Criminal Law 2

Question 1

Rape

Answer 1

1. S.2(1) Criminal Law (Rape) Act 1981 states a male person commits rape if:
   (a) He has sexual intercourse with a female who at the time does not consent to it (AR) and
   (b) At that time, he knows she doesn’t consent or he’s reckless as to whether she does (MR)
2. S.48 Offences Against the Person Act 1981🡪 Rape attracts a max punishment of life imprisonment.
3. The Criminal Law (Rape) (Amendment) Act 1990. S 5 means husband can now be guilty of raping wife. S 6 means boys under 14 can be guilty too.

Question 2

Actus Reus for Rape

Answer 2

● Involves penetration of a vagina by a penis. Females can only be guilty of rape as an accomplice.
● Does not extend to penetration of vagina by object or penetration of mouth/anus by a penis.
● AG v Moody - Even the slightest penetration is rape, even if it does not touch the hymen.
● 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. He was convicted.

Question 3

Mens Rea for Rape

Answer 3

Mens Rea: Knowledge she was not consenting or reckless as to whether she was. Accused was aware of the risk she wasn’t consenting
S.2(2) CLRA🡪 The jury considers if there were reasonable grounds to make a man belive a woman consented.
DPP v Morgan – Man invited Morgan to have kinky sex with his wife and said she would protest and struggle but she liked it. The accused said he honestly believed it was consensual. An honest belief of consent means there is no mens rea, even if the belief is unreasonable. Morgan could not have honestly believed she was consenting here.
DPP v O’R - Accused had sex with his mum and claimed it was consensual but his mum said it was rape. Charleton J confirmed that the mens rea for rape was subjective: It’s not what a reasonable man believed regarding consent, but rather what the accused actually believed.

Question 4

Sexual Assault

Answer 4

Sexual assault is a common-law offence.
The Criminal Law (Rape) (Amendment) Act 1990:
S.2 renames the common-law offence of indecent assault as sexual assault. It is gender-neutral. Max punishment is 10 years imprisonment. If the victim was under 17, it’s 14 years.
R v COURT - (a) Must establish there was an assault; (b) Assault was sexual in nature (considered by right minded persons); (c) They intended the assault to be sexual (does not have to involve sexual gratification)
Court slapped a 12 yr old girl on her bum a few times. HELD: Assault is sexual in nature if it is capable of being considered sexual by right minded persons. Court considers relationship between the parties, why accused is behaving like that and how he started.
R v BERNIER - Bernier worked in a psychiatric home and touched male patients’ testicles and female patients’ breasts saying “You’re getting thin everywhere except here.” His motive was just amusement and not sexual gratification but this did not matter.

Question 5

Aggravated Sexual Assault

Answer 5

S.3(1) Criminal Law (Rape) Amendment Act 1990🡪 Aggravated sexual assault is defined as a sexual assault that either:
(a) Involves the use or threat of serious violence, or
(b) Causes injury, humiliation or degradation of a grave nature to the person assaulted.
S.3(2) Max punishment is life imprisonment.

Question 6

Other Forms of Rape

Answer 6

S.4 Criminal Law (Rape) Amendment Act 1990🡪 RAPE UNDER SECTION 4 IS A sexual assault that involves either:
(a) The penetration (however slight) of the anus or mouth by a penis, or
(b) The penetration (however slight) of the vagina by an object held/manipulated by another.
S.4(2) Max punishment is life imprisonment.

Excludes: 1, Digital penetration (fingers) of the vagina or anus and 2. Penetration of the anus with an object.

Question 7

Consent

Answer 7

All the rape and sexual assault offences include lack of consent. Consent requires a free and informed exercise of the will.
DPP v C - “consent” in s.2 Criminal Law (Rape) Act 1981 means ‘voluntary agreement or acquiescence to sexual intercourse’. Force or deception is not consenusal.
S.9 Criminal Law (Rape) (Amendment) Act 1990: A person does not consent to a sexual act if they:
1. Agree from force or threat of force to anyone 2. Are asleep or unconscious, intoxicated, not informed of the act or person involved 3. Have a physical disability does not let them communicate consent. Failure to resist does not mean there is consent.

Question 8

Lack of Capacity to Consent

Answer 8

R v Camplin - Intoxication/drunkenness may render him incapable of consenting.
R v JA - asleep/unconscious. Husband choked Wife until unconscious and put a dildo in her anus. She told police while she consented to the choking, she hadn’t consented to the sexual act. Her lacked capacity to consent while asleep.
- The victim may have been so young or mentally impaired to lack the capacity to consent.
- Jury decides whether the alleged victim understood the nature and quality of the accused’s conduct.

Question 9

Identity Fraud (Consent)

Answer 9

DPP v C - Female doesn’t consent to having sex with A if she believes she’s having sex with B. Circumstances may show he had reasonable grounds to consent. Girl had sex with her boyfriend then fell asleep and another guy went in and slept with her.

Question 10

Fraud regarding Nature of Sexual Act (Consent)

Answer 10

Divide: women didn’t understand they were consenting to sex vs. women understood they were consenting to sex

R v Flattery - Flattery told a woman with intellectual disability that he was doing surgery on her when he was having sex with her. There was no consent because of the fraud of the nature of the act.
Hegarty v Shine - Fraud as to man’s venereal health didn’t vitiate consent despite the fact that she would not have consented if she knew he had an STD.
R v Dica - Man gave a woman HIV so there was a conviction for inflicting grievous bodily harm.
R v Linekar - false promise to pay for sex did not cancel the woman’s consent.

