Criminal Law - ALL

Question 1

In which court do all criminal offences start?

Answer 1

Magistrates’ Courts. More serious offences then progress to the Crown Court.

Question 2

How do the criminal and civil systems in England and Wales differ?

Answer 2

The systems have distinct and separate systems and jurisdictionsThey have different:* courts* judges* penalties* consequences

Question 3

Who brings a prosecution in England and Wales?

Answer 3

Generally the state in the form of the Crown Prosecution ServiceOthers * Local authorities, such as county councils and cities* Certain government agencies, e.g. the Environment Agency, the power to prosecute certain crimes like polluting rivers.* Private citizens* Organisations* Charities (e.g. the Royal Society for the Prevention of Cruelty to Animals)

Question 4

Why are criminal cases often called “R v [defendant]”

Answer 4

The CPS prosecutes on behalf of the Crown (‘Regina’). Therefore, a criminal case is named Regina versus’, ‘Regina and’, or ‘The Crown and’ in court. This is very often shortened to ‘R. v.’

Question 5

What is the difference between tort and criminal law?

Answer 5

Tort * Actions are brought in the civil courts. * Aim: to compensate the claimant for the tort (compensation) or to prevent the tort from reoccurring (injunction).Criminal* Actions are brought in the criminal courts (rules are far more strict). * Aim: also to compensate for and prevent criminal acts, the courts have other objectives, e.g., punishment (imprisonment, fines), incapacitation (imprisonment, curfew), deterrence, and rehabilitation.

Question 6

What is the burden of proof in a criminal case?

Answer 6

• The prosecution has the burden of proving that a crime has been committed.* The defendant does not need to prove anything (note, the burden reverses for certain defences and excuses)* Burden: who

Question 7

How does the role of the prosecution and the role of the defence differ in practice?

Answer 7

• Prosection: set out all of the elements of the offence as clearly as possible and to direct the jury to the evidence that shows that each element of the offence is made out. * Defence: cast doubt upon that evidence.

Question 8

When does the burden of proof reverse?

Answer 8

If the defendant wishes to raise: * certain defences e.g. insanity (must prove it on the balance of probabilities).* certain excuses i.e. within the elements of the offence itself, there is an exception that negates the offence. Once the prosecution has made out the primary elements, it is for the defendant to prove on the balance of probabilities (it is more likely than not)-that they fall within that exception.

Question 9

When does the defence have the evidential burden?

Answer 9

There are certain defences, such as self-defence, that the defendant must raise for the court to consider. However, once the defendant raises the defence, the prosecution has the burden of proof of disproving it

Question 10

It is illegal to be in possession of certain knives in a public place without a reasonable excuse. D walks from their farmhouse to their field along a public highway with a kitchen knife. D intends to use the knife to cut some string on a hay bale. While D is walking down the road, the police stop them. What does each party have to prove?

Answer 10

• Prosecution: only have to prove that D had a knife in a public place. * Defence: must prove that it was reasonable for them to walk along the highway carrying the knife. If they cannot, D is guilty of the above offence.

Question 11

Why is the standard of proof higher In the criminal courts?

Answer 11

Because the implications of a conviction in the criminal court are more severe than in a civil case: the defendant will have a criminal record and may lose their liberty.

Question 12

What is the standard of proof in a criminal case?

Answer 12

• Prosecution must prove beyond a reasonable doubt that the defendant committed the offence. * This is not precisely defined but judges often tell juries that they must be sure the defendant committed the offence to convict them. * Where the burden of proof is reversed, the civil standard is used (i.e., ‘on the balance of probabilities’ or ‘it is more likely than not’ that the defendant has made out the defence).* Standard: how strong

Question 13

D takes V’s television. At the time, D was hallucinating because of an illness. What must be proven by the defence and the prosectution?

Answer 13

• Prosecution: prove beyond a reasonable doubt that D dishonestly took V’s television with intention to permanently deprive them of it. * Defendant: once the prosecution has made their case, show only that it is more likely than not that they were hallucinating at the time.

Question 14

What is the criminal equation?

Answer 14

Actus Reus + Mens Rea - Defence = Guilty

Question 15

What type of crimes do not require a mens rea?

Answer 15

Strict liability offences. The offence is committed if the actus reus is complete.

Question 16

What is the requirement of concurrence in proving criminal liability?

Answer 16

A criminal offence usually requires the actus reus and mens rea to occur at the same time.

Question 17

An offender has a deep hatred of a minority group and they are driving their car carelessly and accidentally hit a pedestrian whilst trying to change the channel on the radio. The pedestrian dies instantly upon impact. Concerned, the offender jumps out of the car to check if the pedestrian is dead or seriously hurt. Now once out of the car, the offender sees that the person they hit happens to be a member of the minority group that they despise. The offender then kicks the victim’s head, intending them further serious harm. Has the offender committed murder?

Answer 17

There are many offences being committed but murder is not one of them. The actus reus of murder happens when the offender hit the victim with the car, at this point, they do not have mens rea. Similarly, when the offender kicks the victim in the head, at that point, they have the mens rea of murder but not the actus reus. Whilst the offender will face many serious charges, murder is not going to be one of them.

Question 18

If the prosecution has made out the actus reus and the mens rea of a crime, can a defendant escape liability?

Answer 18

• A defendant may argue that they are not culpable or less culpable if a defence is available to them.* Defences can be complete (resulting in acquittal) or partial (resulting in conviction of a lesser offence).

Question 19

What is the actus reus?

Answer 19

The physical act. It can be broken down into three possible elements (not all elements will be required for every offence): * Conduct (required by all) - These are the physical acts or omissions by the defendant that make the defendant liable for the offence. * Circumstances - These are the facts that must exist for a defendant to be liable. * Result - This is the outcome that must occur for the offence to be committed.

Question 20

Which 4 types of behaviour can amount to conduct for actus reus?

Answer 20

• Positive act e.g. hitting someone* Omissions (rare - arises if the defendant has a duty to act and they breach that duty by failing to act sufficiently)* Possession e.g. a weapon* Entering certain situations e.g. being a member of a terrorist organisation

Question 21

In what situations will an omission to act amount to the actus reus required for a criminal offence?

Answer 21

Where:* There is a duty on behalf of the defendant to act and * The defendant breached that duty by failing to act sufficiently. A duty to act will arise: * Under statute, such as an obligation to stop at the scene of an accident (note, the definition of the offence would require a positive action)* Where there is a special relationship, such as parent-child (e.g. neglect) or doctor-patient* Where the defendant voluntarily assumed a duty of care for the victim (e.g. volunteering to look after a sick relative and then neglecting and starving them)* Where a duty is imposed by contract, such as passenger railway guard * Where the defendant created a dangerous situation and is aware of having done so.

Question 22

If a defendant creates a dangerous situation, when will they be liable for a criminal offence by omission to act?

Answer 22

If they are aware they have created the situationExample: D falls asleep with a lit cigarette and it sets fire to bedclothes. The smoke wakes them and they go to another room and leave the fire there. They will be liable.

Question 23

Is there a general duty to act when others are in trouble?

Answer 23

• No, for an omission to be a criminal act, there must be a duty to act. There is no general Good Samaritan law requiring people to help others in trouble.* A defendant is not liable for the failure to help or rescue another person unless they have a duty to do so-no matter how easy it would have been to render help

Question 24

When are circumstances relevant to whether a defendant has the requisit actus reus?

Answer 24

Certain circumstances must exist for an offence to be committed. Example: a defendant who damages a car commits the offence of criminal damage only if the car belongs to someone else. A defendant cannot cause criminal damage to their own car.

Question 25

How might the exam test the circumstances element of actus reus?

Answer 25

• A person damaging their own property. They are free to do this. * Don’t jump to the conclusion that they have committed criminal damage if they smash a car window - it will only be criminal damage if it belongs to someone else (or is co-owned with someone else)

Question 26

What are result crimes?

Answer 26

Crimes that require a certain outcome for the offence to be committed e.g. ABH/GBH require bodily harm, murder requires deathResult crimes require causation* Factual causation: ‘but for’ test (including acceleration of result)* Legal causation: substantial and operative cause

Question 27

When is causation relevant in criminal law?

Answer 27

• When the crime requires a certain result to be committed. * The prosecution must build a link from the defendant’s conduct to the outcome and satisfy the tests for causation.* There is a two-stage test of factual and legal causation and the tests are cumulative so both must be satisfied to establish a link

Question 28

What is factual causation in criminal law?

Answer 28

The ‘but for’ test. * Court asks whether the result occurred ‘but for’ the defendant’s conduct e.g. in the case of murder, the victim would not have died but for the conduct of the defendant. * Note, If there is more than one cause or even if the defendant’s action slightly accelerates the result, there is sufficient causation in criminal law. Example: D poisons V’s food. V dies from a heart attack unrelated to the poisoning. D is not guilty of murdering V because the poisoning was not the cause of V’s death. D may well be guilty of other offences (e.g. attempted murder and administering a poison), but these would not be result offences.

Question 29

If there is more than one cause of an outcome, can a defendant be liable for a result crime?

Answer 29

Yes, if there is more than one cause or even if the defendant’s action slightly accelerates the result, there is sufficient causation in criminal law. Example: * V is suffering from a neurodegenerative disease. D poisons V’s food. D’s poisoning of V caused V to die a day earlier than V would have died but for the poisoning. D would be guilty of murder, as the poisoning accelerated V’s death. * Both D and C are poisoning V’s food without each other’s knowledge. The doctors do not know which poison accelerated V’s death. Both D and C could be guilty of murder.

Question 30

What is legal causation in criminal law?

Answer 30

Legal causation prevents a conviction where factual causation (but for) is met, but other factors, such as lack of foreseeability, would make such a conviction unfair. * The defendant’s action must be the substantial (i.e. more than minimal) and operative (i.e. no break in chain) cause* Note, the thin skill rule appliesExample: D breaks V’s window by kicking a football into it. V cuts their hand on the glass. The cut causes V to contract blood poisoning. V dies. It is not foreseeable that D’s kicking the football would cause V’s death. D is factually responsible for V’s death, as V would not have died but for D breaking the window. However, the lack of foreseeability breaks the chain of causation.

Question 31

What is the substantial cause in the test for legal causation?

Answer 31

The action must be substantial i.e. the defendant’s role must be more than minimal, slight, or ‘trifling’. It does not have to be the only causeExample: if a group of people are beating up a victim, they all are equally responsible for the wounds that result. How ever, if the defendant was not part of the group and simply brushed the victim before the group attacked that would not be sufficient.

Question 32

What is the operative cause in the test for legal causation?

Answer 32

The defendant’s action must be operative i.e. no break in causation. If the actions of someone or something else intervenes between the defendant’s act and the result, the defendant will not be liable.The chain is broken by an intervention by:* the defendant if there is a new act e.g. an infection* a natural event if the defendant and a reasonable person would not have foreseen the natural event* the victim if their actions are ‘so daft as to be unforeseeable’ (note, thin skull rule applies)* a third party if their actions are free, deliberate and informed.Example: D is having a fistfight with V. C sees them fighting and joins in, drawing a knife and stabbing V in the heart, resulting in V’s death. C’s actions were free, deliberate, and informed and so will break the chain of causation between D’s act and V’s death.

Question 33

What is the thin skull rule in legal causation?

Answer 33

• That the defendant causes more damage than one would expect because of the vulnerabilities of the victim does not negate causation - the defendant will still be responsible. * Likewise, a victim suffering greater harm because they have a pre-existing medical condition or refuse medical treatment on religious grounds will not break the chain of causation.* A defendant takes their victim as they find them

Question 34

Can a defendant break the chain of causation?

Answer 34

Yes, if the intervention is a new act. Example: A stabs B. A then inadvertently infects B with a disease. B dies from the disease and not from the stab wound. The infection breaks the chain of causation.

Question 35

Can a natural event break the chain of causation?

Answer 35

Yes, if defendant and a reasonable person would not have foreseen the natural event. Example: A punches B and leaves him unconscious in a wood. There is a freak storm and B is struck by lightning and killed. A would be liable for the assault, but not the death. The unforeseen storm breaks the chain of causation.

