
b. The accused, being informed of their right to trial with jury, does not object
c. The DPP consents to the accused being tried summarily for the offence

Question 10

Triable-by-either-way Offence

Answer 10

An offence may be tried either summarily or on indictment if two conditions are satisfied:
a. The DPP must consent to the offence being tried summarily
b. The DC must be satisfied the offence charged is minor
The legislation for the offence will prescribe a punishment upon summary conviction and a more severe punishment upon conviction on indictment.
Example: Assault causing harm UNDER S.3 Non-Fatal Offences Against the Person Act 1997

Question 11

Omissions

Answer 11

General Rule is an omission does NOT give rise to criminal liability.
However, certain offences are defined by law as including a failure to act in a particular manner when it breaches a duty to act in a particular way without using the word “omission.”
No duty to act a certain way, but law may impose liability for omissions inc certain circumstances.
THERE ARE: 1. Special Relationships 2. Voluntary Assumption of Responsibility 3. Creating Risk 4. Failing to Perform a Contractual Duty

Question 12

Special Relationships

Answer 12

DPP v O’Brien - cohabitation between married people gives rise to a duty of care but it was unclear whether this extends to unmarried cohabitants because of the emphasis on marriage in the Constitution. Marital status alone cannot give rise to the duty, it is dependent on cohabitation. A duty may be imposed on cohabitees where they enter a voluntary relationship of companionship.
R v Gibbons - Man and his partner accused of murdering his son by withholding food. Both parties were under a duty to feed the child; the man by virtue of being a biological parent
and the woman by being in loco parentis.

Question 13

Voluntary Assumption of Responsibility

Answer 13

R v Stone and Dobinson - Man’s sister moved into their house and suffered from morbid anxiety, stayed in her room for days on end, denying herself food. Couple knew she became bedridden and made ineffective efforts to help. Did not notify the police, a doctor or a social worker that visited the man’s son. Convictions upheld. By taking her in, they assumed responsibility for her as she was unable to look after herself.
DPP v Joel and Costen - Mum suffering from advanced progressive Multiple Sclerosis and moved in with her son. It was supposed to be temporary but she stayed for 14 months. She was found in poor condition with bed sores and filthy. There was no evidence that the son voluntarily assumed responsibility as he would have had to actively involve himself in her care.

Question 14

When a Person Creates Risk

Answer 14

R v Miller - Mill fell asleep smoking and woke up to mattress on fire but did not put it out. He created the danger and was liable (arson) for failing to act.
R v Evans (Gemma) - Evans gave her half-sister heroin and she self-injected and OVERDOSED. She did not call an ambulance even though she stayed with her. Where a person contributes to the state of affairs, the duty of care arises. Evans had to take reasonable steps after
R v Kennedy - Kennedy gave the victim heroin and she died from self-injection. The victim made an informed voluntary decision so Kennedy was not charged.

Question 15

Failure to Perform a Contractual Duty

Answer 15

R v Pitwood - a train company gatekeeper did not close a gate leading to the rail line and went on lunch. A cart went through and was hit by a train, killing the cart driver. He had a public safety element to his job which brought the omission into the criminal sphere.

Question 16

Act vs Omission

Answer 16

Airedale NHS Trust v Bland - a doctor’s conduct in removing a feeding tube from a patient was an omission. The doctor was allowing a patient to die from an omission but it was not unlawful unless he had a duty to act. Here, he did not as he had no prospect of recovery. Using an interloper is an act because it actively intervenes to stop the doctor from prolonging the patient’s life,
Re a Ward of Court - followed Bland regarding the use of the best interests test with the medical tube in Ireland.

Question 17

Causation of an Act

Answer 17

BUT FOR TEST
DPP v DAVIS - Davis assaulted a woman, then carried her home on his shoulder dropping her along the way but she was also chased by others and fell down the stairs. Here, it was overwhelmingly probable that Davis’ attack was the sole cause of the injuries. The TEST IS MORE THAN A MINIMAL CAUSE. As long as the accused’s conduct was more than a minimal cause of a result, any negligence on the part of the victim will not break the chain.
DPP v Joel - Substantial cause test for Manslaughter not the de minimis test (was the action or omission a substantial cause of the death)
NOVUS ACTUS INTERVENIENS
R v SMITH - A man was stabbed but had a 75% recovery rate. This decreased because of how bad the hospital treated him but the stabber was convicted of murder. At the time of death, the original WOUND was an OPERATING and SUBSTANTIAL CAUSE, so the death resulted from the wound.
R v CHESHIRE - shot wounds were no longer life-threatening but doctors negligently performed a tracheotomy which caused the death. The treatment did not absolve the accused of culpability unless it was so INDEPENDENT that what the accused did was insignificant.
R v Steel - the victim of assault placed on life support. Discontinuance of treatment did not break the chain of causation since the treatment was careful and the assault led to the treatment.

Question 18

Good Samaritan

Answer 18

AG v McGrath - Man shot and left at roadside unconscious. A doctor examined him and went to get held. There was no sign of internal injuries then a priest brought him to the hospital. The man died from internal bleeding. Bringing him to the hospital did not break the chain. It was “humane and well-intentioned” caused by the wrongful act of the accused.