Question 11

Sexual Act with Child under age of 15

Answer 11

Section 2 of the Criminal Law (Sexual Offences) Act 2006 and Section 16 Criminal Law (Sexual Offence) Act 2017
Section 2 makes it an offence to engage in a sexual act with under 15s.
DEFENCES:
S.2(3) Mistaken Age Defence🡪 reasonably mistaken, at the time of the alleged offence that they were at least 15 on the balance of probability.
S.2(4) Reasonable Person🡪 Whether, in all the circumstances, a reasonable person would have concluded that the child was at least 15 on the balance of probability.
S.2(6) Consent🡪 Consent of under 15 is NOT a defence.
* S.14 Criminal Law (Amendment) Act 1935: Under 15s cannot consent so consent is not a defence.
PG v Ireland - 15 yr old girl who consensually fondled a 14 y/o boy’s penis cannot defend herself by saying he gave consent. She could only say she honestly believed that he was 15 years old. This defence worked in this case.

Question 12

Sexual Act with Child under age of 17

Answer 12

Section 3 Criminal Law (Sexual Offences) Act 2006 and Section 17 Criminal Law (Sexual Offences) Act 2017
S.3(1)🡪 Offence to engage in a sexual act with a child under the age of 17
DEFENCES:
S.3(3) Mistaken Age Defence🡪 reasonably mistaken, at the time of the alleged offence that they were at least 17 on the balance of probability.
S.3(4) Reasonable Person🡪 Whether, in all the circumstances, a reasonable person would have concluded that the child was at least 17 on the balance of probability.

Question 13

Sexual Acts with 15 or 16-Year-olds

Answer 13

S.3(8) Criminal Law (Sexual Offences) Act 2006
If the child was 15 or 16, consent may amount to a defence if the accused is younger than the child or up to 2 years older, if they were not a person of authority over the child and if the relationship with the child was not intimidatory or exploitative.
Person in Authority🡪 Parent, step-parent, guardian, grandparent, uncle, aunt, person in loco parentis, person responsible for education, welfare or supervision of the victim (e.g. a babysitter or teacher).

Question 14

Incest

Answer 14

Punishment of Incest Act 1908 governs incest, which is sex with a close blood relative
- S.28 Criminal Law (Sexual Offences) Act 2017 amends it so, under Section 1 of the 1908 Act, it is an offence for a man to have sex with a woman knowing it is his mother, sister, daughter or granddaughter. Consent is not a defence.
- S.2 makes it an offence for a female over 17 to allow her father, brother, son or grandfather to have sexual intercourse with her knowing they have blood relations.
- S.3 Brother and sister include half-siblings but not step-siblings (blood relatives).
- Up to 3 years in prison

Reform: Should include sexual acts and step-relatives and should be gender neutral.

Question 15

Sexual Acts with a Protected Persons

Answer 15

S.21(1) Criminal Law (Sexual Offences) Act 2017 makes it an offence for a person to engage in a sexual act with a protected person knowing they are a protected person or being reckless as to whether they are.
S.21(2) makes it an offence to invite, solicit, counsel or incite a protected person to engage in a sexual act knowing they are a protected person or being reckless as to whether they are.
S.21(7) a ‘protected person’ is someone who lacks the capacity to consent to a sexual act by reason of a mental or intellectual disability, so they cannot:
1. Understand the nature or reasonably foreseeable consequences of that act, or
2. Evaluate relevant information to decide whether to engage in the act, or
3. Communicate consent.
Their protected status depends on the impact of the disability on their ability to decide to participate.

Question 16

Other Provisions of the Criminal Law (Sexual Offences) Act 2017

Answer 16

Section 3 is Obtaining and Providing a Child for the Purpose of Sexual Exploitation
Section 4 is Invitation to Sexual Touching
Section 5 is Sexual Activity in Presence of a Child
Section 6 is Causing a Child to Watch Sexual Activity
Section 7 is Meeting a Child for Sexual Exploitation
Section 8 is Using Info and Communication Technology to Facilitate Sexual Exploitation of a Child

Question 17

Theft

Answer 17

S.4 Criminal Justice (Theft and Fraud Offences) Act 2001
Dishonestly appropriating property without owner’s consent and with the intention of depriving its owner of it.
Max 10 years’ and unlimited fine.

Question 18

Actus Reus for Theft

Answer 18

Actus Reus is non-consensual appropriation of someone else’s property.
- Property s.2(1): “money and all other property incl. things in action and other intangible property.
- Appropriate s.4(5): usurp or adversely interfere with the proprietary rights of the owner.
- Ownership s.2(4): A person owns property if he merely possesses it. A person possesses
something if he enjoys actual or constructive control and has knowledge of such control.
R v Morris - Morris switched the price labels on 2 items in a shop and then bought the more expensive item at the cheaper price. Held appropriation.
Minister for Posts v Campbell - a person enjoys actual control if he personally can exercise physical control over it. A person is in possession of the contents of their own dwelling only if aware of what it contains. The item is available when he wants it.
Consent s.4(2): Must show the owner didn’t consent to the appropriation of his property.