Question 36

A woman is walking alone in London and an attacker pulls a knofe on her. She runs into the road and is injured. Did her actions break the chain of causation?

Answer 36

Unlikely. She was confronted with unexpected and terrifying conduct. Most victims don’t respond rationally in those situations. To break the chain it would need to be so daft as to be unforseeable

Question 37

Can a victim break the chain of causation?

Answer 37

Yes, if:* defendant and a reasonable person would not have foreseen the victim’s act and * the victim’s act is voluntary. * the victim’s actions must usually be ‘so daft as to be unforeseeable’. Examples: * A shouts ‘Boo!’ at B. B runs out of the house and across a three-carriage motorway, and B is killed by an automobile. B’s act breaks the chain of causation.* A gives B an apple, telling B it is poisoned. B eats it anyway and dies. B’s act breaks the chain. Note, the thin skull principle still applies. If A stabs B, a Jehovah’s Witness, and B dies because she will not accept a blood transfusion, A is responsible for B’s death. B’s refusal does not break the chain of causation because such a refusal is foreseeable.

Question 38

Can a third party break the chain of causation?

Answer 38

Yes, if the third party’s (e.g. a bystander) intervention is free, deliberate, and informed. Example: A commits a robbery. Police officers arrive at the scene. A holds up B as a human shield and B is shot by a police officer. The police officer’s act does not break the chain of causation.

Question 39

A defendant and the victim are boyfriend and girlfriend. They are arguing in the street and in the course of the argument the boyfriend pushes the girlfriend and she falls back onto the ground and twists her wrist. At this point, a person who has just robbed a bank comes running by being chased by the police. The robber grabs the girlfriend from the pavement and drags her into the nearest house where he takes her hostage. The robber then kills the girlfriend. Did the robber break the chain of causation?

Answer 39

Yes, the robber’s act is free deliberate and informed. He’s not compelled to take her hostage, he acts intentionally and he knows what he is doing. This would break the chain of causation from the boyfriend’s act of pushing the girlfriend to her eventual death.

Question 40

A third party sees the defendant hitting the victim, the third party steps in between the defendant and the victim to shield the victim from further blows. In doing so though they push the victim backwards who trips, bangs their head on the pavement and sustains a cut to the back of their head. Does the third party’s actions break the chain of causation?

Answer 40

The third party’s intervention does not break the chain of causation here as it is not free, deliberate and informed. They are acting from a sense of obligation to protect the victim, so the defendant could still be liable for the cut to the head.

Question 41

Can medical treatment break the chain of causation?

Answer 41

Medical treatment is very unlikely to break the chain of causation. * It will only do so if it is so independent and potent as to make the original wound the background. * Ordinary malpractice is not enough, it must be gross malpractice to break the chainExample: A gets into a fight with B and B is hospitalised as a result. Whilst treating B for his injuries, a doctor gives B an experimental, unlicensed drug, and B dies as a result. The doctor’s actions break the chain of causation.

Question 42

What is mens rea?

Answer 42

The mental element of an offence. It is the state of mind the defendant must have at the time of the actus reus in order to be guilty of the offence. * Note, motive is not the mens rea.* The most common form is intention (may be direct or indirect). Some offences require specific intention * Other forms are recklessness and negligence* No mens rea is required for strict liability offences* Corporate liability uses the identification doctrine to establish mens rea* Mens rea can be transferred

Question 43

What is the difference between mens rea and motive?

Answer 43

Motive is the reason that a defendant commits an offence. It may provide evidence that a defendant might have the necessary mens rea, but motive in and of itself is not an element of any offence in English law.

Question 44

What is the mens rea of intention?

Answer 44

• A common form of mens rea. It can be satisfied in two ways: direct intention and indirect (or oblique) intention. * Specific intent offences specify intention as the only form of mens rea (e.g. murder)

Question 45

What is direct intention?

Answer 45

• Direct intention means ‘aim or purpose’. The defendant will satisfy the mens rea if the act, circumstance, or outcome specified in the offence is their aim or purpose. * Direct intention is the most common form of intention.Example: D is charged with battery for hitting V. The mens rea of battery is intentionally or recklessly applying force onto another. If it was D’s aim or purpose to hit V, they had direct intention and thereby satisfy the mens rea of the offence.

Question 46

What is indirect (oblique) intention?

Answer 46

For indirect intention to arise, the result of a defendant’s act must be: * A virtually certain consequence of their conduct (objective); and * Realised by the defendant as being virtually certain (subjective). Indirect intention is available only for specific intent offences (where recklessness is not available e.g. murder s18 GBH) and direct intention can not be established. It never applies to basic intent offences. Example: D fires a bullet into a crowd, intending to scare the people away from the area. The bullet strikes a member of the crowd, killing them. Although D did not intend to kill or injure anyone, by firing the bullet into a crowd, it was a virtual certainty that death or serious injury would occur. As long as D realised it was a virtual certainty, they have indirect intention to kill or cause serious harm and therefore satisfy the mens rea for murder.

Question 47

What is a specific intent offence?

Answer 47

• An offence that specifies intention as the only form of mens rea (e.g. murder or s18 GBH or any inchoate offence) * These offences can be committed only intentionally, unlike others which can be committed either with intention or recklessly (e.g. battery). Example: D is in a shop and puts an item in their basket intending on paying for it. D sees an old friend outside the shop and runs to see them, forgetting to pay for the item. D is not guilty of theft, as they had no intention of permanently depriving the shop of the item without paying for it.

Question 48

What is a basic intent offence?

Answer 48

Offences which can be committed either intentionally or recklessly are known as basic intent offences.

Question 49

What are the 8 specific intent offences?

Answer 49

• Attempt * Encouragement and assistance* Murder* Wounding or causing GBH with intent (s18)* Theft* Robbery* Burglary (s9(1)(a))* Fraud by False Misrepresentatino

Question 50

What is the intent required for attempt?

Answer 50

Specific intent: to complete the crime attempted

Question 51

What is the intent required for encouragement and assistance?

Answer 51

Specific intent: that the crime encouraged or assisted would be committed

Question 52

What is the intent required for murder?

Answer 52

Specific intent: to kill or cause GBH

Question 53

What is the intent required for wounding or causing GBH with intent (s18)?

Answer 53

Specific intent: to wound or cause GBH or to resist apprehension or detention

Question 54

What is the intent required for theft?

Answer 54

Specific intent: to permanently deprive another of their property

Question 55

What is the intent required for robbery?

Answer 55

Specific intent: to permanently deprive another of their property (but with intent or recklessness sufficient as to force)

Question 56

What is the intent required for burglary s9(1)(a)?

Answer 56

Specific intent: to enter building and commit theft/cause GBH/commit criminal damage therein

Question 57

What is the intent required for fraud by false misrepresentation?

Answer 57

Specific intent: knowledge that statement is/might be false and intention to make gain or cause loss or risk of loss

Question 58

What is the doctrine of transferred malice?

Answer 58

If a defendant has the intention to commit an offence against one victim, but inadvertently commits the offence against a different victim, the intent is ‘transferred’ to the new victim and the mens rea requirement of the offence is satisfied. * If the doctrine applies, they will usually be found guilty of 2 crimes, the completed crime and the attempted crime* Transferred malice only applies where the offence intended is the same as the one committed e.g. intending to commit assault by throwing a rock but accidentally committing criminal damage - mens rea will not transfer as the different offences have different mens rea requirements.

Question 59

D laces B’s tea with poison intending to kill them. V drinks the tea instead and dies. Is D guilty of a crime?

Answer 59

D is still guilty of murder even though they did not intend to kill V. D’s ‘intent’ to kill B is ‘transferred’ to V.

Question 60

What is the test for recklessness?

Answer 60

Recklessness requires that: * The defendant foresees the risk from the act and continues regardless (subjective). Note, the extent of the risk is largely irrelevant. If the defendant sees any risk this is satisfied; and * In all circumstances known to the defendant, it must be an unreasonable risk to take (largely objective). Crimes of recklessness require a lower level of culpabilityExample: D and their 11-year-old child C decide to set fire to some newspaper under a bin. The fire then spreads to a building, causing it damage. D foresaw risk from setting the fire but took it anyway. A reasonable person would not have run such a risk. D would be guilty of arson. C, being much younger, did not foresee any risk, so would not be guilty.

Question 61

If recklessness is available as mens rea, what type of intention can never apply?

Answer 61

Indirect intention.

Question 62

A man is homeless and cold and looking for somewhere to sleep. He finds a haystack in a nearby field, and hollows out a burrow to sit in. Because he is cold, he decides to light a fire to warm up. He foresees the risk that the haystack may catch fire, but he is willing to risk it. The haystack does catch fire. Does the man have the required mens rea for arson?

Answer 62

He did foresee the risk of harm occurring but was willing to risk it in order to warm up. The utility is warming up, but the risk of harm is much greater. It’s not reasonable to light a fire in a haystack in order to warm up so, he did have the mens red of arson.

Question 63

What 4 crimes can be committed by recklessness?

Answer 63

• Assault* Battery* Wounding or causing GBH (s20)* Criminal damage

Question 64

What is the intent required for assault?

Answer 64

Intention or recklessness as to causing the apprehension of inflicting immediate and unlawful force

Question 65

What is the intent required for battery?

Answer 65

Intention or recklessness as to applying unlawful force

Question 66

What is the intent required for wounding or causing GBH (s20)?

Answer 66

Intention or recklessness as to causing some bodily harm

Question 67

What is the intent required for criminal damage?

Answer 67

Intention or recklessness as to whether property belongs to another person and whether it is damaged or destroyed

Question 68

What is the test for the mens rea of negligence?

Answer 68

Even lower culpability than recklessness. Test: * Did the defendant owe a duty of care; and * Did the defendant breach the standard of care expected? In certain cases, the standard will be defined by statute, in others, by the common law. It is always an objective standard. Example: Whilst driving their car, D is momentarily distracted by changing the station on their radio. Consequently, D smash es into the back of another vehicle. As D owes a duty of care to other road users and has fallen below the standard of the ‘competent and careful driver’, they will be guilty of careless driving.

Question 69

What is the mens rea required for strict liability offences?

Answer 69

None.* There is no requirement for awareness of all of the factors constituting the crime i.e., the defendant can be found guilty from the mere fact that they committed the act. * Defences that negate state of mind, such as mistake of fact, are not available.

Question 70

How is mens rea of a company established?

Answer 70

• Under the ‘identification doctrine’, the prosecution must find a ‘controlling mind‘-a person whose actions and mental state can be said to be that of the corporation as a whole. This is often very difficult, so this doctrine is seldom used. * To make prosecution of companies easier, Parliament have introduced offences that target corporations and do not require mens rea e.g. regarding health and safety standards, and offences for failure to prevent certain offences

Question 71

Can prosectutions be deferred?

Answer 71

The CPS and Serious Fraud Office can defer prosecutions on corporations to allow them to ‘fix’ problems, such as health and safety breaches, upon agreement with them. Such a deferral is not available to physical persons.

Question 72

What are the homicide offences?

Answer 72

Murder Manslaughter* Voluntary (i.e. diminished responsibility or loss of control applies)* Involuntary (unlawful act or gross negligence

Question 73

What are the elements of the offence of murder?

Answer 73

Defendant commits murder when they:* Cause (applying the tests of factual and legal causation discussed previously) * The death (including brain death) of another human being (Note: killing an animal is never murder)* Unlawfully i.e. no legal excuse (e.g. killing a soldier in a legally sanctioned war/self-defence would not be murder) * With the intention to kill or cause grievous bodily harm. Murder carries a mandatory life sentence and the judge has no discretion but to sentence the defendant to life imprisonment.

Question 74

Can murder be caused by omission?

Answer 74

Yes, if the defendant causes the death of a human being and has a duty of care towards themExample: A parent does not feed their seven-year-old child, resulting in the child starving to death. The parent had a duty to care for the child as their parent, and the parent’s inaction was the cause of the child’s death. The parent can be found guilty of murder.

Question 75

Can a foetus be murdered?

Answer 75

• No, a foetus is not a human being for the purposes of murder. * In English law, a person must be “fully expelled from the womb” and alive. * There are separate offences of child destruction and procuring a miscarriage that cover situations of wrongful destruction of a foetus.