Question 19

External Influences Involved in a Crime

Answer 19

Impress Ltd v Rees - Security guards or gates were not protecting the premises and a trespasser unlocked a valve so oil got into the river and polluted it. The trespasser broke the chain of causation.
Environmental Agency v Empress Car - HOL said Impress was wrongly decided. Ordinary acts do not break the chain of causation but extraordinary acts do. The trespasser did an ordinary act here so the chain was not broken.
R v Pagett - Pagett used a person as a human shield in a police shoot-out. He caused the death under the but-for test.
R v Hallett - Forces of nature like a tide as not extraordinary unless it is an act of God like an earthquake.

Question 20

Egg Shell Skull Rule

Answer 20

You take your victim as you find them
R v Holland - Holland injured the victim’s finger. Victim refused treatment knowing that it could lead to complications, and this caused the death. The refusal did not break the chain. Holland was charged.
R v Blaue - Victim stabbed rejected blood transfusion for religious reasons. You can’t decide what is reasonable or not where religious beliefs are concerned.
S.24 Non-Fatal Off Act 1997 lets over 16s consent to med treatment without parent’s consent. If parents of under 16s refuse treatment, the accused must take the victim’s parents as he finds them.

Question 21

What must we show for Mens Rea?

Answer 21

1. The conduct was voluntary
2. The accused knew of the circumstance or was reckless as to its existence and
3. The accused intentionally or recklessly caused the result.
   The judge/jury decides on whether there was intention. Problem is Intention doesn’t mean a result is desired, likely, premeditated or that there’s motive.
   Aspects of MR ARE intention, recklessness, knowledge

Question 22

Direct Intention

Answer 22

DPP v MURRAY - Intention ‘is to have in mind a FIXED PURPOSE to reach the desired objective’. Their state of mind foresaw and willed the consequences
DPP v DOUGLAS and HAYES - Convicted of shooting ‘with intent to commit murder’. An accused person is presumed to have intended the natural and probable consequences of his actions.
The PRESUMPTION OF INTENTION applies in every case, but it is REBUTTABLE –> No onus on the accused to prove it has been rebutted, the prosecutor must show it has not been rebutted.

Question 23

Oblique Intention in UK

Answer 23

Hyam v DPP - Accused poured petrol in letterbox and lit it to get occupant to leave, but fire killed two kids. HELD: accused intended the result if it was a HIGHLY PROBABLE RESULT OF their actions, whether they desired it or not. Foresight was enough.
R v Moloney Overturned Hyam - Moloney was playing a drunken game in a wedding anniversary party of who could pull shotguns quicker. Moloney said he did not aim at his stepdad but pulled the trigger, killing stepdad. HELD THAT FORESIGHT SHOWS EVIDENCE OF INTENTION, not intention itself. Moloney did not intend to kill stepdad.
(1) Was the result a natural consequence of his act? (2) Did he foresee the result as a natural consequence of his act?
R v Nedrick - Nedrick poured oil in letter box and lit it, kid died. New test: Intention can only be inferred if a result is virtually certain. If the action will result in death or serious harm, it can be said they intended this without desiring this.
- Hanley noted that because of the virtually certain test that is so narrow, it could result in more cases resulting in manslaughter rather than murder.

Question 24

Oblique Intention in Ireland

Answer 24

Section 4(2) of the Criminal Justice Act 1964
DPP v HULL - Hull was jealous of a guy and went to confront him. He killed him with a shotgun but said this was accidental. He was convicted of murder.
(1) What was the ‘natural and probable consequence’ of the accused’s actions?
(2) If it was death/serious injury, has the prosecution shown that the presumption has not been rebutted?
CLIFFORD v DPP - Charleton J noted ‘the closer the impugned conduct comes to inevitably causing the consequence charged, the more readily a court may feel able to infer that intention’.

Question 25

Commentary on Oblique Intention

Answer 25

Law Reform Commission Report 2008 on Homicide recommended:
A result is intended if:
(1) It is the defendant’s conscious object or purpose to cause it, or
(2) He is aware that it is virtually certain that his conduct will cause it, or
would be virtually certain to cause it if he were to succeed in his purpose of causing some other result.

Question 26

Recklessness

Answer 26

• A conviction often involves proving he intentionally did something or recklessly did something and was aware of that risk.
• This mens rea is considered less morally reprehensible than intention.

Question 27

Modern Recklessness in UK

Answer 27

R v G Subjective Standard
- Boys set fire to newspapers in an alley behind a shop and left, expecting it to go out but it didn’t. Led to £1 million in damage. Boys charged with arson.
- Caldwell objective test did not account for situations when a person “genuinely does not perceive the risk” (e.g. due to their age).
- New test: A person acts recklessly with respect to (1) A circumstance when he’s aware of a risk that exists or will exist (2) A result when he’s aware of a risk that will occur and it is, in the circumstances known to him, unreasonable to take the risk.
Subjective: Where the accused knew of the risk or had foresight of it.

Question 28

Traditional Recklessness

Answer 28

Two traditional types of recklessness:
R v CUNNINGHAM Subjective Standard - Cunnigham tore a gas meter off wall to steal money in it, gas leaked into next building, endangering victim’s life. He was charged for maliciously administering this gas since he did it recklessly. Cunningham must have FORESEEN HARM WOULD OCCUR but went ahead with it anyway.
R v CALDWELL Objective Standard - recklessly destroying property with arson.
Accused is reckless if:
1. He does an act which creates an obvious risk and
2. When he does the act, he either hasn’t given any thought to the possibility of the risk or recognised some risk was involved but still did it.