Question 19

Consent under Theft of Property

Answer 19

Consent s.4(2): Must show the owner didn’t consent to the appropriation of his property.
Exceptions:
1. He believes he has the owner’s consent
2. He believes that he would have the consent if the owner knew of the circumstances
3. He believes that the owner cannot be discovered by taking reasonable steps.
Belief s.4(4): Need not be reasonable just honestly held. More unreasonable, less likely honestly.
Holding Property in Trust in Business for More than One Owner s.4(3): If he appropriates the property or sum representing it without owner’s consent and there is a deficiency in it and there is no satisfactory explanation, it is presumed that it was appropriated

Question 20

Mens Rea for Theft

Answer 20

Mens Rea for Theft is Dishonesty (lack of good faith) and Intention to deprive the owner of his property, even if temporarily.
AG v Grey - Grey’s employer was contractually bound to provide him with gas for domestic purposes but due to wartime rationing, he could not. In return, Grey took batteries from his employer’s premises for the gas. He should be acquitted if he honestly believed he was entitled to take them, even though his claim is not founded in law or fact.
DPP v Bowe - test for dishonesty is objective & judged by standards of ordinary reasonable men
S.4(4): In considering what a person honestly believed, jury may consider the presence/absence of reasonable grounds for such a belief with other relevant matters.

Question 21

Exceptions to Theft

Answer 21

S 5 of 2001 Act has Exceptions to Theft
1. Where a person reasonably believes while acting in good faith acquired the property
2. When part of the land has been severed under direction of trustee, personal representative, or liquidators.
3. Picking mushrooms, flowers shrubbery on land for personal use will not be theft
4. Cannot steal wild animals or carcase unless they are in someone else’s possession.

Question 22

Robbery

Answer 22

S.14 of Criminal Justice (Theft and Fraud Offences) Act 2001: A person is guilty of robbery if he steals and immediately before or at the time, uses force on any person or (seeks to) put someone in fear of being subject to immediate force (basically theft with threat/use of force). Max life imprisonment.
1. R v Dawson and James - 2 men bumped into victim and he lost his balance and one stole his wallet. This force was sufficient. Force does not need to be violent.
2. R v Clouden - Clouden grabbed a woman’s bag out of her hand. Use of force on her bag was enough. Resistance is not necessary.
3. DPP v Mangan - Mangam smashed the back car window with 2 elderly nuns inside to steal a handbag. Force does not need to be directed against the victim personally.
4. R v Hale - the victim was tied up after robbery. Robbery was seen as a continuous act.
Immediacy requirement: “then and there” seems strict, so the status of “continuous act” is unclear

Question 23

Burglary

Answer 23

S.12 of 2001 Act
When a person enters any building as a trespasser with the intent to commit an arrestable offence or after entering as a trespasser, they commit or attempt to commit such offence.
Arrestable offences - a person of full age and no previous convictions may be sentenced to five years imprisonment.
S.12(2) states a building INCLUDES an inhabited vehicle, vessel OR INHABITED temporary or moveable structure and applies whether or not the habitant is there.

Casey and Casey [2018] IECA 121 sets out the sentencing guidelines relating to burglary offences. years. Offences in the mid range of seriousness attract a sentence of 5-10 years. Offences in the high range of seriousness attract a sentence of 10-15 years.

Question 24

Actus Reus for Burglary

Answer 24

Actus Reus is Entry and Trespass
R v Ryan - Ryan got his head and arm stuck in a building. Court said entry does not need to be effective.
Barker v R - Barker asked to housesit forhis neighbour but stole items. He was given permission to enter the house for a particular purpose and his act exceeded this. A trespasser is someone who does not have permission to be in a place. A person knows they are a tresspasser or is reckless as to this.

Question 25

Mens Rea for Burglary

Answer 25

Intent to commit an arrestable offence at time of entry or AFTER ENTRY and knowledge or recklessness as to their status as a trespasser.

Question 26

Aggravated Burglary

Answer 26

S.13 2001 Act
When a person commits a burglary and at the time has with him any firearm, imitation firearm, weapon of offence, explosive. Max life in prison.
DPP must prove:
(1) The actus reus and mens rea of burglary and weapon possession
R v Murphy - a firearm must be “with” him. This goes to the idea of control of the object. It includes temporarily laying down the gun but not leaving the gun in the car.
R v Stones - Stones had a kitchen knife with him and claimed it was for self-defence. Reason for possession is not really important. Accused can’t claim they had an article with them for a reason other than burglary.
R v Bentham - where a person uses hand or finger under jacket to imitate weapon will not be sufficient as possession

Question 27

Handling and Possessing Stolen Property

Answer 27

S.17 2001 Act: Offence to knowingly or recklessly knowingly handle stolen goods dishonestly by receiving or arranging to receive the good or undertake, or assist in its retention, removal, disposal, or realisation by or for the benefit of another. You don’t need to physically handle the goods, you might arrange for its sale.
Max 10 years and unlimited fine.
S.18 2001 Act: A person who, without lawful authority or excuse, possesses stolen property knowing that the property was stolen or being reckless as to whether it was stolen, is guilty of an offence.
MAX IS 5 years and unlimited fine.

