Section 2. Criminal Law

Question 1

What is an example of a case where parliament enacts that something is a crime or changes the law to make something no longer crime?

Answer 1

• Ponting case (1985)
• A civil servant was charged with breaching the Official Secrets Act for releasing privileged information about the sinking of the Argentinian warship General Belgrano
• The judge told the jury that any public interest in the information did not provide a defence
• However, the jury acquitted him

Question 2

What is retributive justice?

Answer 2

System of criminal justice based on the punishment of offenders rather than on rehab

Question 3

What is corrective justice?

Answer 3

Idea that liability rectifies the injustice inflicted by one person to another

Question 4

How is criminal law set down and how can it be passed?

Answer 4

• Set down by the state
• Can be passed by an Act of Parliament such as the Theft Act 1968 or by the issuing of regulations

Question 5

What is an example of a case created by judges in modern times on rape?

Answer 5

• Marital rape declared a crime in R v R (1991)
• Before that case, the law held that a husband could not be guilty of raping his wife, as she was assume, by fact of marriage, to consent to sexual intercourse with him
• When the HofLs decided the case of R v R they pointed out that society’s views on the position of women had changed

Question 6

When prosecuting what two elements must be proved?

Answer 6

• Actus reus
• Mens rea

Question 7

What is actus reus?

Answer 7

• The physical element of the crime. Refers to the alleged act itself
• E.g. The killing of a human being

Question 8

What is Mens Rea?

Answer 8

• The mental element of the act or the degree of intent
• E.g. The intention to actually kill the person

Question 9

How do Actus Reus and Mens Rea connect to each other?

Answer 9

• Both of these elements must be together to constitute the offence, however, if the act is ongoing and the presence of men’s rea at any point can be proved, that is sufficient
• If there’s a valid defence, however, even if actus reus and men’s rea are both there, the defendant may still be found not guilty

Question 10

When might a judge create criminal law setting precedents?

Answer 10

• When the law doesn’t appear to cover a particular matter, the judge can rule to criminalise it
• E.g. In Shaw v DPP (1962), the House of Lords decided that in publishing a directory advertising prostitutes and their ‘services’, the defendant was guilt of ‘corrupting public morals’

Question 11

How does acts reus and mens rea work in strict liability cases?

Answer 11

• The prosecution only has to prove actus reus
• A driver who is over the limit may not realise he is over the limit, but he is still committing a criminal offence

Question 12

What are the defences for murder?

Answer 12

• There is no defence to murder however you can have a partial defence which would lower the charge from murder to manslaughter

Question 13

What defences can lead to a ‘not guilty’ verdict when the defendant has committed an offence?

Answer 13

• Insanity
• Automatism (difficult to define, but generally meaning acts done whilst unconscious or involuntary acts)
• Intoxication
• Duress
• Necessity

Question 14

What are general defences?

Answer 14

Defences which arise from specific characteristics of the defendant or the circumstances of the offence e.g. automatism, duress, intoxication, etc.

Question 15

What are mental capacity defences?

Answer 15

The mental state of the defendant at the time of the commission of a crime or at the time of a criminal trial e.g. automatism, diminished responsibility, insanity, intoxication

Question 16

What defences don’t work with murder?

Answer 16

• Duress and necessity are not defences for murder
• Intoxication can only be used as a defence when the defendant DID NOT HAVE the required mens rea

Question 17

How does the standard of proof work in criminal cases?

Answer 17

Need to be ‘beyond reasonable doubt’ in order to convict’ and until that’s proved, the person is presumed innocent

Question 18

How does the Burden of proof work in cases?

Answer 18

On the prosecution to prove that the actus reus and mens rea were both there when the offence was committed and until that’s proved, the person is presumed innocent

Question 19

Why is burden and standard of proof important in criminal cases?

Answer 19

Until they can be proved, the person is presumed innocent.

Question 20

What are the rules around standard of proof and burden of proof?

Answer 20

1. It is up to the prosecution to prove the case
2. This rule applies to all criminal cases and in any criminal court
3. Guilt must be proved beyond reasonable doubt
4. Any reasonable doubt can be raised from either the prosecution or the defence

Question 21

How does the defendant raising a defence work?

Answer 21

• If they wish to they can and it’s up to the trial judge to advise the jury to acquit unless they are satisfied that the prosecution has disapproved the evidence provided by the defence
• In certain cases, such as pleading insanity, there is a reverse onus on the defendant to prove his case

Question 22

What is a key rule of English law relating to standard of proof?

Answer 22

Judges cannot tell the jury how to decide, however, where the judge feels that the standard of proof isn’t good enough then they can tell the jury to acquit the defendant

Question 23

What is a conduct crime?

Answer 23

Where the actus reus is the prohibited conduct itself. There does not have to be a consequence. E.g. drink driving

Question 24

What is a consequence crime?