Question 29

Modern Recklessness in Ireland

Answer 29

Legislative preference for subjective recklessness in s.2(1) Criminal Damage Act 1991
In Ireland, we use the subjective test in Murray, McGrath and Cagney
DPP v Murray - married couple in armed robbery. Wife shot victim who turned out to be off-duty, non-uniformed Garda. Charged with capital murder which attracted the death penalty at the time. Court favoured subjective recklessness. Accused cannot consciously disregard a risk without being aware of it. This was context-specific. One judge preferred objective reasonableness for other offences.
DPP v McGrath and Cagney - recklessness test in Ireland is subjective: they must have foreseen the risk but proceeded with the conduct anyway.

Question 30

Knowledge under Mens Rea

Answer 30

DPP v Foley - Gardaí found Foley sitting on bed surrounded by firearms. Possession can be inferred even when the item isn’t found on the person. Foley charged with possession of a firearm. An inference could be drawn from the circumstances (1) that they were in possession of guns, (2) that they knew this and (3) they were aware of the purpose the guns were held for.
Hanlon v Fleming - Concerned knowledge regarding handling stolen goods. To be charged, it required actual knowledge that the goods were stolen. Sometimes, the circumstances in which the accused got the goods satisfied the reasonable mind that the goods were dishonestly obtained.

Question 31

Strict Liability Offence

Answer 31

• Criminal liability is strict if the prosecution doesn’t have to prove mens rea for each part of the actus reus
• A person is held liable for actions regardless of his mental stage or degree of fault.
• Good for pollution and drunk driving,
• CC v Ireland - SC held offence of having unlawful carnal knowledge of a girl under 15 was Strict Liability. Now, there is a defence of reasonable mistake as to age.

Question 32

Presumption of Mens Rea

Answer 32

Arises where legislation governing an offence doesn’t stipulate a Mens Rea requirement for each part of the actus reus. Not easily rebutted.
TWO factors in deciding whether the presumption is rebutted:
1. The Object and Intent of the Legislation and
2. Whether the offence is characterised as ‘truly criminal’ or ‘regulatory’
If Strict Liability would advance the object of the Act, the presumption of Mens Rea may be rebutted. Example: encouraging vigilance on the part of would-be offenders.

Question 33

Cases under the Presumption of Mens Rea

Answer 33

OBJECT and INTENT OF LEGISLATION
Clearest guide and you look at: (1) Wording of other provisions in the Act (2) Legislative History of offence
CC v Ireland - accused of having sex with under 15 yr old. Court looked at legislative history of defence of mistake regarding age and social stigma.
M’Adam v Dublin United Tramway - a prohibition on a certain number of people being carried in one carriage was absolute. It was to protect public against danger of overloading.
Maguire v Shannon Regional Fisheries Board - Under Fisheries Act, anyone who causes any harmful matter to fall into any waters without a licence will be guilty of an offence. This was strict liability to encourage greater vigilance on offenders.
WHETHER OFFENCE IS CHARACTERISED AS TRULY CRIMINAL OR REGULATORY
M’Adam - Court regarded the seriousness of the crime as a relevant factor. Prohibition was in the public interest.

Question 34

Relationship between Mens Rea and Actus Rea

Answer 34

FAGAN v Metropolitan Police Commissioner - Fagan charged with assault after accidentally driving on a police officer’s foot but then refused to move. There was no mens rea at the start but his refusal to move made him punishable.
KAITAMAKI v R - actus reus for rape was non-consensual sex. Mens rea is if the accused knew there was no consent or was reckless as to whether there was consent. Consent was there when he initially penetrated but then stopped being there. Mens rea came in when he realised she no longer consented.
R v THABO MELI - A man attacked the victim and threw him off a cliff, thinking he was dead. The whole event was one transaction. Mens rea and actus reus to kill at any point existed for the whole thing. Convicted for murder.

Question 35

Doctrine of Innocent Agency

Answer 35

Doctrine: If X employs an innocent agent to engage in/cause the actus reus of a crime, X is guilty of that crime as a perpetrator.
INNOCENT AGENT NOT GUILTY IF:
1. He lacks the REQUISITE MENS REA or 2. HE HAS A DEFENCE
R v COGAN - A procured B to have non-consensual sex with A’s wife. A might not have had the Mens Rea of rape as he may have believed A’s wife was consenting. Thus, he was an innocent agent and not guilty. A was guilty instead.
R V BOURNE - Bourne forced wife to have sex with a dog. She was not guilty of buggery as she had a defence: she was an innocent agent. Bourne was guilty of buggery as he employed an innocent agent to engage in the Actus Reus.

Question 36

Complicity

Answer 36

• S.7(1) Criminal Law Act 1997 states any person who aids, abets, counsels or procures the commission of an offence is liable to be punished as a principal offender (perpetrator).
• Accessory: Anyone who aids, abets, counsels, etc. the commission of an offence by the perpetrator. It is not a crime to be an accessory. Rather, they are guilty of a crime as an accessory.