Question 28

Actus Reus for Handling and Possessing Stolen Property

Answer 28

Minister for Posts v Campbell - A person possesses something if he has actual or constructive control of something and has knowledge of such control.
- If a thief is in the course of stealing, he cannot be guilty of handling or possessing. This does not apply to a thief who part ways with the stolen property only to handle/possess it subsequently.
DPP v O’Neill - Robbery carried out by 3 men. Prosecution must prove someone other than the accused stole the property. If O’Neill was one of the thieves, he could not be convicted of this offence.
DPP v Fowler - Fowler and another person were in a store acting suspiciously. A staff member said they left in a hurry. The following day the accused tried to sell a saw back to the store. Staff member recognised it as being on sale the day before. Jury had to be satisfied beyond a reasonable doubt that Fowler didn’t steal the saw.

Question 29

Mens Rea for Handling and Possessing Stolen Property

Answer 29

• Must prove accused either (a) knew the property was stolen or (b) was reckless as to whether or not it was stolen.
• Reckless: must prove he was aware of a risk of it being stolen but proceeded with the conduct anyway
• Handling also requires the accused to have been dishonest.

Question 30

Deception Offences

Answer 30

S.6 2001 Act: A person who dishonestly, with the intention of making a gain for himself or another, or of causing loss to another, by any deception induces another to do/refrain from an act is guilty.
Actus Reus: Prosecution must prove
1. DECEPTION AND THAT
2. IT CAUSED ANOTHER TO DO/NOT DO SOMETHING.
Mens Rea: Prosecution must prove
3. DISHONEST ACT and
4. def intended to make a gain or cause a loss
S.7 2001 Act: offences to gain a service from another as result of deception.
Actus Reus: Requires
1. proof of deception and that
2. it caused another to render a service.
Mens Rea: Requires
3. proof of dishonest act and
4. def intended to make a gain or cause a loss.
Max Punishment: 5 years and unlimited fine.

Question 31

Making off without payment

Answer 31

S.8(1) 2001 Act: OFFENCE to knowingly and dishonestly leave without making payment when it is expected for services or goods. Not an offence if supply of goods or services is contrary to the law.
Actus reus - leaving without paying
Mens rea - knowing payment was required, intending not to pay, acting dishonesty
Up to 2 years and/or £3000

Question 32

Unlawful Use of a Computer

Answer 32

S.9 2001 Act governs unlawful use of a computer
- Actus reus: operated a computer within the state or caused to operate a computer within the state to make a gain or cause a loss
- Mens Rea: acted dishonesty and acted with the intention to cause a gain or loss
- Max 10 years and unlimited fine.

Question 33

False Accounting

Answer 33

S 10(1) 2001 Act governs false accounting
It is an offence to dishonestly with the intention of making a gain or causing a loss to:
1. Destroy, deface, conceal or falsify documents
2. Fails to make complete account of such document
3. Furnish information knowing it may be misleading
Falsifying involves making or concurring in making an entry that may be misleading or omit information.
Mens Rea - acted dishonestly and acted with intention of causing a gain or loss
MAX of 10 years imprisonment and unlimited fine

Question 34

Forgery

Answer 34

Sections 25-28 of 2001 Act
Governed by S.25(1) – offence to MAKE a false INSTRUMENT with the intention of using it to induce another to accept it as genuine and by reason of accepting it, do some act or omission to the prejudice of that person or another.
MAX 10-year imprisonment and unlimited fine

S.26 makes using an instrument which D knows or believes to be false an offence.
S.27 makes copying an instrument which D knows or believes to be false an offence.
S.28 makes using a copy of a false instrument which D knows or believes to be false an offence.

S.24 defines “instrument” as any document, formal or informal in character. It has a non-exhaustive list of instruments.
S.2(1) states “document” includes (a) a map, plan, graph, drawing, photo or record or (b) a reproduction in permanent legible form of information in non-legible form.
S.30 sets out the circumstances in which an instrument is false, including “if it purports to have been made in the form in which it is made by a person who did not in fact make it in that form”, etc.

Question 35

Criminal Damage

Answer 35

Criminal Damage Act 1991
S.2(1) 1991 Act: A person who, without lawful excuse, damages any property belonging to another, intending to damage such property or being reckless as to whether it would be damaged, shall be guilty.
MAX LIFE AND UNLIMITED FINE

S.1(1) - “damage” includes
1. To destroy, deface, and dismantle whether temporarily or otherwise make it inoperable or unfit for use.
2. Data - alter, corrupt, add to, erase or move to another storage or medium
3. Act within the state that damages property outside the state and vice versa.
4. Omissions causing damage

S.1(1) - “property” includes tangible nature, real or personal property, including money and animals capable of being stolen and data.

Question 36

(b) Damaging Property – Endangering Life

Answer 36

S.2(2) 1991 Act A person who, without lawful excuse, damages any property belonging to himself or another (a) intending to damage such property or being reckless as to whether it’d be damaged and (b) intending by the damage to endanger the life of another or being reckless as to whether the life of another would be endangered thereby shall be guilty of an offence.
- Can be guilty even if he damaged his own property and doesn’t have to be proved the other person’s life was actually endangered.
- Without lawful excuse not governed by s.6(2). Just general defences.
MAX LIFE AND UNLIMITED FINE

Question 37

Damaging Property with Intent to Defraud

Answer 37

S.2(3) 1991 Act: A person who damages property, whether belonging to himself or another, with intent to defraud shall be guilty of an offence. Recklessness as to defrauding not sufficient.
Arson: S.2(4) 1991 Act - If property was damaged by means of fire, the appropriate charge is arson.
Recklessness: S.2(6) 1991 Act - A person is reckless if he has foreseen the particular kind of damage that in fact was done might be done and yet has gone on to take the risk of it.