Question 76

What is the mens rea required for murder?

Answer 76

Either the intention to:* kill another human being or * cause grievous bodily harm to another human being (i.e. can murder without wanting the person to die). Example: A boss of a criminal gang wishes to teach a member of the gang a lesson by breaking their arm. When the boss does so, the member of the gang goes into shock, has a heart attack, and dies. The boss is guilty of murder because they wanted to cause the member grievous bodily harm. The fact that the boss did not want to kill the member is irrelevant.

Question 77

What is voluntary manslaughter?

Answer 77

Voluntary manslaughter occurs where:* the actus reus and mens rea of murder are made out (so when a defendant causes the death of another person and intends to kill or cause grievous bodily harm), * but there are partial defences that can reduce the offence from murder to manslaughter. The two most common partial defences are diminished responsibility and loss of control.

Question 78

What are the 4 requirements of the defence of diminished responsibility?

Answer 78

For a defendant to assert the partial defence of diminished responsibility: * The defendant must demonstrate an abnormality of mental functioning; * The abnormality must have arisen from a recognised medical condition (note that this is broad and could include depression, Alcohol Dependency Syndrome, or even premenstrual stress - look for diagnosis in question); * The abnormality must have substantially impaired the defendant’s ability to either:1. Understand the nature of their conduct; 2. Form a rational judgment; or 3. Exercise self-control; and* The abnormality must provide an explanation of the killing.Burden of proof: the defendant must prove each element on the balance of probabilities.

Question 79

D is a child with a mental illness and plays video games all the time. D shoots V believing that V will regenerate because characters in video games do. Does D have a defence to the charge of murder?

Answer 79

D may be able to use the defence of diminished responsibility as:* their behaviour demonstrates an abnormality of mental functioning* which must have arisen from their mental illness* and it substantially impaired their ability to understand the nature of their conduct* which provides an explanation for the killingD will have the burden of proving each element on the balance of probabilities.

Question 80

D is being abused by V to such an extent it causes D to become clinically depressed (a recognised medical condition). In a fit of fury, D kills V. Does D have a defence to the charge of murder?

Answer 80

D may be able to use the partial defence of diminished responsibility as:* their behaviour demonstrates an abnormality of mental functioning* which must have arisen from their mental illness* and it substantially impaired their ability to exercise self-control* which provides an explanation for the killingD will have the burden of proving each element on the balance of probabilities.

Question 81

A parent cares for their extremely-ill child over the course of many years. The parent watches their child suffer. And over time, under the pressure of their circumstances and their own developing mental health issues, the parent becomes convinced that their child is possessed by a demon. In order to help rid their child of this demon, the parents slit their child’s wrist to let the bad blood out. The child bleeds to death. In these circumstances, if the defence can show there was an abnormality of mental functioning brought on by a medical condition, which substantial impairment is relevant to the defence of diminished responsibility?

Answer 81

Unable to understand their conduct

Question 82

A defendant picks up a hitchhiker, pulls over in a remote spot, and makes sexual advances on the victim. The victim refuses the advances and hits the defendant around the head. The defendant then retaliates by hitting the victim in the throat. The defendant panics when they see the victim gurgling up blood and realised that they must have hurt them. Instead of phoning for an ambulance for help, the defendant hits and beats the victim until they are dead, not knowing what else to do. In these circumstances, if the defence can show there was an abnormality of mental functioning brought on by a medical condition, which substantial impairment is relevant to the defence of diminished responsibility?

Answer 82

Unable to form a rational judgment

Question 83

A psychotic defendant who is overtaken by an unstoppable urge to attack and kill the first person wearing pink that they pass in the park. Which substantial impairment is relevant to the defence of diminished responsibility?

Answer 83

Unable to control themselves

Question 84

Why is the burden of proof reversed for the partial defence of diminished responsibility?

Answer 84

The prosecution cannot realistically obtain the medical evidence needed, only the defence can.

Question 85

What are the 3 requirements of the defence of loss of control?

Answer 85

Loss of control is a partial defence for which the defendant must show: * Their role in the killing resulted from a loss of self-control (i.e. the defendant must be unable to restrain themselves but this doesn’t have to be sudden)* The loss of self-control was caused by a qualifying trigger, namely: 1. A fear of serious violence from the victim against the defendant or another identified person; or 2. A thing or things done or said which constituted circumstances of an extremely grave character and caused the defendant to have a justifiable sense of being seriously wronged; and * A hypothetical person of the defendant’s age and sex might have reacted in the same way. The burden is on the defence to raise the issue and on the prosecution to disprove beyond a reasonable doubt.

Question 86

Does a loss of control have to be sudden in order for the partial defence to apply?

Answer 86

• No, e.g. in domestic violence cases there sometimes seen a slow-burn effect where the buildup of years and years of abuse can result in the requisite inability to restrain themselves. Example: the wife who has been beaten and abused for years and years who one day can’t take it anymore and douses her husband in petrol while he sleeps and sets him on fire could potentially claim loss of control even though the inability to control themselves was not sudden and came as the husband slept.

Question 87

What constitutes a qualifying trigger for the defence of loss of control?

Answer 87

The definition of ‘trigger’ is not clear. * Statute gives the example of: A parent returns home to find their child being raped and kills the assailant. * revenge is not a sufficient trigger* sexual infidelity alone is not a sufficient trigger.Example:* D’s partner, V, taunts them about having an affair and their previous attempts to commit suicide. In their anger, D stabs V. The matter of loss of control should be a matter for the jury to decide (in the actual case, it was found to be a trigger because the infidelity was not the sole reason for the defendant’s loss of control)

Question 88

Can revenge be a qualifying trigger for the defence of loss of control?

Answer 88

No.

Question 89

Can sexual infidelity be a qualifying trigger for the defence of loss of control?

Answer 89

No. Note, it may be a reason for a trigger but infidelity alone is insufficient.

Question 90

What is involuntary manslaughter?

Answer 90

• The actus reus of murder was committed by the defendant but the mens rea of murder is not made out (so the defendant does not intend to cause death or serious harm), the defendant may still be liable for involuntary manslaughter.* Examples include unlawful act manslaughter/constructive manslaughter and gross negligence manslaughter

Question 91

What is unlawful act manslaughter/constructive manslaughter?

Answer 91

The defendant commits a criminal offence that carries an objective risk to the victim and they die as a result. The act must be:* Intentional (i.e. there must be a deliberate positive act, it cannot be an omission)* Unlawful (i.e. there must be an underlying criminal offence, such as battery or criminal damage - can be a minor offence and doesn’t have to be directed at the victim)* Dangerous (i.e. a reasonable person would recognise that the act exposes others at least to the risk of some harm); and * The cause of death (applying the tests of factual and legal causation).

Question 92

D purchases a new sports car and decides to take it out to test its limits. The route D chooses will take them through a crowded shopping district. D speeds through the chosen route and unintentionally runs V over in the crowded shopping district, killing them. Is D guilty of murder?

Answer 92

D is not guilty of murder, because they did not have the intent to kill or cause grievous bodily injury. However, D is guilty of unlawful act manslaughter, as they intentionally committed an unlawful act (speeding or dangerous driving) that was the factual and legal cause of V’s death.

Question 93

D purchases a new sports car and decides they will use it to run over their ex-partner, P. D knows P will be exiting a theatre at 4 p.m. D also knows that the street in front of the theatre will be crowded and they might accidentally hit someone else, but D does not care. D drives their car to the theatre as planned, sees P, and aims for them. But P jumps out of the way, and D runs over V, killing them instantly. Is D guilty of murder?

Answer 93

Yes, this is murder and not unlawful act homicide because D had the intent to kill and under the transferred malice doctrine, D’s intent to kill P will be transferred to an intent to kill V.

Question 94

Can unlawful act manslaughter/constructive manslaughter be committed by omission?

Answer 94

No, a positive act is required.

Question 95

D is throwing heavy lumps of concrete from a bridge at the cars below. V is down below and sees this. Concerned that the lumps of concrete might damage the road, V runs underneath the bridge and tries to catch the concrete. V is hit by one of the lumps and dies. Is D guilty of any homicide offence?

Answer 95

No. Although D has committed an unlawful act (criminal damage), which is both intentional and dangerous, the chain of causation appears to be broken by V’s actions. The victim’s behaviour in trying to catch the lumps of concrete appears ‘so daft as to be unforeseeable’ and will therefore break the chain of causation, relieving D of liability for V’s death.

Question 96

What are the 5 elements of gross negligence manslaughter?

Answer 96

• The defendant owes the victim a duty of care; * The defendant breached the duty of care (note, this can be by omission); * The breach caused the victim’s death; * There was a serious and obvious risk of death (i.e. risk of harm isn’t enough) and* The breach amounted to gross negligence. Gross negligence manslaughter covers cases in which a defendant does not commit an offence or knowingly take a risk but, rather, acts in such an extremely negligent way that they are criminally culpable e.g. a doctor failing to check a patient’s blood type before transfusion.

Question 97

An anaesthetist fails to notice that their patient’s oxygen tube has become detached during an operation and the patient dies as a result. Is the anaesthetist guilty of an offence?

Answer 97

The anaesthetist’s conduct falls so far below the standards of care owed to their patient that they are grossly negligent, and the anaesthetist can be guilty of gross negligence manslaughter.

Question 98

Can gross negligence manslaughter be committed by omission?

Answer 98

Yes

Question 99

For gross negligence manslaughter, what is the standard of care?

Answer 99

In order to establish a breach of duty, the defendant’s acts are compared to the standards of a reasonable person under that duty of care with the applicable expertise e.g. reasonable doctor, a reasonable car mechanic, or a reasonable nurse

Question 100

What are the 5 nonfatal offences against the person?

Answer 100

Common law* Assault* BatteryOffences Against the Person Act 1861* Assault Occasioning Actual Bodily Harm (s47)* Wounding or Inflicting Grevious Bodily Harm (s20)* Wounding or Inflicting Grevious Bodily Harm (s18)

Question 101

What is a charge of ‘common assault’?

Answer 101

A charge of either/both assault and batteryExample: If someone hits another person who is facing them, the victim will be assaulted (as they are about to be hit and apprehend unlawful violence) and battered (as they have unlawful force applied to them).

Question 102

What is assault?

Answer 102

Assault occurs when a defendant:* either intentionally or recklessly * causes another person to apprehend (believe that they will receive, fear is not required - victim’s awareness is crucial) * immediate unlawful personal violence. Words themselves can both give rise to assault and negate assault depending on the circumstances.

Question 103

Does a victim need to feel fear for conduct to amount to assault?

Answer 103

• No, the defendant’s conduct must make the victim believe that the defendant will apply unlawful force upon them imminently.* Apprehension equates to belief; the victim need not experience fear. Example: D makes a motion towards V to strike them but falls short of actually touching V. If V believes that D was about to hit them, assault will be made out. V does not have to feel fear of the anticipated blow; they just have to have believed that it was going to happen.

Question 104

A sneaks up behind B and shakes their fist at B. Has A assaulted B?

Answer 104

No, B did not see this so there is no apprehension of immediate unlawful violence.

Question 105

What does ‘immediate’ mean in the context of the apprehension requirement of the offence of assault?

Answer 105

The apprehension must be that the victim will be subjected to personal violence at some time and place not excluding the here and now. * Could be here and now, but might be elsewhere and later, the victim just doesn’t know e.g. harassment like writing hate mail or silent telephone calls could constitute assault. The victim, on receipt, doesn’t know where the defendant is, so they could apprehend violence at some point, not excluding the here and now.

Question 106

Can assault be committed using words?

Answer 106

• Yes so long as the circumstances are such that the victim believes that violence is imminent e.g. D walks up to V and says, “I am going to punch you now”. If V apprehends the application of unlawful violence, this will amount to an assault.* Note, words can also negate an assault if it stops the victim from beliveing that they will be immediately assaulted e.g. D walks up to V with their fists raised and says, “I would punch you if it were not illegal”. By their words, V knows that D would not punch them so assault is not made out.

Question 107

Can a conditional threat amount to assault?