Question 37

Actus Reus for Complicity

Answer 37

1. Prosecution must prove his conduct, in fact, aided, abetted, counselled or procured the commission of the crime by the perpetrator. If it didn’t actually do such, not guilty even if he intended it to do such.
2. Aids: Means ‘assists in’ a crime. Abets and Counsels mean ‘encourages’.
3. R v Giannetto - slightest encouragement can constitute abetting or counselling. Example: If someone says they’re going to kill your wife, a pat on the back or an “oh goody” is sufficient.
4. AG’s Reference (No 1 of 1975) - Aids, abets or counsels means ‘assists in or encourages’. Where it’s alleged a person aided, abetted or counselled, it doesn’t have to be proved his conduct caused the perpetrator to commit the crime. However, with procurement it does. Def spiked a man’s drink causing him to commit drink driving. This was procurement as the driver’s could not have commit this crime otherwise.
5. AG v Ryan - mere presence can constitute assistance or encouragement. Ryan was a gang member. That gang had an altercation with another gang in Belfast before a dance. Ryan was there with weapons when his gang leader attacked the other gang. No evidence that he assisted/encouraged the leader but he could be convicted if the presence of more members in the gang enabled the leader to attack.

Question 38

Mens Rea for Complicity

Answer 38

1. AG v Ryan - Gang violence. Prosecution must prove the def knew or intended that his conduct would aid, abet, counsel or procure the commission of a crime by the perpetrator., he may be guilty of the crime as an accessory. Proof of knowing serious injury will occur is enough.
2. DPP v Egan - Def said he would not have allowed his garage to be used for robbery if he knew the extent of theft. Not necessary to show he knew precise means of theft. It is sufficient that he knew the nature of the intended crime.
3. DPP v Madden - 4 men convicted of murder because the victim was killed by bullets from passing car. Prosecution must prove the acts of aiding and abetting were done in the knowledge of the intended commission of an unlawful killing. The Court seriously limited the mens rea here. Could be stigma that comes with murder.

Question 39

Common Design Principles

Answer 39

Common Design: An agreement between 2 or more to commit a crime. If only one commits the crime, they are the perpetrator and the rest are accomplices.
S.7(1) of Criminal Law Act 1997 determines the liability of accomplices.
- It can often be said accomplices are accessories. Example, if A and B set out to rape V, how does B participate in A’s penetration of V except by assisting and encouraging him?
- However, judges continue to describe a person’s liability as an accomplice.

Question 40

Common Design Cases

Answer 40

GAMRED
………….
1. R v Gnango (UK)
2. R v Anderson and Morris
3. DPP v Murray
4. AG v Ryan
5. DPP v Eccles
6. DPP v Doohan

Question 41

R v Gnango (UK)

Answer 41

Victim walking home at night when killed by a shot from a shoot-out between A and B.
Scientific evidence showed the bullet came from A’s gun and not B’s.
A was guilty of murder as a perpetrator and under the doctrine of transferred mens rea.
B was guilty as an accomplice. SC disagreed on whether B was an accessory or party to Common Design.
- Phillips was satisfied that A and B formed an agreement to have a gunfight and this meant B aided and abetted the murder of A by aiding and abetting him to shoot at him. Issue of B as a party to common design was irrelevant.
- Brown preferred view B was guilty of murder as a party to Common Design. Kerr dissented.

Question 42

R v Anderson & Morris

Answer 42

Common Design: “Where two people embark on a joint enterprise and one of the adventurers goes beyond what’s been tacitly agreed as part of the common enterprise, his co-adventurer is NOT liable for the CONSEQUENCES of that UNAUTHORISED act”.
Courts look at circumstances & communications between them to see what was unauthorised.

Question 43

DPP v Murray

Answer 43

• Couple robbed a bank and wife shot a man who was a Gardai that was off duty.
• The Courts did not allow the inference of the wife’s recklessness in shooting the Gardai to be attributed to the husband.
• They could have decided beforehand not to shoot a Gardai
• Minority felt it should have been imputed to the husband

Question 44

AG v Ryan

Answer 44

Basis of common design is mere contemplation, not an agreement
- Ryan’s presence when his gang leaders attacked some members of another gang was within the scope of common design.
- Look at the circumstances, Ryan must have contemplated that if his party met the other party, anyone with a weapon might use it on the other party as the leader did.

Question 45

DPP v Eccles

Answer 45

• Eccles had meetings before doing a robbery where a Garda was shot.
• He argued although there was a Common Design to rob, shooting a Garda was a risk so it was outside the agreement.
• The robbery involved a post office van protected by gardaí. It was agreed that anyone guarding the van would be “dealt with”.
• HELD: An inference could be drawn that the Common Design included possibility of shooting a Garda

Question 46

DPP v Doohan

Answer 46

Accused hired a hitman to cause serious injury but the hitman killed the victim.
Agreement to cause serious injury is sufficient for murder conviction with Common Design.