Question 38

Lawful Excuse under the Criminal Damage Act

Answer 38

S.6(2) A person has a lawful excuse:
(a) If at the time of the act alleged offence, he believed that the authorised persons consented or would have consented if they knew of the damage and its circumstances.
OR
(c) If he damaged the property to protect himself or another or property belonging to him or another or a right or interest in property which was or he believed to be vest in him or another and the acts constitute the offence were reasonable in the circs he believed them to be.
S.6(3) states it is immaterial whether a belief is justified or not if it is honestly held.
DPP v Kelly [2011]: CA held the reasonable requirement in s.6(2)(c) is to be assessed in the circumstances as he believed them to be, not as they actually were. Highly subjective.

Question 39

Incitement

Answer 39

You incite another to commit a crime if you PERSUADE, COERCE or otherwise CAUSE another to commit a crime.
1. Race Relations Board v Applin - Includes threats, pressure and persuasion.
2. AG v Capaldi - Capaldi charged with incitement to procure abortion. He Brought his gf to doctor. Doctor mentioned that Capaldi was taking for an illegal operation and Capaldi responded by saying there is lots of money to pay for it. Offering inducement or money is incitement, even if the person being incited does not commit the crime.
3. R v Whitehouse - The incited person must be capable of committing the crime.
4. R v Marlow - Marlow wrote book on cultivating and producing cannabis. This book incited a breach of the Misuse of Drugs Act.

Question 40

Soliciting Murder

Answer 40

1. S.4 Offences Against the Person Act 1861
   Offence to solicit/persuade a person to commit murder.
2. DPP v Gillane - the solicited person does not need to know the victim’s identity as long as there’s a definite intended Victim. If a group is solicited, it is not necessary to know all the details but just understand the nature.

Question 41

Inciting Hatred

Answer 41

Prohibition of Incitement to Hatred Act 1989
• S.2 makes it an offence to display, publish, distribute or show any material likely to stir up hatred. Includes hatred against a group/person on basis of race, colour, nationality, etc.
• S.3 Media outlets are included. Defences include they did not suspect the item would be broadcasted or would be likely to stir up hatred.
DPP v O’Grady - Dublin bus driver called a Gambian passenger a nig nog and asked him why he’s in the country and to go back to where he came from. No conviction because his words were not intended or likely to stir up hatred speech per se
DPP v Callan - A bus driver called a 12 yr old bus a nigger and told him to go back to Africa. The comment that black people in a nearby car should be drowned was important.

Question 42

Conspiracy

Answer 42

S 71 Criminal Justice Act 2006
R v Parnell - CONSPIRACY is a COMBINATION of people committing a wrongful act with a view to INJURE another even though if one person just did the act, it would be no more than a civil wrong.
ACTUS REUS: Agreement to commit the wrongful act
AG v Keane - no need for a definite plan to have been drawn up to commit the offence OR for the parties to meet. They just need understand the common design.
MENS REA:
R v Anderson - Mens rea is (1) Intention to agree to commit an unlawful act and (2) intention to further the plan under the agreement

Question 43

Defence of Impossibility

Answer 43

Allowed in UK, not in Canada
DPP v Nock - Nock conspired to make cocaine but they did not use the right ingredients. The UK allowed the defence of impossibility.
R v Sew Hoy - The UK here did not allow the defence of impossibility because the offence was committed when the agreement was made.
United States of America v Dynar - Canada rejected the defence of impossibility because conspiracy only requires the intention to commit an offence.
AG v Sullivan in Ireland made an obiter comment that this defence should not really be allowed.

Question 44

Conspiracy to Corrupt Public Morals

Answer 44

Shaw v DPP - Convicted after publishing book with details of prostitutes because it is a common-law offence.
Knuller v DPP - held that the judiciary has no power to create new offences like this.
SPUC v Open Door Counselling - a conspiracy to corrupt public morals is capable of occurring even where the act is lawful. ODC was advising women that it may be possible to get an abortion in the UK. The prosecution had to show the aim was to destroy the fabric of society but could not.
R v Cahill - Australia rejected this doctrine when Chinese men married Australian women to avoid deportation.

Question 45

The Law on Attempt of Crimes in Other Countries

Answer 45

AG v Thornton - ATTEMPT is an ACT done with specific intent to commit a particular crime
1. It must go beyond mere preparatory acts
2. The act must be sufficiently proximate to the commission of the crime
R v Campbell - Cambell tried to rob a post office but was seen loitering in the area and found three feet from door in possession of an imitation firearm. This was insufficient proximity to commit robbery in the UK.
R v Jones - Jones put a gun to a man’s head but the safety catch was on and his finger was not on the trigger. This was proximate enough to be attempt of murder in the UK.

Question 46

The Law on Attempt of Crimes in Ireland

Answer 46

Generally, Irish case law on proximity is not as generous.
AG v Thornton - Thronton brought a girl to the doctor and asked if there was an pill to interfere with the pregnancy but this was not proximate enough to be attempt.
AG v Richmond - Richmond was charged with attempted arson. The Gardai found him after he broke into a building, set a trail of wood and a bottle of oil in position. There was enough evidence of proximate acts to allow the case to be left to the jury.
AG v Sullivan - A midwife entered details of 2 fake births to get a bonus for delivering these babies. The nature of the offence was a continuing act so they were proximate in the circumstances.
1. Mere preparatory acts are insufficient
2. It is not a defence to later abandon the course of action and not do the offence
3. Defence of impossibility cannot be used for attempted offences since the Mens Rea: Intention ONLY. Recklessness will not suffice.