Answer 107

Yes, if the threat is conditional, but might happen, that would be sufficient for assault.Example: D walks up to V flipping a coin saying, “If this coin lands on heads, I will thump you”. Even if the coin lands on tails, ‘ has already had the fear of thinking that D might hit them. This is sufficient for assault.

Question 108

What is the mens rea for assault?

Answer 108

Assault can be caused intentionally or recklessly. The defendant must either:* intend the victim to apprehend the application of unlawful violence, or * foresee that their actions could make the victim apprehend the application of unlawful violence, and it must be an unreasonable risk to take. Example: D runs down a train carriage flailing their arms. V moves out of the way to prevent themselves from being hit by D. D is likely to have foreseen that doing this action would cause people in the carriage to apprehend that they might be hit, and it is an unreasonable risk to take, as there is no utility in the action. D has recklessly committed assault.

Question 109

Can silence constitute assault?

Answer 109

Yes e.g. silent phonecalls

Question 110

What is battery?

Answer 110

Battery occurs when a defendant:* either intentionally or recklessly * applies unlawful personal force upon another person. Contact may be direct, indirect, delayed or by omission and violence is not required

Question 111

What is the actus reus for battery?

Answer 111

The defendant must make contact with the victim’s body, and the contact must be unlawful. * Application of force is defined very widely. Any unwelcome contact with the victim’s body is sufficient. * There is no requirement that contact is violent.* Contact may be direct (hitting someone), indirect (setting a dog on someone), delayed (digs a hole someone falls in later) or by omission (refusing to drive off someone’s foot)Example: V tells D not to touch V’s nose. D touches V’s nose. This is sufficient for a battery.

Question 112

D accidentally drives their car onto a police officer’s foot. After realising their mistake, D refuses to move the car off the police officer’s foot. Did D commit battery?

Answer 112

• When D accidentally drove onto the foot, there is no battery, as the defendant lacks mens rea.* When D refused to move, D has the necessary mens rea, and they are applying unlawful force upon the victim by omission, so the offence is made out.

Question 113

What is the mens rea for battery?

Answer 113

Battery can be caused intentionally or recklessly i.e. the defendant must foresee the risk that their actions could cause them to apply unlawful force upon the victim, and this must be an unreasonable risk to take. Example: D runs down a train carriage flailing their arms. While doing that, D hits V on the nose. D must have foreseen that doing this action might cause people to be hit. D’s mental state is sufficient for battery.

Question 114

Can a victim consent to assault and battery?

Answer 114

Yes, consent is a defence to assault and battery if it is: * Expressed or implied (e.g. contact during everyday life) to the defendant; and * Given by someone with sufficient capacity, freedom, and information to make a choice.

Question 115

What is ABH?

Answer 115

Assault Occasioning Actual Bodily Harm under s47 of the Offences Against the Person Act 1861* The actus reus and mens rea of assault and/or battery,* in addition to causing actual bodily harm (applying the tests of factual and legal causation). Usually, ABH will result from a battery, but an assault can also lead to a defendant being charged with ABH e.g. V flees from D, as they believe D is about to hit them. While fleeing, V falls and bruises their arm. The offence falls within section 47, as V apprehends the application of force and this apprehension causes injury.

Question 116

What type of harm is required for ABH?

Answer 116

ABH means:* any hurt or injury calculated to interfere with the health or comfort of the victim* That is more than transient merely trifling. Sufficient injuries include: * Scratches, grazes, and abrasions; * Bruising and swelling; * Temporary loss of consciousness; and * Diagnosed psychiatric injury, but not fear.

Question 117

What is the mens rea required to commit ABH?

Answer 117

Intention or recklessness as to whether a victim will:* apprehend the infliction of immediate unlawful violence (assault) or * the application of unlawful force (battery). A defendant does not need to intend or foresee ABH injuries.Example: D runs down a train carriage flailing their arms. While doing that, D hits V on the nose. V’s nose is seriously bruised. D must have foreseen that doing this action might cause people to be hit. D does not need to foresee that this action would cause ABH-level injuries. D’s mental state is sufficient whether the charge is common assault (assault and battery) or ABH.

Question 118

Defendant makes repeated silent telephone calls to the victim, sometimes breathing heavily down the phone. The victim develops anxiety as a result of the telephone calls. Is the defendant guilty of an offence?

Answer 118

Yes, this is assault ABH. Diagnosed psychiatric injury is enough to satisfy the ABH requirement. There is no application of force. Instead there is causing apprehension of unlawful personal violence.

Question 119

Defendant goes to his ex-partners house. Their ex-partner has their hair in a ponytail. The defendant pins him down on the bed, sits on them and cuts off their ponytail without the ex-partners consent. There are no bruises or injuries aside from the cutting of the ponytail. Is the defendant guilty of an offence?

Answer 119

This is battery ABH. Cutting off hair without consent is enough to satisfy the ABH requirement. The cutting of hair as well as the pinning to the bed is a clear application of force. The cut hair amounts to injury for the purposes of ABH.

Question 120

Two teenagers are playing with a toy gun that fires foam bullets. Both believe that there are no foam darts in the gun. One of the teenagers aims at the other, and they both laugh. He pulls the trigger, and in fact, there is a foam dart remaining in the gun, it fires at the victim. The victim sustains a black eye as a result of the foam bullet. Is the teenager guilty of an offence?

Answer 120

No. Whilst there is an injury that is of the right level for a charge of ABH, there is neither an underlying assault nor a battery here. * There is no assault because the victim doesn’t apprehend the application of force. They believe that there are no darts in the gun and they’re laughing as the defendant takes aim. * There’s no battery as well as there is an application of indirect force through the Nerf dart, the defendant lacks the mens rea. There is no intention here as it was not the defendant’s aim or purpose. Recklessness requires the defendant to foresee the risk of the application of force, which is not the case here either as the defendant believes that there is no dart left in the gun.

Question 121

What is s20 GBH?

Answer 121

Wounding or inflicting grievous bodily harm under s20 of the Offences Against the Person Act 1861Actus reus is causing (applying the test for factual and legal causation) either:* a wound (i.e. both layers of skin are broken) or * grievous bodily harm (i.e. serious harm)Mens rea requirement will be satisfied if the defendant:* intends to cause some harm, or * if they foresee the risk that some harm may be caused and it is unreasonable in the circumstances known to the defendant to take that risk.Note: there is no need to foresee the level or type of injury caused.Self-defence may be available as a defence.

Question 122

What is a ‘wound’ for the purposes of GBH?

Answer 122

Any injury where both layers of the skin are broken e.g. a stab wound. Need to see blood. Bruising (breaking only one layer) is not enough.

Question 123

What is an injury for the purposes of GBH?

Answer 123

GBH injuries are defined as ‘serious harm’. * These injuries are more serious than ABH injuries.* Long periods of unconsciousness* Broken bones* Serious psychiatric injuries

Question 124

What is the difference between s20 GBH and s18 GBH?

Answer 124

The mens rea* s20: intention or recklessness regarding some harm* s18: intention to cause serious harm; or forsee the risk of some harm and intend to resist lawful apprehensionThey have different levels of seriousness and different sentences are likely on conviction.

Question 125

A defendant bumps into their ex partner at the local pub and there is a lot of bad feeling between them. Now, when the ex isn’t looking, the defendant throws a coin at them intending to annoy them and cause them some harm. The defendant throws one coin just as the ex turns around and it hits them in the eye. The impact seriously damages the eye and the ex ends up losing their eyesight permanently. Is the defendant likely to be charged with s20 or s18 GBH?

Answer 125

Here is a clear example where the defendant did not intend or foresee the serious harm they caused. However, as they intend or foresee the risk of some harm, this is enough for a conviction under Section 20 GBH.

Question 126

What is s18 GBH?

Answer 126

Wounding or causing grievous bodily harm with intent under s18 of the Offences Against the Person Act 1861Actus reus is causing (applying the test for factual and legal causation) either:* a wound (i.e. both layers of skin are broken) or * grievous bodily harm (i.e. serious harm)Mens rea: a defendant must * (i) intend to cause serious harm (e.g. stabbing) or * (ii) foresee the risk of some harm and intend to resist lawful apprehension. Note, recklessness is not available as a mens rea for s18 e.g. a HIV positive person having sex with people without telling them is likely reckless so s20 would be more appropriate.

Question 127

A victim bumps into the defendant at a nightclub. The victim accidentally spills that drink over the defendant. The defendant punches the victim one time in the face. This breaks the victim’s nose. Is this likely s18 or s20 GBH?

Answer 127

Here, the prosecution might struggle to show that the defendant intended to cause serious harm with a single punch. A charge of s20 will be much easier to prove since it will be easier to demonstrate an intention or recklessness regarding causing some harm.

Question 128

Can ABH or GBH be consented to?

Answer 128

Generally, no, subject to 5 exceptions (surgery, body modification, religious practices, sports, horseplay, limited sexual gratification). If within an exception, the consent: * Must be expressed or implied to the defendant in a legally recognised manner; * Must be effective and the victim must have the capacity, freedom, and information to make a choice; and * Must come within a legally recognised category.

Question 129

What are the 6 exceptions to the fact that it is not possible to consent to injury?

Answer 129

• Surgery * Body Modification (e.g. tattoos and piercings of persons over 18)* Religious Practices (circumcision and religious flagellation) * Sports (implied consent to the contact that accompanies the sport even where one player causes another injury when their actions are slightly outside the rules of the game but does not extend to intentional injuries except for in boxing/martial arts).* Horseplay (where a group of boisterous youths get together and play, accidents will happen and there is implied consent to the resulting injuries) * Sexual gratification (can consent to risk of infections if fully informed, sadomasochism in matrimonal relations. Note, certain sadomasochistic practices involving serious violence have been prosecuted)

Question 130

D plays in a football match and commits a foul by slide tackling V. Consequently, D causes V serious injury. Has D committed an offence?

Answer 130

No, this is within the zone of appreciable risk of the game.

Question 131

What does the type of contact consented to depend on in the context of sport?

Answer 131

The type of sport and the context of the match will determine the level of behaviour covered by implied consent. Example: 11-year-olds playing football would not have given implied consent to the type of conduct that we see on TV from professional football players.

Question 132

Schoolboys were throwing each other in the air as a joke. They dropped one of the boys and the victim ruptured their spleen. Did the boys commit an offence?

Answer 132

No, implied consent to the ‘horseplay’ was found.

Question 133

What are the 4 offences under the Theft Act of 1968?

Answer 133

• Theft (s1)* Robbery (s8)* Burglary (s9)* Aggravated Burglary (s10)

Question 134

What are the elements of the offence of theft?

Answer 134

Under s1 of the Theft Act of 1968, theft involves:* Dishonest* Appropriation (i.e. assuming at least one right of the owner)* Of property (money and all other property including intangible, real and personal property)* Belonging to another (including co-owned)* With the intention of permanently depriving the other of it.

Question 135

What is ‘appropriation’ for the purposes of the offence of theft?

Answer 135

Any assumption of the rights of the owner; the defendant need not assume all the rights of the owner to satisfy this requirement. * It can be an ongoing or repeated action; it can be important to establish later appropriation in order to establish the coincidence of all the elements of the offence at the same time. Examples: * D switches labels on goods in a shop so that expensive goods have labels of cheaper items on them. They then go to the checkout to pay for the goods at a lower price. This is appropriation because only the shop had the right to change the price on the items. * D finds a bracelet in the street and picks it up. At this stage, D lacks dishonest intent, so the offence is not made out. Later, D decides to keep the bracelet. Here there is a later appropriation, at which point all the elements of actus reus and mens rea coincide.

Question 136

How might the exam test the requirement of appropriation in the context of theft?

Answer 136

Check for coincidence of actus reus and mens rea in any theft question; the mens rea may often be missing e.g. appropriation in a shop occurs as soon as the item is picked up; this occurs whenever a shopper puts items in their trolley in the supermarket. What distinguishes the innocent shopping from theft is the lack of dishonest intention.

Question 137

What is ‘property’ for the purposes of the offence of theft?