Question 47

Abandonment

Answer 47

R v Gauthier
Wife and husband accused of killing kids. Wife claimed she communicated her intention to withdraw.
Defence of abandonment is raised if:
1. The intention to abandon is TIMELY COMMUNICATED
2. Notice is served on those who wish to continue
3. The accused took reasonable steps to neutralize/cancel out the effects of his participation

Question 48

Accessories after the Fact

Answer 48

SECTION 7 OF THE CRIMINAL LAW ACT 1997
- S.7(2): where a person has committed an arrestable offence, any other person who, knowing or believing him or her to be guilty of the offence or of some other arrestable offence, does without reasonable excuse any act with intent to impede his or her apprehension or prosecution shall be guilty of an offence.
FOR ACCESSORIES AFTER THE FACT, IF A PERSON DOES SOMETHING WITH THE INTENT TO IMPEDE THE APPREHENSION OR PROSECUTION WHEN THEY KNOW OR BELIEVE THE PERSON DID THE OFFENCE
- S.7(4): sets out the sentences: Generally, up to half of what the perpetrator gets.
If life, then up to 10 years. If 14 years, 7 years if not previously convicted. If 10 years, then 5 years if not previously convicted. But a maximum of 3 years in all other circumstances.
THESE apply for AIDING, ABETTING, COUNSELLING or PROCURING a crime.

Question 49

Murder

Answer 49

Most serious crime: attracts a mandatory punishment of life imprisonment.
S.4 Criminal Justice Act 1964 provides:
1. Where a person kills another unlawfully, the killing shall not be murder unless the accused person intended to kill/cause serious injury to some person, whether they were actually killed or not.
2. The accused is presumed to have intended his conduct’s natural and probable consequences, but this presumption may be rebutted.
3. DPP v Jackson - Jackson admitted to stabbing Victim in heart, causing death, then tried to plead guilty to manslaughter. He was convicted for murder. Intention was a matter for the jury and intent can be inferred from a person’s conduct, behaviour and the circumstances.

Question 50

LRC Report in 2008 on Homicide

Answer 50

Recommends:
1. Extending murder to include ‘reckless killing manifesting an extreme indifference to human life
2.An intention to cause serious harm be retained as an alternative to mens rea BIT NOT Recklessness as to causing serious injury.
3. Low levels of deliberate violence resulting in death, and death from administration of drugs by injection, should not be within the scope of criminal and dangerous act manslaughter.
4. Law on Criminal and Dangerous Assault Manslaughter should be codified so that an act is deemed manslaughter if (1) the act causing death constitutes a crime and poses a risk of bodily harm and (2) an ordinarily reasonable person would consider the act as dangerous.
5. New offence of assault causing death which is less serious than manslaughter.
6. Road Traffic Act should include careless driving causing death in s 52

Question 51

Capital Murder

Answer 51

S.3 of the Criminal Justice Act 1964: Mandatory life sentence and Minimum punishment of 40 years.
1. Murder of Garda/prison officer while on duty
2. Murder of foreign heads of state or foreign diplomats within the State for a political motive.
3. Murder committed to further SUBVERSICE OBJECTIVES the Offences Against the State Act 1939
DPP v Murray
- For MENS REA, it requires the accused must have KNOWLEDGE of each part of the offence
- Accused must have either known the victim was a Garda or reckless as to whether he was.
- Also, he must know that the Garda was acting in his duty or reckless as to whether he was.
LRC REPORT ON HOMICIDE recommended the abolition of the mandatory life sentence and leave the discretion to judges with no mandatory minimum sentence.

Question 52

Assault Manslaughter

Answer 52

A person is Guilty of Assault Manslaughter if they assault intending to cause harm of greater than trivial character.
R v Holzer - Holzer hit the victim, cutting his lip, but the victim fell back and hit his head on the road causing his death.
Law on assault manslaughter does not concern itself when a person assaults intendingto produce trivial effects under DE MINIMIS Also not necessary to seek or intend to cause serious harm since this is not murder but assault manslaughter.
R v Hayward - Psychological assault can be within the offence: the threat of violence was sufficiently serious to qualify as assault manslaughter.

Question 53

Negligence for Manslaughter

Answer 53

AG v Dunleavy sets out the criminal law of negligence. Dunleavy was charged with running over the victim, killing him. He drove at night with his lights off on the wrong side of the road. The test for negligence is objective.
1. Negligence here means failure to observe a course of conduct that experience shows is necessary to avoid the risk of injury, i.e. failure to act as a reasonable driver would.
2. Jury must be satisfied that negligence by the accused is responsible for the death (causation)
3. Different categories of negligence: Ordinary carelessness is not enough for conviction. It has to be a higher degree of negligence which involved the risk or likelihood of substantial personal injury to others.
DPP v Cullagh - screw on inside of chairoplane machine became rusty so a seat detached mid-ride. Victim died when she fell out. Screw not obviously seen, but the general state of machine was ‘deplorable’. This should’ve alerted him to the possibility there were issues with it so he was liable. The question of degree was if Cullagh failed to discharge his duties owed to the child.
JOEL v DPP - Do the circumstances objectively amount to a very high degree of negligence? Would a reasonable person say a serious risk was unjustifiably taken?