Question 47

Attempted Murder and Mens Rea

Answer 47

DPP v Douglas and Hayes - requisite mens rea is intent to kill FOR ATTEMPTED MURDER. Intent to commit serious harm would only ground an attempted assault charge.

Question 48

Law Reform Commission (2008) Recommendations on Inchoate Offences

Answer 48

1. We should codify what is sufficiently proximate for attempt offences and it should be a question of law.
2. Impossibility should not be allowed for attempt offences.
3. The MR of conspiracy should require a person to intend to carry out a plan
4. The common law offence of conspiracy to corrupt public morals be abolished.

Question 49

Defences

Answer 49

1. Duress
2. Necessity
3. Lawful Use of Force
4. Provocation
5. Infancy
6. Intoxication
7. Insanity
8. Diminished Responsibility
9. Automatism
10. Mistake
11. Unconstitutionality

Question 50

What Happens when a Defence is Raised for an Offence?

Answer 50

The burden of proof is on the prosecution to disprove it beyond a reasonable doubt except for (1) Insanity (2) Diminished responsibility (3) Unconstitutionality.

Question 51

Duress

Answer 51

AG v Whelan - Whelan was charged with receiving stolen money. He said he was threatened with extreme violence.
Objective Test:
1. The threat of immediate death or serious violence was great enough to overbear the ordinary power of human resistance that it is justified.
2. The overpowering of the will was so operative at the time the crime was committed, and
3. If there was reasonable opportunity for the will to reassert itself, no duress will be allowed
- There is an immediacy requirement, proximity requirement and counteracting the threat
- NOT a defence for murder (DPP v Patchell).
R v Howe - UK objective test: “whether a person of reasonable firmness with the characteristics of the accused would’ve acted in the same way as the accused did”.

Question 52

(a) Immediacy Requirement under Duress

Answer 52

R v Hasan - Threat must be such that they reasonably expect it to follow immediately or almost immediately when they did not comply or resisted.
R v Hudson and Taylor - H&T witnessed a man attack another. At his trial, they failed to identify him and was charged with perjury. They sought to raise the defence of duress because the man’s gang said he would cut them up if they snitched. They were there staring when they were testifying. The defence was allowed because the threat could have followed after the court. Duress defence applies if State protection would be ineffective.
Williams (1983) criticises this as weakening immediacy req and holds it wouldn’t be followed today.

Question 53

(b) Proximity of Relationship under Duress

Answer 53

R v Conway - if the threatened person isn’t a member of the accused’s immediate family, then it should be someone for whose safety they could reasonably feel responsible.
R v Martin - Martin drove son to work whilst disqualified. His son overslept and his wife with suicidal tendencies said she would kill herself if the son lost his job. He could use the defence of duress. He acted in a manner proportionate to the threat he faced from his wife’s threat of suicide. The Courts look at the proportionality of the act.

Question 54

Self-Induced Duress

Answer 54

Ireland has yet to consider if duress is available to someone who voluntarily exposes himself to a risk:
DPP (Northern Ireland) v Fitzpatrick - Member of IRA charged with robbery. Court rejected defence of duress as it was self-induced since he associated himself with violent criminals.

Question 55

LRC Report on Duress

Answer 55

1. Duress should not be a defence to murder and attempted murder or for those who voluntarily expose themselves to criminal organisations.
2. For Duress, (a) a threat should involve serious harm or death, (b) the response should be objectively assessed, (c) looking at the nature & seriousness of the threat and (d) failure to seek protection should not automatically forbid the defence.

Question 56

Necessity

Answer 56

Involves committing a crime to avoid a greater evil.
R v Loughnan - Austrlian Test:
1. The crime was to avoid consequences of irreparable evil on the accused or the people they need to protect
2. Def honestly believed on reasonable grounds that he was in a situation of immediate peril
3. The act to avoid imminent evil was proportionate to the evil avoided
R v Conway - necessity was a defence where the threat was directed at a third party. He could have used duress also.
R v Quayle - Man grew cannabis but he could not say it was necessity for pain relief. There was no immediate danger.

Question 57

Necessity and Murder

Answer 57

R v Dudley and Stephens - Necessity is not a defence to murder unless it is medically necessary to prefer one life over another as in Conjoined Twins Case. With the conjoined twins, both would have died if there was no surgery but one was sure to die with surgery.
AG v X - necessity justified abortion where there was a real and substantial risk to life of mother.

Question 58

Lawful Use of Force under STATUTE

Answer 58

S.18-20 Non-Fatal Offences Against the Person Act 1997
S.18: Okay to use reasonable force in the circumstances as you believe them to be, but it should be proportional to the threat.
You cannot use force on Gardai or if you caused the situation.
S.19: OKAY to use reasonable force for a lawful arrest in the circumstances as they believed them to be
S.20: A person may take preparatory steps in using lawful force. Courts look at chances to avoid the use of force.

1. To protect yourself or another from injury, assault, detention caused by crime
2. To protect yourself or another, with their permission, from trespass to the person
3. To protect your or another, with their authority, property from appropriation, destruction or damage caused by crime
4. To prevent crime or a breach of the peace.