Answer 137

• Property includes money and all other property, including intangible property (such as copyrights and electronic transfers), real property (relating to land), and personal property.* Illegal property is property under the Theft Act 1968 e.g. if D steals a drug dealer’s supply of cannabis they would be guilty of theft* Note, information is not property* Property does not include corpses but does include body parts

Question 138

D takes an exam paper, copies its content, and returns it. Has D committed theft?

Answer 138

No, this is not theft because information falls outside the definition of property.

Question 139

A football fan takes another person’s football ticket. The fan uses it to watch the match and then returns it to the owner. The ticket is now worthless. Has the fan committed theft?

Answer 139

There has been a theft because the fan took the value of the ticket and returned a worthless piece of paper.

Question 140

What is the position of abandoned property under the Theft Act 1968?

Answer 140

Property will rarely be considered to be abandoned, even after it has been lost or thrown away.Example: rubbish left out for collection or a bag of items left outside a charity shop. The original owner won’t want these items anymore in either case, but they will not be deemed to have been abandoned by them until it has been adopted by the intended recipient i.e. until the council collects the rubbish or until the charity shop takes the bag in.

Question 141

How must lost property be treated to avoid committing a theft?

Answer 141

There is a hierarchy of possible claimants to consider before the finder can say it does not belong to another. * Consider the true owner. Reasonable steps must be taken to try and trace them like handing the item in where is being found or taking it to a police station. * If the true owner cannot be found, then it might belong to the finder or to the landowner depending on whether it’s on or attached to the land. If it’s on the land, so it’s not attached but just lying freely, then the finder is entitled to keep it and it will not belong to another. If it is in some way attached to the land e.g. buried in the Earth, then it will belong to the landowner and the finder will not be allowed to keep it.

Question 142

What does ‘belonging to another’ mean for the purposes of the offence of theft?

Answer 142

This means another has possession or control over itTaking property belonging to another might include:* a partner stealing from co partners* a director stealing from their company, and * an owner taking an item that was left ‘on trust’ with another for services rendered* a person taking property they co-own with someone.Property will rarely be considered to be abandoned, even after it has been lost or thrown away. Example: A person takes their car back from a garage without the garage’s permission and without paying for the repairs. This can be theft by taking from someone with possession or control.

Question 143

What is the mens rea required for theft?

Answer 143

A defendant must:* be dishonest and * intend to permanently deprive the victim of the property (i.e. they treat the property as their own regardless of the true owner’s rights).If the defendant intends only to borrow the item and then return it, they will not be guilty of theft

Question 144

When will borrowing something amount to theft?

Answer 144

Borrowing only amounts to intention to permanently deprive if it is for so long or so extensive that it is equivalent to an outright taking or disposal. All goodness, virtue and practical value has to be taken from the goods.

Question 145

D takes V’s car intending to take it for a joyride (i.e., takes the car to drive it around for a few hours before abandoning it). Is D guilty of theft?

Answer 145

D is not guilty of theft. (For this reason, the law has a separate offence of taking a vehicle without the consent of the owner).

Question 146

At what point is intent determined for the offence of theft?

Answer 146

It is the defendant’s intention at the time they take the item that is important. * Therefore, if someone takes an item intending to keep it but then changes their mind, that is sufficient for theft. * Furthermore, if the defendant gambles with the victim’s property or removes value from the property, that will be sufficient for theft e.g. taking a season ticket intending to return at the end of the season is theft as the value will be gone.

Question 147

What is the test for dishonesty in the context of theft?

Answer 147

Court must ascertain the defendant’s knowledge as to the facts and ask itself whether the defendant’s behaviour was dishonest by the objective standards of reasonable and honest people. A defendant will not be dishonest if the defendant believes:* they have a right in law (i.e. an entitlement) to the property * they would have the owner’s consent* the owner could not be discovered by taking reasonable steps

Question 148

D takes stationery items from work. D says that they are not dishonest as “everyone does it” and it is not dishonest according to their moral code. Is D guilty of theft?

Answer 148

Yes, D would still be guilty because their behaviour is dishonest by the standards of reasonable and honest people and they do not have entitlement or owner’s consent and it is not the case that the owner is not found.

Question 149

A person takes a diamond ring they think they have inherited under a will, whereas in fact, they’ve been cut out of the will. Are they guilty of theft?

Answer 149

No, they believe that they are entitled to the property in law

Question 150

A teenager takes their parents’ car without asking thinking they would have permission. Are they guilty of theft?

Answer 150

No, they believe they would have the owner’s consent.

Question 151

What are the elements of the offence of robbery?

Answer 151

A defendant is guilty of robbery if they:* commit theft and,* immediately before or at the same time, they use force or put the victim in fear of then-and-there being subjected to force* in order to steal. Note: do not assume that there is robbery where there is violence and appropriation.

Question 152

What is the actus reus of robbery?

Answer 152

There must be:* appropriation of property belonging to another and* Force (infliction, apprehension or seeking to cause apprehension)* Before or at the time of the offence* In order to steal

Question 153

What is ‘force’ in the context of robbery?

Answer 153

The force element can be satisfied through:* infliction of force, * causing an apprehension of force or * seeking to cause an apprehension of force. Example: D uses a fake gun to threaten V and takes V’s property. Even if V knows that the gun is fake, D is guilty of robbery because D has sought to cause V to apprehend force.

Question 154

At what point must force be used in order for a theft offence to constitute robbery?

Answer 154

Force must be used or threatened before or at the time of the offence and must be used in order to steal. It cannot be used afterwards. Example: D takes V’s wallet without their knowledge. V realises their wallet is missing a few seconds later. V then confronts D, who punches V in the face. This is not robbery because the force came too late.

Question 155

What is the mens rea of robbery?

Answer 155

A defendant must:* be dishonest and * intend to permanently deprive the victim of the property (i.e. they treat the property as their own regardless of the true owner’s rights).There is no additional mens rea requirement in relation to the force used.

Question 156

A defendant believes that he is owed £5 by the victim. The defendant goes over to their house, the victim refuses to give them the money and says that they don’t owe the defendant anything. A fight breaks out and the defendant pushes and pulls at the victim. A £5 note drops onto the floor and the defendant picks it up. The defendant picks it up and mutters “that’s mine then” and they leave with the money. Has the defendant committed robbery?

Answer 156

There is no theft on these facts because one of the essential elements is missing, there is no dishonesty. One of the scenarios in which the defendant is accepted to be acting without dishonesty is when the defendant believes they are entitled by law to the item. Here the defendant believes the money is his and so believes he is entitled to take it regardless of whether he’s right. And as such he has not committed theft and that means there can’t be a robbery.

Question 157

A defendant is on a train late at night with an elderly passenger. The carriage is empty beside them. The defendant walks up to the passenger and says, “I have a knife in my pocket give me your handbag now”. The elderly passenger is deaf and can’t hear what the defendants are saying, they can’t see their expression very well either as their sight is failing. So they smile and say, “oh, thank you dear”. The defendant takes the handbag and runs off into another carriage. Has the defendant committed robbery?

Answer 157

The defendant has sought to put the victim in fear. They have not succeeded as the passenger was deaf and blind and oblivious to what was going on. But nevertheless, all that is needed is that the defendant sought to cause the apprehension of force, which the defendant’s words would certainly satisfy here.

Question 158

Two defendants break into the victim’s home. The victim is at home, they tied the victim up. They go upstairs and take the victim’s jewellery, they then threaten the victim and they make their getaway. Have the defendants committed robbery?

Answer 158

Yes, theft is an ongoing act from the moment of tying the victim up to getting away, during this time force is used in order to steal and so this satisfies the requirements of robbery.

Question 159

A defendant passes the victim on a busy street, the defendant tries to grab the bag out of the woman’s hands, but she won’t let go. A tug of war ensues, the defendant pulls her over and the victim starts kicking and screaming but still won’t let go. As people are starting to watch, the defendant let go of the handbag and runs off. Is the defendant guilty of robbery?

Answer 159

Yes. There is the use of force immediately before or at the time of stealing and in order to steal. Rouching the bag, holding it, trying to remove it is enough to be appropriation.

Question 160

What are the two types of burglary?

Answer 160

• Burglary by trespass with intent under s9(1)(a) and* Burglary by offences committed following a trespassory entry under s9(1)(b)

Question 161

What are the elements of the offence of burglary under s9(1)(a) of the Theft Act 1968

Answer 161

The defendant must have:* knowingly or recklessly * entered a building or a part of a building * as a trespasser * with any part of their body * with intent to 1. steal anything in the building, 2. inflict GBH on anyone in the building, or 3. cause criminal damage to the building or anything inside the buildingIt does not matter whether the defendant actually stole, inflicted GBH or caused criminal damage; the crime is committed ifthere is intention to do so at the time of entry.

Question 162

What are the elements of the offence of burglary under s9(1)(b) of the Theft Act 1968

Answer 162

The defendant must have* knowingly or recklessly * entered a building or a part of a building * as a trespasser * with any part of their body and* after entering, they actually or attempted to:1. steal or 2. inflict GBHBurglary is committed at the time of the underlying offence (i.e. stealing/GBH/attempt)

Question 163

What is a ‘building’ or ‘part of a building’ in the context of burglary?

Answer 163

• A building or part of a building requires a structure with some degree of permanence. * This includes inhabited vessels and vehicles e.g. houseboats or campervans* The trespass can arise from a** temporary restriction** or a restriction that applies to only a part of a building. Example: V tells D, a guest in their home, not to go upstairs. While V is in the kitchen, D goes upstairs into V’s bedroom to look for something to steal. D became a trespasser as soon as they went upstairs, because they had no permission to be there.

Question 164

What are the key differences between burglary under s 9(1)(a) and s 9 (1)(b)?

Answer 164

Timing of mens rea* (a) - point of entry* (b) - time of underlying offenceUnderlying offences* (a) theft/GBH/criminal damage* (b) theft/attempted theft/GBH/attempted GBH

Question 165

D breaks into B’s house at night intending on finding somewhere to sleep. Whilst there, D encounters V and stabs them. Is D guilty of burglary?

Answer 165

Even though D had no intention of stabbing anyone when they entered the house, they would be guilty of burglary under s9(1)(b) by offences.

Question 166

Does entry need to be substantial or effective to satisfy the requirement of entry under the offence of burglary?

Answer 166

No, it could be e.g. putting a hand through a window without permission.

Question 167

A defendant climbed up a ladder and looked in through an open window. In there he saw a naked woman sleeping. He climbed down the ladder, took off all of his clothes except his socks, and then he climbed back up the ladder again. As he was at the window sill, the woman woke up and mistakenly thought that it was her boyfriend and so she called him into the room. Neither he nor the woman could remember whether he had put his hand or any other part of his body through the window before he was invited in by the woman. Did he commit burglary?

Answer 167

The legal issue was whether the defendant knew or was reckless about whether he was a trespasser. As neither could remember the point at which he put his hand through the window, he could not be convicted safely as there was no evidence that he knew or was reckless about being a trespasser at or after the time of entry.

Question 168

What is required for a defendant to be convicted of aggravated burglary?

Answer 168

A defendant can be convicted of aggravated burglary if, while committing a burglary, they have with them: * A firearm or imitation firearm (including an airgun); * A weapon of offence (any article made or adapted to cause injury or intended by the defendant to be used as such e.g. bat, screwdriver etc.); or* An explosive (any article manufactured to create an explosion or intended by the defendant to explode). Timing* s9(1)(a) - the defendant needs to have the weapon at the time of entry* s9(1)(b) - the defendant needs to have the weapon at the time of committing the underlying offenceNo mens rea is attached to the weapon so the prosecution do not need to establish intent to use it, just that they had it with them.

Question 169

A defendant breaks into someone’s home without a weapon. Once inside the house, they pick up a knife from the kitchen and take it upstairs with them. They then steal items from the upstairs bedrooms. Is the defendant guilty of aggravated burglary?

Answer 169

Yes, the defendant can be charged under 9(1)(b) as they have the weapon with them at the time of the theft. It does not matter that they did not have it with them at the time of entry for 9(1)(b).