Question 54

Road Traffic Accidents causing Death

Answer 54

S.4(1) Road Traffic Act 2011 inserted s.52 and 53 into Road Traffic Act 1961:
1. S.52: Crime to drive a vehicle in a public place without due care and attention. If it causes death or serious bodily harm, liable to max punishment of 2 years’ prison and a €10,000 fine.
2. S.53: Shall not drive in public place in a way that, regarding all circumstances, it is/is likely to be dangerous to the public.
Punishment for death/serious bodily harm on indictment is up to 10 years or €20k or both and any other case, on summary conviction, class A fine, 6 months or both. Cannot say accused was not speeding as a defence.
Requires a lower standard than criminal negligence.
AG v Quinlan - “dangerous driving” is driving in a way in which a reasonably prudent motorist, having regard to all the circumstances, would clearly recognise as involving a direct & serious risk of harm to public.
DPP v O’Shea - the offence of careless driving causing death was an offence of strict liability.

Question 55

Criminal and Dangerous Act Leading to Death

Answer 55

Larkin - Larkin waved a razor intending to frighten his mistress’ lover, but accidentally cut their throat. Convicted for manslaughter.
A PERSON IS GUILTY OF MANSLAUGHTER WHEN they ENGAGE IN an unlawful and dangerous act, which INADVERTENTLY CAUSES DEATH. There is no need for intent to kill or seriously injure.

AG v Crosbie and Meehan- Leading IRISH CASE. Crosbie started swinging a knife in a pub brawl. The act causing death must be both UNLAWFUL AND dangerous to constitute manslaughter. ‘Danger’ must be judged objectively. It does not matter if the accused thought the act was not dangerous OR DID NOT INTENT TO KILL/CAUSE SERIOUS INJURY to the victim.

DPP v Horgan - conviction for criminal and dangerous manslaughter arises where:
1. The act causing death is a criminal offence and poses the risk of bodily harm to another
2. Ordinary reasonable person would the act consider dangerous or cause some harm
3. Dangerousness is judged objectively.

Question 56

Killing of a Baby or the Unborn

Answer 56

Art.40.3.3 previously gave right to life of unborn
an equal footing to the right to life of the mother. Now, it provides for the termination of pregnancy.
S.1(3) of the Infanticide Act 1949 provides a woman shall be guilty of infanticide if:
1. By any wilful act or omission she causes the death of her child who is under 12-months
2. Under the circumstances, the act or omission would amount to murder and
3. At the time of the act/omission, her mind was disturbed by reason of her not being fully recovered from the effect of giving birth to the child or by reason of mental disorder after the birth.
This includes post-natal depression under the Criminal Law Insanity Act 2006 and intention to kill. She will then be convicted of manslaughter on the ground of diminished responsibility.

Question 57

Assisted Suicide and Attempted Suicide

Answer 57

• S.2(1) Criminal Law (Suicide) Act 1993 abolished the crime of suicide and attempted suicide.
• S.2(2) Criminal Law (Suicide) Act 1993 criminalises assisted suicide: ‘a person who aids, abets, counsels or procures the suicide of another, or an attempt, shall be guilty of an offence’.
• Fleming v Ireland - Victim had multiple sclerosis and was in severe pain. Her partner wanted to assist on her suicide. The right to life does not include a right to die or assisted suicide. It is up to the DPP to prosecute or not and the Courts cannot force DPP to prosecute or not.

Question 58

Assault

Answer 58

Section 2 of the Non-Fatal Offences Against the Person Act 1997
Summary offence with a maximum punishment of 6 months’ prison and a class C fine.
S.2(1) A person is guilty of the offence of assault who, without lawful excuse, intentionally or recklessly
(a) Directly or indirectly applies force to or causes impact on the body of another (force), or
(b) Causes another to believe on reasonable grounds that they are likely to be immediately subjected to any such force or impact (threat of force) without the consent of the other.

FORCE
S.2(2) Force includes applying heat, light, electricity, noise, or any energy including solid, liquid or gas form.
DPP v K (A minor) - Schoolboy poured acid into a hand dryer in school toilets and left without removing it. The next boy who used it was scarred permanently. A defendant who pours a dangerous substance into a machine assaults the next user as if he himself had switched the machine on.

THREAT OF FORCE - R V IRELAND
1. Steyn L said that both words and gestures can amount to assault because a thing said is also a thing done.
2. Something said can cause apprehension of IMMEDIATE personal violence.
3. A silent caller can be guilty of assault depending on the facts because another person fears their arrival or the possibility of immediate violence.

Question 59

Three Elements of Both Types of Assault

Answer 59

1. The Accused must have acted without Lawful Excuse. Includes defence necessitated by THREAT OF DEATH from a person and FROM the CIRCUMSTANCES.
   S.24 Teachers are not allowed chastise pupils: no lawful excuse.
2. The Accused must have acted without the Consent of the Alleged Victim subject to implied consent doctrine (s.2(3))
   - S.2(3) Implied Consent Doctrine: No assault is committed if the force or impact, not being intended or likely to cause injury, is in the circs such as is generally acceptable in ordinary conduct of daily life and def doesn’t know/believe it’s unacceptable to the other person.
3. Mens Rea: MR of assault is intention or recklessness.

Question 60

Assault causing Harm

Answer 60

S.3(1) of NFOAPA - makes it an offence to assault another causing harm to them.
- S.1 defines harm as ‘harm to body or mind’ and includes pain and unconsciousness.
- S.3(2) Max punishment is 5 years’ prison and an unlimited fine or 12 mnths and £1500 fine on summary conviction.
R v Brown - Consent not a defence for BDSM gone bad.
Minister for Justice v Dolny - ‘assault’ under s.3(1) should not be defined by reference to s.2(1). No requirement of a mental element for assault causing harm. Assault here comes under Oxford dictionary meaning ‘a violent or verbal attack’. Consent is not a defence.
DPP v Brown - A fellow prisoner asked Brown to hit him which caused serious injury because he wanted to leave that prison. It does not matter if there is Consent if the act is illegal.