Question 59

COMMON LAW Lawful Force

Answer 59

Full defence or reduction to manslaughter depending on the necessity and proportionality
1. AG v Keatley - TEST
* Accused must believe that force is necessary and if it is excessive, it becomes assault (proportionality).
2. AG v Coffey - Defence only works for self-defence motives
3. DPP v Doran - It may be possible to raise it if deceased acted disproportionately

AG v Dwyer - Dwyer thought the deceased had an object he was hit with and was fearful so he stabbed the deceased with a knife. He was convicted of murder.
If the defendant BELIEVED the excessive force was NECESSARY, he could not have the INTENTION necessary for murder under s.4 CJA 1964 (subjective standard) so he is guilty of manslaughter.
In the UK, you are either guilty of murder of acquitted (Palmer v R).

Question 60

Burglary and Self-Defence

Answer 60

DPP v Barnes - A burglar was attacked by homeowner. He used fatal force in self-defence and killed the owner. He must be guilty of at least manslaughter even if it was necessary to use fatal force in self-defence.
Owners of houses cannot kill burglars just because they are invading and stealing but they also do not have to retreat if they find a burglar in the house.
- Under the Criminal Law (Defence and the Dwelling) Act 2011, a homeowner can use force (even causing death) if they believe a person has entered as a trespasser to commit a crime and if they believe the force is reasonable in the circumstances.
- It can be done to protect yourself or another or property or to prevent crime.
- If it is someone doing a lawful function, you cannot use force or if you cause the situation

Question 61

Provocation

Answer 61

Reduces murder to manslaughter. Simply a factor for other crimes in sentencing.
UK in DPP v Camplin (fry pan) said did the defendant behave like a reasonable person would in the same situation?
Ireland’s Subjective Test: DPP v MacEoin [1978]
1. The accused was not provoked to the point that he loses self-control when he did the act, considering his temperament, character and circumstances or
2. The force used was unreasonable and excessive considering the provocation.
- Reaction to provocation should be reasonable. The defence can still work where there is an intention to kill if it comes from sudden loss of control.

DPP v Kelly - There must have been a mind that had sudden and temporary loss of self-control when the act took place. It was unforeseen. The jury can consider his peculiar history and personality.
McAuley and McCutcheon (2000) criticised the subjective nature of the first limb: If a person is a white supremacist and sees a black person speaking to a white person first and he gets enraged and kills the black person, he is seen as provoked but should not get the law’s compassion. This is morally repugnant so it should have policy limitations.
DPP v Davis - acknowledged that the defence of provocation is based on policy considerations if it promotes moral outrage. People have a certain amount of self-control.

Question 62

Self-Induced Provocation

Answer 62

Edwards v The Queen - Edwards stabbed a man he was blackmailing. A blackmailer cannot rely on the defence of provocation it was predictable that their victim would react aggressively. If that reaction was extreme, the jury can consider whether to allow the defence of provocation.

Question 63

Delayed Reaction and Domestic Violence

Answer 63

DPP v Donoghue - The victim of abuse in Ireland got a suspended sentence.
R v Ahluwalia - time gap between enduring prolonged domestic violence and reacting may show other motives like revenge. \It is not a rule of law but depends on evidence.
DPP v Delaney - It is necessary for “sudden and total loss” that the reaction follow immediately upon the act. There cannot be time for passions to cool.

Question 64

LRC Recommendations on Provocation

Answer 64

1. The test should be judge by ordinary community standards of self-control and proportionality.
2. Terms like ‘objective’ and ‘subjective’ should be avoided entirely.
3. Mental order issues should be outside provocation.
4. Statute should deal with domestic homicide cases.

Question 65

Infancy

Answer 65

S.52 Children Act 2001: No child under 12 can be charged with any offence. However, child under 10 or 11 may be charged with murder, manslaughter, rape, rape under s.4 and aggravated sexual assault.
S.76C: If a child under 14 is charged, the court may dismiss the case on its merits if, having due regard to their age, level of maturity, it determines they didn’t have a full understanding of what was involved in the commission of the offence.

Question 66

Intoxication

Answer 66

AG v Manning - Mere drunkenness is not a defence.
R v Lipman - Intoxication by drugs and alcohol are treated the same. Lipman took LSD and woke up strangling his gf. Intoxication can defeat mens rea when a crime requires specific intent (murder) but not basic intent (assault).

DPP v Beard - if person is so drunk he can’t form the intent required, he could not be convicted of a crime WHICH IS COMMITTED ONCE INTENT IS PROVEN. Other crimes require recklessness. For murder, he can be guilty of manslaughter.

DPP v Majewski - Majewski was in a pub fight and assaulted several police men while intoxicated. Voluntary intoxication amounted to sufficient recklessness to cause harm which satisfied the mens rea. Once a person admits to this, the DPP does not have to prove recklessness. For policy safety policy, intoxication cannot be a defence.
- Critiqued regarding the presumption of innocence

Question 67

What happens if you succeed to argue Intoxication

Answer 67

1. Murder charge is reduced to manslaughter
2. Acquittal for other crimes

Question 68

Dutch Courage to gain Intoxication for an Offence

Answer 68

DPP v Reilly - drank poitin all night and killed baby without remembering. He was convicted of manslaughter. The courts must also protect the public so if a person drinks alcohol which puts him in a situation that will likely increase his chances of committing acts of violence than if he was sober, the Court will not excuse if actions.
AG for NI v Gallagher - Gallagher decided to kill his wife and drank whiskey to do it. If a defendant drinks to commit a crime, they cannot plead the defence of intoxication.
R v Kingston - Kingston had his paedophilic tendencies under control but someone spiked his drink and left him with a 15-year-old. He knew his conduct was wrong and would not have done it if sober so he was convicted.