Question 170

A defendant goes around to their friend’s house for afternoon tea. Once there, the friend shows the defendant a new dress they’ve bought for a prom they’re going to go to. The defendant is secretly outraged as it’s exactly the same dress as they were going to buy but says nothing. The friend then goes to the toilet. The defendant grabs the opportunity and throws their coffee over the dress, permanently staining it. They then run out of the house. Has the defendant committed burglary?

Answer 170

No. Both burglary offences require entry as a trespasser into a building or part of a building knowing or reckless that they are a trespasser. This is probably satisfied here as when they throw the coffee over the dress, they are going beyond their license to be there, and so become a trespasser at that point. For 9(1)(a), you need intent to commit theft, GBH, or criminal damage at the point of entry. Here there is no intention to commit theft, GBH, or criminal damage at the point of entry, so there is no 9(1)(a) burglary. For 9(1) (b), you need the defendant to commit theft, attempted theft, GBH, or attempted GBH. Here, there’s criminal damage, which is not one of the underlying offences for 9(1) (b), and that means there isn’t a 9(1) (b) burglary either, so it isn’t burglary at all.

Question 171

What are the 3 fraud offences?

Answer 171

• Fraud by false representation* Fraud by failure to disclose information* Fraud by abuse of posititon

Question 172

What are the elements of the offence of fraud by false representation?

Answer 172

A defendant commits fraud by false representation if:* they knowingly and dishonestly make a false/misleading representation (of fact, of law, of state of mind or by conduct) and * intend, in doing so: 1. To make a gain for themselves or another; or 2. To cause or risk a loss to another. Note, the representation can be made via an agent.

Question 173

What is a representation in the context of the offence of fraud by false representation?

Answer 173

• A representation may be as to fact (e.g. “My mam gave me permission to sell it”), law, or state of mind (e.g. “I intend to pay you back when I get paid”) and it can be made by conduct (e.g. nodding at a gym receptionist implying you are a paying member). * A representation can be made to a machine e.g. using a bank card in an ATM while purporting to be the owner of the card. * The representation can also be made via an agent. Example: D pays A to pretend to be D to take and pass their driving test. D would be guilty of fraud by false representation by using A as their agent to make a gain for themselves, that is, passing the driving test.

Question 174

Does a representation have to be a lie for the offence of fraud by false representation?

Answer 174

No, a false representation can be untrue or simply misleading. Example: D owns an art gallery and hangs a fake Picasso painting among real ones and advertises it at a price comparable to the others. A court could find this to be a false representation.

Question 175

What is the test for dishonesty in the context of fraud by false representation?

Answer 175

• Test: dishonest according to the ordinary standards of reasonable and honest people.* Subjective point of view of the defendant is irrelevant.Example: D argues they were defrauding a bank to distribute gains among poor people. This would stil be dishonest on the onjective test and D would be guilty of fraud.

Question 176

What is the mens rea of fraud by false representation?

Answer 176

A defendant must: * Know the representation is or might be false or misleading (i.e. recklessness is not enough); * Act dishonestly; and * Intend to make a gain for themselves or another, or cause or risk loss to another (note a gain need not actually be realised). Example: D makes false representations about their financial position to obtain an overdraft from a bank. D knows that what they have told the bank is untrue or misleading, and D intends to make a gain for themselves (the use of the overdraft). Therefore, D is guilty of fraud by misrepresentation.

Question 177

Defendant sits a car theory test for her sister. The defendant fails the test. Is the defendant guilty of fraud by false representation?

Answer 177

Yes, they intended to make the gain for their sister. It does not matter that the gain was not realised.

Question 178

What are the elements of the offence of fraud by failing to disclose information?

Answer 178

A defendant commits fraud by failing to disclose information if:* they dishonestly fail to disclose information * that they are under a duty to disclose and * intend, in failing to do so: 1. To make a gain for themselves or another or 2. To cause or risk a loss to anotherExample: D leaves a box blank when asked to disclose their criminal convictions on a job application. They have failed to disclose information. They would also be guilty if they mentioned only some of their criminal convictions.

Question 179

What is the mens rea of fraud by failure to disclose information?

Answer 179

A defendant must: * Know the failure to disclose is or might be false or misleading (i.e. recklessness is not enough); * Act dishonestly; and * Intend to make a gain for themselves or another, or cause or risk loss to another (note a gain need not actually be realised).Example: freelance worker has several contracts simultaneously requiring them to notify their clients if they enter any work with a competitor. A failure to do so could potentially amount to fraud by failure to disclose.

Question 180

What is the actus reus of fraud by failure to disclose information?

Answer 180

The existance of a legal duty to disclose and a failure to do so.* contractual duty* statutory duty (e.g. company prospectuses)* customs of particular trades* fiduciary relationships* professionals and clients * claiming benefits etc.

Question 181

What are the elements of the offence of fraud by abuse of position?

Answer 181

A defendant commits fraud by abuse of position if:* they dishonestly abuse their position (of trust or loyalty - note, they do not need to know they occupy this position)* in which they are expected to safeguard the financial interests of another* and intend to make a gain for themselves or another, or cause or risk loss to another (note a gain need not actually be realised).This can be by act or omission Abuse is a question of fact to be decided by the jury.Examples: * D makes unwarranted deductions from V, their employee. Such a relationship falls within the definition of a position of trust.* Overbilling a very trusting client* Stealing from a demented granny

Question 182

What is the mens rea of fraud by abuse of position?

Answer 182

• A defendant must have intended to use their position to make a gain or cause or risk a loss * A defendant does not need to know that they occupy a position in which they are expected to safeguard the financial interests of another. * Dishonesty is still required.

Question 183

What is the actus reus of fraud by abuse of position?

Answer 183

• The defendant occupies a position with an expectation to safeguard or not to act against the financial interests of another and * they then abuse that position. Examples:* trustee and a beneficiary* director and a company. * professional person (e.g. lawyer) and a client* employee and their employer* two partners * situations within families * within the context of voluntary work.

Question 184

A helps their gullible friend B with her finances and A gets B to transfer several thousand pounds to A’s account for no reason. Has A committed an offence?

Answer 184

Possibly, A’s conduct might satisfy the requirement for active abuse under the offence of fraud by abuse of position.

Question 185

C receives a study grant during her university days from her mother to support her. When she finishes her studies, she continues to take the money and fails to point out to her mother that she is no longer studying and no longer in need of her support. Has C committed an offence?

Answer 185

Possibly, C’s conduct might qualify as abuse by omission for the offence of fraud by abuse of position

Question 186

What are the elements of the offence of criminal damage?

Answer 186

A defendant commits criminal damage if:* they, without lawful excuse, * destroy or damage (impair usefulness or value, or involve effort/expense to repair - may be slight damage)* physical property (excluding wild plants and fungi)* belonging to another (can be co-owned) * intending to do so or being reckless as to whether that property is destroyed or damaged * and know or believe the item belongs to anotherDefences apply if the defendant believes:* That the owner did or would have consented to the damage; or * That the property is in immediate need of protection, and that the means of protection adopted are reasonable having regard to all the circumstances.

Question 187

What is ‘damage’ in the context of criminal damage?

Answer 187

Damage should be given its normal meaning. * It can include situations where damage is slight or can be repaired easily.* Usually, the damage will impair the usefulness (including temporarily) or value of the item or will involve effort or expense to repair. Example: D paints the pavement with water-soluble paints, which easily washes away in the rain. The council decide to clean it. This would still amount to criminal damage.

Question 188

A person who is arrested and placed in a police cell overnight. In their fury at being locked up, the person takes their waterproof blanket and stuffs it into the toilet in the cell. They then flush the toilet repeatedly to try and flood the cell. Does this amount to criminal damage?

Answer 188

Yes. Neither the blanket nor the cell could be used until they had been dried, and so it impaired their usefulness.

Question 189

A person who is arrested and placed in a police cell overnight realises that they have mud on their boots, and so they take this mud and smear it all over the walls. It cost £7 to have it cleaned off later. Does this constitute criminal damage?

Answer 189

Yes, there is expense in restoring the item.

Question 190

What is ‘property’ in the context of criminal damage?

Answer 190

• Damage can be caused only to tangible property. Damage to intangible property such as copyrights and bank accounts are not included in this crime. * Tamed or animals ordinarily kept in captivity are also considered to be property* Wild plants and fungi are specifically excluded * A person cannot be guilty of criminal damage of their own property. However, if property is owned by the defendant and another together, the defendant can commit the offence of criminal damage. Example: * D and A co-own a car. D hits the co-owned car with a golf club. D can be guilty of criminal damage.* D cut back a bush with wild berries. This is not criminal damage* D destroys a crop of genetically-modified food, this will be criminal damage as it is cultivated, not wild.

Question 191

What is the mens rea required for the offence of criminal damage?

Answer 191

The defendant must:* intend to destroy or damage the property or be reckless as to whether the item will be damaged* know or believe that the item belongs to another. Example: D removes wire from a building, believing that the wire is theirs because they installed it. In fact, the wire now belongs to their landlord. D would not be quilty of the criminal damage as they did not know or believe that the wire belonged to the landlord and not to them.

Question 192

When will the defendant have a defence to criminal damage?

Answer 192

A defendant will have a defence to criminal damage if they believe: * That the owner did or would have consented to the damage; or * That the property is in immediate need of protection, and that the means of protection adopted are reasonable having regard to all the circumstances.Example: D breaks a window in their friend’s house to get in when they have forgotten their key. If D honestly believes that their friend would consent to the broken window, they will not be guilty of criminal damage, regardless of whether the friend would actually have consented.

Question 193

A defendant walking along the road, not on the pavement but in the road. Cars are slowing down and beeping at the defendant to get out of the road and onto the pavement. Instead of stepping between two parked cars to get out of the way, the defendant leaps onto the bonnet of a parked car. The defendant causes damage to the car by doing this. Is the defendant guilty of criminal damage?

Answer 193

Yes, the defendant foresees the risk of the damage occurring. It is unreasonable to take the risk as there is no benefit to their action. There is no utility.

Question 194

A toddler is walking in the road. Cars are approaching the toddler at speed and braking hard. The defendant sees the toddler, runs into the street, grabs him, and leaps out of the way of an approaching car, again, onto the bonnet of a parked car. Is the defendant guilty of criminal damage?

Answer 194

No, the defendant foresees the risk of the harm occurring. There is a benefit to his action, a utility that is served by the damage. It is therefore not unreasonable to take the risk.

Question 195

Wedding guests are attending the wedding of their good Greek friend. They enter the reception venue and to their delight, they see a big pile of plates. The guests start smashing them merrily on the dance floor, thinking the plates are there for the traditional smashing ceremony. This is much to the consternation of the bride, the groom, the venue, and all the other guests as the plates were in fact there for the cutting of the cake, which was about to take place. Are they guility of criminal damage?

Answer 195

No, they believed they had consent, even though this belief was incorrect, it is still a defence to the charge of criminal damage.

Question 196

What is aggravated criminal damage?

Answer 196

Aggravated criminal damage mirrors the basic offence, subject to three key differences: * The property damaged can belong to the defendant or to someone else; * There is an additional mens rea requirement that the defendant must intend or be reckless as to the endangerment of life by the damage caused to the property; and * The defences of belief in consent/protecting property do not apply.Note that life need not actually be endangered.

Question 197

What is arson?

Answer 197

Arson is criminal damage by fire* All the elements of criminal damage must be satisfied, and* the fire must cause the damage. If property is simply damaged by smoke and not fire, the offence will be one of criminal damage and not arson

Question 198

What is aggravated arson?

Answer 198

Aggravated arson is aggravated criminal damage by fire. * All the elements of aggravated damage must be satisfied, and* the fire must cause the damage. If property is simply damaged by smoke and not fire, the offence will be one of criminal damage and not arson

Question 199

D finds an abandoned caravan and sets fire to it without checking whether there is anyone inside and realising that there might be. What offence has D committed?

Answer 199

Aggravated criminal damage. D has been reckless about the endangerment of life, foreseeing a risk and taking it anyway. Even if there is no one inside the caravan and no life is actually endangered, it makes no difference. This applies even if D owns the caravan themselves.

Question 200

D finds an abandoned caravan and sets fire to it without checking whether there is anyone inside and realising that there might be. What offence has D committed?