Question 61

What does it mean to Cause Serious Harm under Assault causing Harm?

Answer 61

S.4(1) NFOAPA 1997 - Offence to intentionally or recklessly cause serious harm to another.- Wording implies no need to prove assault took place.
- S.4(2) Only triable on indictment. Max punishment is life prison and/or unlimited fine
- S.1 defines ‘serious harm’ as a substantial risk of death, causes serious disfigurement, substantial loss or impairment of mobility of all or part of the body
DPP v Kirwan - K assaulted victim with glass in nightclub. Victim required operation and stitches on left eye. HELD: Injury need not be one with long term consequences. Serious temporary ones enough. For disfigurement, the jury should also consider the outcome of any medical attention.
DPP v O’Reilly - serious harm is caused if the injured person was placed at a substantial risk of death at any point because of the infliction of violence, however brief or transient even if medical intervention stabilises the victim.

Question 62

Threats to Kill or Seriously Harm

Answer 62

• S.5(1) NFOAPA - makes it an offence to threaten to kill or cause serious harm to someone or a third party by any means, without lawful excuse, intending them to believe this would occur.
• You don’t have to prove that offender wanted to execute harm but you just prove that the victim believed they would.
• This may also be assault if they reasonably believe they are likely to be subject to immediate personal violence.
• S.5(2) Max punishment is 10 year’s prison and an unlimited fine on indictment. Up to £1,500 and/or 12 months imprisonment

Question 63

Syringe Attacks

Answer 63

S.1 Syringe: Any syringe/needle/sharp instrument capable of piercing skin and passing blood/substance resembling blood into a person.
S.1 Contaminated blood/fluid: Substances contaminated with any disease, virus or organism which is capable of infecting them with potentially/actual life threatening disease IF PASSED INTO THE BLOOD
ALSO INVOLVES ASSAULT
S.6(1) NFOAPA - It is an Offence to use a syringe to injure another by piercing their skin or threaten to with the intention/likelihood of making them belive they might be infected with a disease
S 6(2) Extends to spraying, pouring or putting blood, fluid or substance resembling blood on someone and threats.
S. 6(3) – Extends to injuring 3rd party with syringe or sprays them with blood/fluids under transferred malice.
S. 6(1) – (3): less serious syringe attacks with uncontaminated syringes – judged objectively. Max punishment (a) on summary 12 months’ and €1,905 and (b) on indictment 10 years’ and an unlimited fine.
S.6(5) EXTENDS ABOVE PROVISIONS TO serious attacks with contaminated syringes, even with 3rd parties. Leads to life imprisonment.
No need to prove the victim was actually infected.
DPP v O’Brien - mens rea can be proved two ways: intention to cause the victim to believe they may become infected, or recklessness

Question 64

Possession of a Syringe

Answer 64

Section 7(1) – it is an offence to possess syringe or any blood in container with intent to use it to CAUSE INJURY to another, THREATEN to cause injury, INTIMIDATE.
S. 7(5) – no onus on prosecution to prove who other person was. Person ‘possesses’ something if has actual or constructive control of it and is aware of control. Possession can be evidence of intent unless there is an adequate explanation for possession.
S 7(7) - Summary conviction is 12 months and €1,905 and indictment is 7 years and unlimited fine.
Minister for Post v Campbell - a man enjoys constructive control if he has actual possession and control of something that it is available when he wants it

Question 65

Placing or Abandoning a Syringe

Answer 65

S. 8(1) NFOAPA – offence to place or abandon syringe in any place in such manner that likely to INJURE another and does INJURE, cause THREAT to or FRIGHTEN another. Summary conviction is 12 months and €1,905. Indictment is 7 years and unlimited fine under S. 8(5)
S 8(2) – offence to intentionally place a contaminated syringe in manner likely to injure. Punishment is life in prison under s 8(6).
S. 8(3) – NOT AN offence if a person places a syringe in any place while administering or assisting in lawful medical, dental or vet procedure.
S. 8(4) – if syringe placed in the normal residence of accused, defence if shows he didn’t intentionally place it in a manner likely to injure or threaten.

Question 66

Coercion

Answer 66

S.9(1) Coercion is when a person has a view to compel another to (i) do an act that they have a lawful right to abstain from doing or (ii) abstain from doing an act that they have a lawful right to do. They wrongfully and without lawful authority -USINF VIOLENCE, INTIMIDATION, INJURY, DAMAGE TO THEM, THEIR FAMILY OR PROPERTY OR FOLLOWING/STALKING THEM
(a) Use violence or intimidation to others or family.
(b) Injure or damage other people’s property
(c) Persistently follow others.
(d) Watch or beset someone’s work place, residence, their location or their approach to these places
(e) Follows others with 1 or more persons in disorderly manner or through a public place.
S.9(3) Max punishment (a) summary 12 months’ and €1,905 (b) indictment 5 years’ & unlimited fine

Question 67

Harassment

Answer 67

Section 10(1) NFOAPA – offence to use any means (including phone) to harass another by persistently following watching, pestering, besetting or communicating with them, without lawful and reasonable excuse
S. 10(2) – harassment involves intentionally or recklessly, seriously interfering with other’s peace and privacy or causing alarm or distress. A reasonable person realises that these acts would cause interference or harm. This is judged objectively.
S. 10(3) – court can order restraining orders if person is guilty of harassment. S. 10(4) – offence to breach restraining order.
S. 10(5) – even if not guilty, court can make restraining order if satisfied that it is in the interest of justice to do so
S. 10(6) – Summary conviction is 12 months and €1905. Indictment is 7 yrs and unlimited fine.