Question 69

What are Specific Intent Crimes vs Basic Intent Crimes

Answer 69

Specific Intent Crimes: Murder, theft, robbery, attempted crimes.
Basic Intent Crimes: Manslaughter, rape, assault, kidnapping,

Question 70

Insanity (Statute)

Answer 70

Criminal Law (Insanity) Act 2006 - Case law just explains the concepts
S.4 Fitness to Plead prevents a person from even bring put on trial if they cannot understand the nature or course of the proceedings because of a mental disorder.
S.5 INSANITY DEFENCE: Requires evidence by a consultant psychiatrist that the accused suffered from a mental disorder and did not understand the 1. nature and quality of the act 2. did not know the act was wrong OR 3. could not refrain from committing the act. They will be not guilty by reason of insanity.
S.1 Mental Disorder: Any mental illness, mental disability, dementia or disease of mind but not intoxication

Question 71

Insanity (Common Law)

Answer 71

R v M’Naghten - Was the accused, at the time of committing the offence, labouring under such a defect of reason from disease of the mind that he did not know the nature and quality of the act or that it was wrong?
Doyle v Wicklow County Council - Doyle believed eating meat was wrong and burned down an abattoir as he could not resist. The central test of insanity is whether the person acts under his own free will or some external force?
R v Kemp - Kemp suffered from arteriosclerosis making him lose consciousness. He attacked his wife with a hammer but was not conscious of picking it up or hitting his wife. His condition was a disease of the mind looking at mental faculties of reason, memory and understanding. Expert evidence is important
Bratty v AG for NI - Epilepsy is a disease of the mind
- PERSON will then be sent to the CENTRAL MENTAL HOSPITAL for assessment

Question 72

What Defence can a Diabetic Use?

Answer 72

1. It depends on type – can be insanity or automatism depending on whether it is an internal or external factor
   R v Quick - Quick had hypoglycaemia (deficiency of blood sugar levels). He needed to take insulin but took too much & attacked someone. It was caused by the external factor of insulin so AUTOMATISM was the proper defence.
   R v Hennessy - Hennessy had hyperglycaemia (blood sugar levels too high) and committed an offence. This act was induced by an internal factor so INSANITY was the proper defence.

Question 73

Diminished Responsibility

Answer 73

Introduced by Criminal Law (Insanity) Act 2006
S.6 - Applies where a person is tried for murder and the jury or the Special Criminal Court finds they (a) did the alleged act, (b) was suffering from a mental disorder at the time and (c) the mental disorder means they cannot plead insanity, but it substantially diminished their responsibility, they will be guilty of manslaughter on the ground of diminished responsibility.
DPP v Heffernan - Accused bears the burden of proving the defence on the balance of probabilities. This does not violate the presumption of innocence and is constitutional since It is only a burden of persuasion regarding his entitlement to avail of the partial defence.

Question 74

Automatism

Answer 74

R v Quick - automatism is a malfunctioning of the mind of transitory effect caused by external factors (violence, drugs, anaesthetics, alcohol) applied to the body that cannot be fairly said to be due to disease. Ordinary stresses of life is not sufficient. Too much insulin caused accused to attack but he could plead automatism.
O’Brien v Parker - Loss of control must be total and not partial. It must be clear the action was done to his body without any control of his mind.
R v Falconer - Falconer was afraid of her husband because he molested her daughters and shot him but could not remember doing it. She was in a dissociative state and not in control. The jury could decide on whether to allow the defence.
R v Burgess - Sleepwalking was a disease of the mind since expert evidence stated that it was a pathological condition that was susceptible to medical treatment. Thus, appropriate defence was insane automatism

Question 75

Mistake

Answer 75

DPP v Healy - Ignorance of the law is no defence to a criminal charge. Otherwise, it would put a premium on ignorance. Mistake as to the facts of an incident may be a defence. but it must be an HONEST MISTAKE like consent for rape.
AG v Dwyer - If the accused honestly uses excessive force in circumstances of self-defence or defence of others it will be a defence to a charge of murder (reduced to manslaughter).
S.2 Criminal Law (Rape) Act 1981 - honesty is more important than reasonableness for mistake of consent for rape.

Question 76

Unconstitutionality

Answer 76

Last resort because the presumption is that statutes are constitutional.
McGee v AG - McGee wanted to import contraception which was an offence under Criminal Law (Amendment) Act 1935. Having another baby would have threatened her life so the Act breached her right to bodily integrity and marital privacy.
Norris v AG - where a statute appears unconstitutional, it may be upheld for policy reasons.
DPP v Damache - S.29(1) Offences Against the State Act 1939 was struck down as unconstitutional on the grounds it permitted a warrant to be issued by a person who was not independent - a Garda Detective Superintendent who was participating in the investigation.

Question 77

Constitutional Vagueness

Answer 77

King v AG - prohibition of Loitering was unconstitutional as it was too vague.
DPP v Cagney - Hardiman J doubted the constitutionality of endangerment in s.13 Non-Fatal Offence Against the Person Act 1997. A person is entitled to know or be able to find out with some considerable certainty what precisely is prohibited and what is lawful.