Answer 200

Aggravated criminal damage. D has been reckless about the endangerment of life, foreseeing a risk and taking it anyway. Even if there is no one inside the caravan and no life is actually endangered, it makes no difference. This applies even if D owns the caravan themselves.

Question 201

A person goes round to the ex-spouse’s house with a shotgun and shoots at the ex-spouse through a window. The shot missed the ex-spouse but does break the window. Is the person guilty of aggravated criminal damage?

Answer 201

No. The person intended to endanger life undoubtedly as the person shot at their ex-spouse, but the person needed to have intended to have endangered life by the damage caused, by the broken window. That’s almost undoubtedly not satisfied here. Another charge, like attempted murder, might have been more appropriate.

Question 202

What is a principal offender?

Answer 202

An offender who commits the actus reus and has the relevant mens rea at the same time* The first thing that must be done when more than one party is involved in the commission of an offence is to establish who the principle offender is. * Liability of any other party derives from the principle’s offender

Question 203

What is a co-principle offender?

Answer 203

If two defendants act together for a common purpose in committing the act, they are both considered to be principal offenders.Example: A and B both decide to attack V to kill them. They track V down and begin beating V. V dies but it is not known who struck the fatal blow. Both A and B are guilty of murder.

Question 204

What is an innocent agent?

Answer 204

• If a defendant asks someone to do something that the defendant knows is an offence, but the other party is unaware, the defendant can still be guilty of the offence as a principal offender. * The reason is that the unaware party is effectively just an instrument for the defendant to commit their crime. Example: D asks A to deliver a parcel to V’s house. D has placed a bomb in the parcel, but A is unaware. A delivers the bomb and it explodes, killing V. D is guilty of killing V, but A is not criminally liable.

Question 205

What is accessorial liability?

Answer 205

If a defendant aids, abets, counsels, or procures another offender, they will also be guilty of the principal offence. * The accessory will be charged as the principal offender* The indictment will include “aiding, abetting, counselling, and procuring” in the wording and all 4 words should be used to avoid technical acquitals.* The courts have suggested that there is actually only 2 forms of accessory liability: assisting and encouraging

Question 206

What is “aiding a crime”?

Answer 206

Assisting or helping at the scene at the time of the offenceExample: A drives the getaway car for B when B robs a bank. A has assisted in the commission of the offence and is, therefore, guilty of the offence of robbery.

Question 207

What is “abetting a crime”?

Answer 207

Encouraging or inciting an offence at the scene of a crime at the time of the offenceExample: A is at the scene of the bank robbery. He gives B a pep talk before going in and encourages him to go ahead with the robbery.

Question 208

What is “counselling a crime”?

Answer 208

• Advising or soliciting a crime, usually beforehand and not at the scene of the crime. * There does not need to be a causal link between the counselling and the commission of the offence e.g. Huntsman kills Snow White on the Queen’s instructions, this is a simple example of counselling. However, if the huntsman had secretly decided not to kill Snow White, but then when he gets into the woods gets angry with her and kills her anyway, there would be no causal link but the Queen would still be guilty of counselling.Example: A encourages B to rob a bank. A obtains plans for the bank and its safe. He gives B advice as to the best time to enter the bank and what gun to use.

Question 209

What is “procuring a crime”?

Answer 209

Producing by endeavour Example: A recruits B, a known criminal, to commit a burglary. A obtains the bank floorplans and arranges for a bank employee to leave the safe unlocked.

Question 210

What is a joint enterprise?

Answer 210

The joint enterprise doctrine can impute criminal liability to a secondary participant if:* the participant assisted or encouraged the commission of a crime and * in this assistance or encouragement, the participant intended to assist or encourage the commission of a crime committed by the principal. It is not enough merely to foresee that the principal might commit the crime; the participant must intend that the principal will do so. Example: A and B agree to rob a bank, and B uses a knife to stab and kill a teller during the robbery. A is not guilty of murder merely because A knew that B always carries a knife. To be guilty of murder, A must have intended to assist or encourage B to kill or cause very serious harm during the robbery.

Question 211

Two rival gangs get into a fight. Gang members have weapons. One gang member, Ben, has a bottle. Another, Peter, has a baseball bat. Peter hits someone over the head with the bat causing serious injury. Is Ben liable for GBH?

Answer 211

Whilst he did not hit the victim themselves, he may be liable on the joint enterprise. In terms of mens rea, the court would have to consider whether Ben intended to assist or encourage the commission of GBH. Since Ben is also involved in fighting and also has a weapon, it may well be that the court infers intention to encourage or assist in the commission of GBH here.

Question 212

What are the 2 inchoate/incomplete offences?

Answer 212

• Attempt* Conspiracy

Question 213

What is attempt?

Answer 213

A defendant is guilty of attempting to commit an offence if:* they do not complete the crime but * do something ‘more than merely preparatory’ towards its commission* intending to complete the full offenceA defendant can be guilty of attempt if there is factual impossibility but not if there is legal impossibilityUsually attempt is punished less severly than the actual crime.Example: D laces V’s coffee with poison designed to kill them. V allows the coffee to go cold and throws it away. D would be guilty of attempted murder. However, had D simply obtained the poison but not used it, D would likely be not guilty of attempt. The act of obtaining the poison is ‘merely preparatory’.

Question 214

What is the mens rea of attempt?

Answer 214

Nearly always intention to complete the full offence and, therefore, can be higher than is required for the underlying substantive offence. Example: a defendant must intend to murder someone to be guilty of attempted murder, but they can be guilty of murder if they intend only grievous bodily harm but their actions nevertheless actually kill the victim

Question 215

A defendant goes into a school, where he is not allowed to be, with a rucksack filled with rope, masking tape, and a knife. He hides in the toilets and waits. He is eventually found by a teacher, and the police are called, and the defendant is charged with attempted kidnapping. Is the defendant guilty of attempted kidnapping?

Answer 215

No. Whilst the defendant had taken many preparatory steps to kidnapping a child, he had not gone beyond preparation. He had not done acts more than merely preparatory, and so he was not guilty of attempt.

Question 216

A defendant goes into a school, where he is not allowed to be, with a rucksack filled with rope, masking tape, and a knife. He hides in the toilets and waits. He then meets a boy in the toilets where he was waiting, starts to wrestle with him, and tries to get the boy into his van but then is intercepted by teachers and stopped. Is the defendant guilty of attempted kidnapping?

Answer 216

Yes. At that stage, the acts would have been more than merely preparatory, and the defendant would have embarked on the crime proper.

Question 217

Can a person be guilty of attempt if there is factual impossibility?

Answer 217

Yes. If a defendant attempts to commit an offence that is physically impossible to complete, the defendant can still be guilty of attempt of the offence. Example: D believes there is a diamond in V’s bag. D rummages around in the bag but cannot find the diamond. D could never have committed theft of the diamond because there was no diamond in the bag to steal. However, D would be guilty of attempted theft of the diamond because they rummaged through the bag dishonestly with the intention to permanently deprive the true owner.

Question 218

Can a person be guilty of attempt if there is legal impossibility?

Answer 218

No. If the defendant, having completed all acts that they had intended, would have committed no crime, they cannot be guilty of an attempt when they fail to com- plete all of the intended acts. This is known as legal impossibility, and it is rare. Example: D is a United States citizen. The drinking age in the US is 21. While in London, D gives their 19-year-old roommate a beer. D does not know the legal drinking age in England is 18 and not 21, as it is in the United States. cannot be guilty of attempting to give alcohol to an underage person because the act they intended is not illegal even if they believed it to be.

Question 219

D attempts to sneak cocaine through an airport. In fact, D has talcum powder in their bag, which they thought was cocaine. Is D guilty of attempt?

Answer 219

Yes. They had the mens rea even though the crime was factually impossible.

Question 220

If a defendant is charged with attempt, can they be prosecuted for the completed crime?

Answer 220

No. A defendant charged only with attempt may not be convicted of the completed crime.Note, a defendant charged with a completed crime may be found guilty of either the completed crime or an attempt to commit the crime as long as the evidence presented supports such a verdict.

Question 221

Are attempt crimes punished differently to completed crimes?

Answer 221

Most attempted offences may be punished to the same extent as the completed crime, but courts tend to punish attempt less severely than the crime attempted. Note, attempted murder carries a discretionary life sentence rather than a mandatory life sentence, as in the case of murder.

Question 222

What is the offence of conspiracy?

Answer 222

An agreement between two or more parties to carry out anoffence.* They do not need to complete the crime agreed upon to be guilty of conspiracy and it may be an impossible crime . * The court does not need to identify the other party or parties and complex arrangements may exist (chain relationships and hub-and-spoke relationships)* A conditional agreement is sufficient.

Question 223

What is the actus reus of conspiracy?

Answer 223

Making of an agreement between two or more parties to do something that is criminal i.e. they don’t need to plan how they will commit the criminal offence in order to conspire * The parties need do nothing more in pursuance of this. * The court does not need to identify the other party or parties. Example: D is heard on the telephone to agree with another party to burgle a house. The fact that there is an agreement to burgle is sufficient. D can be found guilty of conspiracy regardless of whether the prosecution can identify the person on the other end of the telephone line.

Question 224

Who can not be party to a conspiracy?

Answer 224

• A child* Someone who lacks mental capacity* Spouses cannot conspire with one another if no other party is involved* The proposed victim Example: D agrees with V to wound him. Neither party is quilty of conspiracy to commit grievous bodily harm because V is the intended victim.

Question 225

Can a conditional agreement between two parties to commit a crime amount to conspiracy?

Answer 225

Yes, the agreement can be conditional but note, just negotiating, encouraging, or assisting will not amount to conspiracy. Examples:* Two robbers agree that if the police arrive on the scene of a bank robbery, they will shoot and kill the cashier. The robbers have entered into a conspiracy to commit murder despite the fact that police might not arrive during the robbery. * If the two robbers were simply talking about whether it would be a good idea to kill the cashier, no agreement will have been made and, therefore, there was no conspiracy.

Question 226

What are the 2 types of conspiracies involving multiple parties?

Answer 226

• ‘Chain’ relationships i.e. one large conspiracy* ‘Hub-and-Spoke relationships i.e. multiple conspiracies

Question 227

What is a ‘chain’ relationship conspiracy?

Answer 227

If there are:* sub-agreements, all of which are regarded as part of a single large scheme * in which all of the parties to the sub-agreements are interested, the situation will be regarded as one large conspiracy involving all of the participants. * The sub-agreements will be characterised as ‘links’ in the overall ‘chain’ relationship. Example: In a large narcotics ring, a smuggler brings heroin into the country and sells it to a wholesaler. The wholesaler sells it to numerous retailers. This is one conspiracy, because this is a ‘chain’ situation. Because the smuggler-wholesaler agreement and the wholesaler-retailers agreements were all part of a scheme in which all participants were interested, there is only one conspiracy.

Question 228

What is a ‘hub-and-spoke’ relationship conspiracy?

Answer 228

• One participant (the ‘common member’) may enter into a number of sub-agreements, each involving different persons. * The common member can be characterised as the ‘hub’ (as of a wheel) and is a member of each conspiracy and each sub-agreement as a ‘spoke’. Members of each ‘spoke’ conspiracy are not members of the other ‘spoke’ conspiracies and have not conspired with the members of those conspiracies. * If it is established that the sub-agreements are reasonably independent of each other-if, e.g. the members of each agreement (other than the common member) have little or no interest in whether the other agreements succeed-the situation will be regarded as involving numerous different and independent conspiracies. Example: A agrees with B, C, and D to help each of them make fraudulent loan applications. Each application is to be an independent action and the applicants in one situation will have no interest in whether the other fraudulent applications are successful. There are 3 conspiracies: A with B, A with C, and A with D. Since the sub-agreements are not part of an overall scheme in which B, C, and D all are interested, this is a ‘hub-and-spoke’ situation. D has not conspired with Band C, but only with A.

Question 229

If two parties agree to commit an impossible crime, can they be guilty of conspiracy?

Answer 229

• Factual impossibility: Yes* Legal impossibility: NoExample: * A and B agree to murder C. They do not know at that point that C is already dead. A and B would be guilty of conspiracy to murder. A and B agree to publish an anti-government pamphlet believing it to be illegal. It is, in fact, not illegal to publish such a pamphlet. Therefore, A and B did not commit a conspiracy.