Question 68

Cases for Harassment

Answer 68

DPP (O’Dowd) v Lynch
- Events that took place over 2.5-3 hours were held to be persistent (though this is not usual).
- Children in the living room were watching TV.
- Lynch was installing a kitchen in their home and exposed himself masturbating to first child and repeated this 2 more times over a short period of time, also making revving noises with a saw.
- ‘Persistence’ includes incidents separated by intervening lapses of time and incidents that immediately succeed each other like a LONG CAR JOURNEY.
DPP v Woods - Wife pleaded guilty to an offence of harassment where she had made over 2,000 phone calls. Court said ‘harassment is a very mild way to express this conduct’
DPP v Quirke - Quirke found guilty of 4 counts of harassment where, on various occasions over 4 years, he followed his ex-girlfriend, drove into her estate and drove to her workplace.

Question 69

Demands for Payment of Debt

Answer 69

Section 11 is designed to deal with loan sharks.
It is an offence to frequently demand for payment in a manner that causes the debtor or their family alarm, distress or humiliation or pretend they have official capacity to enforce demand or pretend documents have official character or pretend there are criminal proceedings for non-payment.
Summary conviction is fine of up to €1905.

Question 70

Poisoning

Answer 70

S.12(1) NFOAPA - A person is guilty of an offence if, knowing someone doesn’t consent, intentionally or recklessly administer/causes to be taken any substance he knows is capable of substantial interference with bodily functions. This means the person does not make a voluntary and informed decision to take the poison.
S.12(2) ‘poison’ includes substance capable of inducing unconsciousness or sleep.
S.12(3) Summary conviction is 12 months and €1,905. Indictment is 3 years and unlimited fine.
R v Gillard - poisoning includes injecting, holding a glass of poison to someone’s lips, spraying poison. No requirement to show the victim was in fact poisoned.

Question 71

Endangerment

Answer 71

S.13(1) NFOAPA - Offence to intentionally or recklessly engage in conduct which creates a substantial risk of death or serious harm to others.
S.13(2) Summary conviction up to 12 months and £1500 and indictment up to 7 years & unlimited fine
S.14(1) Offence to intentionally put any dangerous obstruction on a railway, road, street, waterway, public place or interfere with any machinery, equipment, signal etc. when aware that it may cause injury/damage or when being reckless regarding this. Same punishment as endangerment under s 14(3).
DPP v Cagney - offence of endangerment is general and not specific so it can be applied after events which aren’t obviously criminal themselves and whose legality can’t be assessed accurately in advance.
Examples: Acts done with victim’s consent and omission to help a person

Question 72

False Imprisonment

Answer 72

S.15(1) NFOAPA - Offence to intentionally or recklessly take or detain, cause to be taken/detained or otherwise restrict personal liberty without consent of another.
S.15(2) Consent obtained by force, threat of force or fraud is not valid consent.
S.15(3) Maximum punishment is life imprisonment.
Kane v Governor of Mountjoy Prison - A warrant was pending for Kane’s extradition and the gardaí feared he might abscond so they put him under extremely close overt surveillance, following him around on foot and by car. This is unlawful if there is no special adequate justification for it. It can gravely affect someone’s peace of mind and public reputation. The gardai had a special justification.
Mee v Cruikshank - Prisoner was kept detained after being acquitted. This was false imprisonment.
Dullaghan v Hillon - False imprisonment does not require proof the victim was aware of the restriction of his personal liberty like if asleep. No minimum time for false imprisonment.

Question 73

Child Abduction

Answer 73

S 16 NFOAPA is child abduction by parents and S 17 is child abduction by others
S.16(1) If child under 16 is taken, sent or kept out of State in defiance of court order or without consent of both parents/guardians then offence committed.
S.16(2) This only applies to a parent, guardian, or person given custody by a court. Includes international child abduction. DPP must consent to proceedings under s.16. Up to 7 years in prison and unlimited fine.
S.16(3) Defences available - Removing parent was unable to communicate with other parent but believed that they would have consented if they knew the circumstances or they didn’t intend to deprive the other of rights of custody.
S.17(1) applies to people who are not the parent, guardian, or person given custody by a court. If, without lawful authority or reasonable excuse, intentionally take or detain child under 16 or cause that child to be taken from lawful control of parent/guardian, then offence committed.
S.17(2) It is a defence if the defendant believed the child was 16 years or older. Max punishment is 7 years in prison and an unlimited fine.
- Consent of child is not a defence. Lack of consent could also mean false imprisonment.
- The accused’s belief is his honest belief, which does not have to be reasonable but the court/judge decides on this.