Question 230

What is the mens rea of conspiracy?

Answer 230

They must intend to form the agreement. * The defendant must intend or know that all parts of the criminal act will be completed by themselves or other parties to the agreement. * Intent exists even if the parties agree to commit an offence only if certain events occur* Note that it is no excuse that the defendant does not know that the substantive offence is a crime. Intention to agree to do the act is sufficient.* At the point that the agreement is formed, there must be at least two parties who intend to form it. Example: A owns a shop from which they buy and sell rare coins. B proposes to sell A some worthless coins at unreasonably high prices and that C will buy those coins from the shop at even higher prices. A does not know that the transactions proposed constitute an illegal money laundering scheme. If A agrees to the scheme, they can be found guilty of conspiracy to commit money laundering.

Question 231

A and B intend to export drugs. B is an undercover police officer, who is only agreeing to export the drugs so that A can be arrested when the drugs land at their destination. At the time that A and B make the agreement, both parties agree that the drugs should be exported. Are they guilty of conspiracy?

Answer 231

Yes, A can be guilty of conspiracy to import drugs because at the time that A and B make the agreement, both parties agree that the drugs should be exported

Question 232

A and B intend to export drugs. B is an undercover police officer, who is only agreeing to export the drugs so that A can be arrested when the drugs land at their destination. If B never intended that the drugs be exported and was going to arrest A before the drugs left the country, would there be a conspiracy?

Answer 232

No, A would not be guilty of a conspiracy because B never had any intention that the act of importation would be carried out by A. However, if A and B conspired with another person C to export drugs, A and C could still be guilty of entering a conspiracy because the two of them would have formed an agreement to commit the offence at the same time.

Question 233

Two bank robbers agree that if the police arrive on the scene of a robbery, they will shoot the cashier. Are they guilty of conspiracy?

Answer 233

Yes, as soon as the two bank robbers agree that they will shoot the cashier if the police arrive, the coincidence of their criminal mental states is satisfied. It does not matter that the agreement is conditional on the arrival of the police

Question 234

If a party to an agreement to commit a crime does not intend that all parts of the criminal act will be completed, is there a conspiracy?

Answer 234

No. The defendant must intend or know that all parts of the criminal act will be completed by themselves or other parties to the agreement (note Anderson case exception). Example: An owner of a bureau de change has a sudden and substantial increase in currency turnover. The owner has suspicion that the money had criminal origins but not knowledge. They are not guilty of conspiracy to commit money laundering. Guilt would require that they intend or know every element of laundering money will be carried out by the other parties, and the crime of money laundering would require that the money be of criminal origin.

Question 235

What is the exception to the rule that a defendant must intend or know that every part of the criminal act will be completed to form a conspiracy?

Answer 235

The Case of Anderson [1986] AC 27 * Where a defendant supplied diamond wire for a prisoner’s escape, he could be part of a conspiracy to escape. * The defendant believed that the escape attempt was doomed to failure and never intended that the prisoner escape.* Nevertheless, the court held that an agreement to commit the offence was enough and the intention that the act be carried out was irrelevant. * This case has not been overturned, but it does not reflect recent cases.* If a question follows this exact pattern of facts, Anderson should be applied. However, in all other cases, you should not follow this result, as later cases have not followed this reasoning.

Question 236

What is the difference between a defence and a lack of criminal capacity?

Answer 236

Capacity is distinct from a defence. * A defence negates the unlawful element of a crime* Lack of capacity excuses the potential defendant from liability because they are unable to commit the alleged offence. This may be caused by age or mental state.

Question 237

What is the age of capacity in criminal law?

Answer 237

10 years old. A child under the age of 10 is incapable of committing a crime.

Question 238

Is a child with criminal capacity treated the same as an adult in criminal law?

Answer 238

No. * It is accepted that a child, especially one who is still of a very young age, may not be able to apply the same ‘moral’ standards as an adult. * The court will assess a child’s ability to form the intent to commit a crime or to be negligent as to whether an offence is committed based on their age.

Question 239

What is required for a defendant to be ‘fit to plead’?

Answer 239

They must be “of sufficient intellect to:* comprehend the course of the proceedings in the trial as to make a proper defence, * to challenge a juror to whom they might wish to object, and * to comprehend the details of the evidence” A defendant must be able to plead, instruct their lawyers and understand the process and charge. If they cannot, the court will hear evidence on the issue.

Question 240

What happens if a defendant is unfit to plead?

Answer 240

There will be a mini trial* The court will decide in a mini trial whether the defendant “did the act or made the omission charged against them as the offence” based on the actus reus alone. * The mens rea is irrelevant as the defendant has been found not to be legally responsible for their actions. If the court finds that the defendant has committed the act, the court has a variety of disposals. * Often the court will send the defendant to hospital for a set period of time or until they improve. * A defendant can also receive a supervision order from the probation service * They could receive an absolute discharge (i,e, no penalty is imposed).* However, in the case of murder, the court is obliged to send the defendant to hospital for an indefinite period.

Question 241

What are the 3 requirements for the defence of necessity?

Answer 241

Sometimes called duress of circumstance* The act was required to avoid some inevitable and irreparable evil* The defendant only did what was reasonably necessary and * The evil inflicted was not disproportionate to the evil avoided. This defence is not available to a charge of murder. If a defendant is faced with a choice of dying or killing another to avoid their own death, they are legally obliged to sacrifice their own life rather than another’s.

Question 242

What are the 7 restrictions on the defence of duress?

Answer 242

At times, the defence can be relied upon if the defendant was subjected to threats and committed an offence to avoid the threats being realised. Restrictions: * It is not available for murder or attempted murder; * There must be a threat of death or serious injury;* The threat must be against the defendant, their close relative or friend, or someone for whom the defendant reasonably feels responsible; * The defendant must have good cause to fear, taking into account the nature of the threat* A person of reasonable firmness with the defendant’s characteristics would have acted the same* The threat must be sufficiently immediate, and there must be no opportunity to take evasive action; and * The defendant cannot rely on the defence if they have voluntarily associated with the maker of the threat, knowing that their associate has violent criminal tendencies.

Question 243

What is self-defence?

Answer 243

Complete defence requiring:* The defendant must be acting to protect themselves, another, or property; or must be acting to prevent a crime or to effect a lawful arrest* Trigger: The defendant must have a subjective honest belief that force was immediately required (belief does not need to be correct) and * Response (note Householder exception): The amount of force the defendant uses must be reasonable (proportionate) based on the facts that the defendant believed them to be at the time (objective test). This can be pre-emptive force

Question 244

D sees A and B involved in a fight. D believes A is attacking B, and so D hits A to stop them. In fact, B is the instigator and the main attacker. Is D guilty of an offence?

Answer 244

No, if D’s belief is honest and the force they use is reasonable, self-defence will be available to them.

Question 245

What does ‘reasonable force’ mean in the context of self-defence?

Answer 245

• It can be pre-emptive, and a defendant can hit someone if they reasonably believe that is the only way not to be assaulted themselves. * The defendant’s reaction must be proportionate to be reasonable e.g. it would not be reasonable for a defendant to smash a bottle over a would-be assailant’s head if they feared that the assailant was about to slap them.

Question 246

What is the householder exception to self-defence?

Answer 246

• Householders may use any force that is not grossly disproportionate or not so disproportionate as to be unreasonable and still rely on self-defence if an intruder enters their home.* The courts will take into account that decisions are made in the heat of the moment in deciding what amounts to grossly disproportionate. * To fall into the householder exception, the defendant must be in a dwelling, must not be a trespasser, and must believe that the victim is a trespasser. Example: D enters V’s property in the middle of the night. V grabs D and places them in a headlock until the police arrive. As a result, D lapses into a coma. It is likely a court would find V’s actions to be reasonable, that is, not ‘grossly disproportionate.

Question 247

In a domestic burglary, the victim of the burglary shot a burglar with his shotgun as the burglar was running away and trying to get out of the property. Can the victim use the defence of self-defence?

Answer 247

No, this was grossly disproportionate and so here they were liable for shooting the burglar in the back.

Question 248

D sees a young man chasing an old man down the street. D thinks the young man is effecting a robbery, and so gives chase. D manages to rugby tackle the young man to the ground, causing him some bruises. In fact, D completely misread the situation. The pair are a father and son and they were racing each other for fun. D is charged with battery. Does D have a defence?

Answer 248

D would be able to plead self-defence, even though D was mistaken, and even though D struck the first blow.

Question 249

What is the effect of intoxication on a defendant?

Answer 249

In certain circumstances, the court will accept the argument that the defendant could not form the mens rea of the offence and find the defendant not guilty. * The law draws a sharp distinction between voluntary intoxication (e.g. when a defendant decides to drink alcohol excessively) and involuntary intoxication (e.g. when someone is ‘spiked’), as well as between dangerous and nondangerous drugs. * Drunken intent is still intent

Question 250

A pours vodka into D’s glass of orange juice. D has no knowledge of this and becomes drunk. In their drunken state, D smashes a window. Is there a defence available to D?

Answer 250

A court may find that D could not form the requisite intent to cause criminal damage because their mental state had been affected by the alcohol. D was involuntarily intoxicated.

Question 251

When will involuntary intoxication fail to be a defence?

Answer 251

• If the defendant’s intent was not formed by the defendant’s intoxicated state, but rather by their own desires and predilections-drunken intent is still intent e.g. A ‘spikes’ the drinks of D, who has pedophilic tendencies. D then sexually assaults a minor. D can be guilty of sexual assault because, even though drunk, D formed the intent to commit the act on the minor. * If a defendant simply does not know the strength of the alcohol or the drug they are taking, the court will not consider this to be involuntary intoxication e.g. D assaults V after drinking alcohol they believe to be of far lower strength than it is. A court will hold that the intoxication is voluntary.

Question 252

How will a court deal with a situation where a defendant’s intoxication was part voluntary, part involuntary?

Answer 252

A court will have to consider how each part of the intoxication, voluntary and involuntary, affected the defendant before making its decision e.g. they drink a double shot of alcohol where they think it was a single shot

Question 253

If a defendant is voluntarily intoxicated, in what circumstances will this provide a defence?

Answer 253

Non-dangerous drugs* if the defendant becomes intoxicated after taking prescription medication, this will be considered intoxication by a nondangerous substance. * In these circumstances, the intoxication can negate mens rea, subject to the proviso that intoxicated intent is still intent.Specific intent offences, can be committed only intentionally; recklessness will not satisfy the mens rea requirement of these offences. * A court will not find that a defendant who was voluntarily intoxicated by alcohol or drugs has the required mental state to desire the outcome of the offence e.g. for s18 GBH with intent, that the victim be severely injured. * This is subject to the proviso that drunken intent is still intent.* Note, if they became intoxivated to gain courage to commit the specific intent crime, they will be guilty of the offence.

Question 254

Does voluntary intoxication by alcohol or drugs operate as a defence to basic intent offences?

Answer 254

No. A crime of basic intent, such as s20 GBH, can be committed either intentionally or recklessly. A court will find that a defendant who voluntarily becomes intoxicated and then causes injury to a victim has been reckless by becoming intoxicated and, therefore, has satisfied the mens rea of a basic intent offence, such as s20 GBH.

Question 255

Can intoxication operate as a defence to strict liability offences?

Answer 255

No, such offences do not require any mental state on the part of the defendant. Example: D, whose drinks have been spiked, is caught on a speeding camera exceeding the speed limit. D will not be able to deny the offence by claiming that they were involuntarily intoxicated. Note: D would have substantial mitigation that might mean that they receive little or no punishment for the offence. However, they would still be guilty of speeding

Question 256

D drinks a bottle of whiskey to build up their courage so that they are able to stab their partner. Can D use the defence of intoxication?

Answer 256

No, a court will find that they had the mental state to kill before drinking; therefore, they are guilty of murder. This will be the case even if, at the actual time that D stabbed their partner, they were so drunk that they did not even intend to cause their partner serious harm. The mental state they had when they started drinking will be sufficient.