Answer 24

• Where the defendant doing something (or failing to do something) results in a prohibited consequence
• E.g. assault occasioning actual bodily harm. For the consequence crime to consequence must have an actus reus

Question 25

What is a ‘State of affairs’?

Answer 25

• Where the actus reus is simply the act in itself e.g. carrying an offensive weapon in a public place or being in possession of a controlled substance
• It doesn’t matter what the defendant intends to do with either. The act in itself is an offence

Question 26

What is the voluntary nature of actus reus?

Answer 26

• When someone has not entered into the offence voluntarily e.g. R v Larsonneur (1933)
• In most cases, if D has no control over his actions, then there is no actus reus e.g. having a heart attack in a vehicle while driving
• Where there is absence of fault, the defendant is not liable

Question 27

What are omissions as actus reus?

Answer 27

The rule that failing to act in a certain situation doesn’t make a person guilty of an offence

Question 28

What is a ‘Good Samaritan law’?

Answer 28

• It makes a person responsible for helping other people in an ‘emergency situation’, even though they are complete strangers
• There are many problems with this law e.g. the risk that an untrained person by intervening could do more harm to an injured person

Question 29

What is the exception for omissions as actus reus?

Answer 29

Where a duty to act already exists, then actus reus applies in an omission

Question 30

What is a statutory duty?

Answer 30

• When an Act of Parliament creates liability when there is an omission, an offence can be committed for failing to do something
• E.g. falling to submit to a breath test. (s 1 Children and Young Persons Act 1933)

Question 31

What is a contractual duty?

Answer 31

Where you have a duty of care in your job. e.g. A lifeguard leaving his post unattended where somebody drowns

Question 32

What is relationship duty?

Answer 32

• Where either a parent/child relationship operates, or the other way round, a child caring for an elderly relative
• E.g. R v Gibbins and Proctor (1918)

Question 33

What are the duties which have been undertaken voluntarily?

Answer 33

1. Duties through an official position
2. Duties that arise because the defendant has set in motion a chain of events
3. Duty of doctors

Question 34

How does duties arise through an official position work?

Answer 34

• R v Dytham (1979)
• Contractual duty between policeman and man being beaten up
• The policeman was charged with misconduct as he neglected to perform his duty

Question 35

How does duties arise because the defendant has set in motion a chain of events?

Answer 35

• R v Miller (1983)
• D fell asleep while smoking a cigarette and awoke to his mattress on fire in which he didn’t attempt on putting out the fire but went into a different room and went back to sleep
• The house caught on fire and he was convicted of arson. It wasn’t the mattress being on fire making him guilty but that he had failed to do anything to stop the fire
• This omission meant that he had committed the actus reus for arson
• The House of Lords pointed out they only expected Miller to try it out the smaller fire at a lower risk but if it was too dangerous for him then his duty was to summon the fire brigade

Question 36

What is the duty of doctors?

Answer 36

• There can be cases where doctors decide to stop treating a patient.
• If this discontinuance of treatment is in the best interests of the patient then it is not an omission that can form the actus reus
• (Decided in Airedale NHS Trust v Bland (1993))

Question 37

When a consequence must be proved, what must the prosecution show?

Answer 37

• The defendant’s conduct was the factual cause of that consequence
• It was the legal cause of that consequence and that there was no intervening act which broke the chain of causation

Question 38

What is factual cause?

Answer 38

• Where the consequence would not have happened but for the defendant’s actions e.g. R v Pagett (1983)
• There has been cases where the definition of ‘cause’ has been separated out between the strict legal effect and the ‘but for’ consequence e.g. R v Hughes (2013)

Question 39

What is legal cause?

Answer 39

As long as the prosecution can prove that the defendant’s conduct was more than ‘just a minimal cause’ of the consequence, then they can be convicted e.g. R v Kimsey (1996)

Question 40

What are multiple causes?

Answer 40

When the defendant can be guilty even if their conduct was not the only cause of the consequence

Question 41

What is the ‘thin-skull’ rule?

Answer 41

If the victim suffers an even greater injury owing to their physical or mental state (they suffer more than a ‘normal’ person would, the defendant is liable for that injury e.g. R v Blaue (1975)

Question 42

What is a ‘break in the chain of causation’?

Answer 42

• There must be a direct link from the defendant’s conduct to the consequence
• E.g. D injures V -> V injured in ambulance crash -> V dies
• The intervening act has to be sufficiently serious and independent of the defendant’s conduct however for the defendant to be found not guilty

Question 43

Can medical treatment break the chain of causation?

Answer 43

• It’s unlikely unless it is so independent of the defendant’s acts and in ‘in itself so potent in causing death’ that the defendant’s acts are insignificant
• Three cases show this: R v Smith (1959), R v Cheshire (1991), R v Jordan (1956)

Question 44

Factual v Legal causation - For a offence to be proved, what 3 questions must be asked?

Answer 44

1. But for Defendant’s actions? Would these actions happened
2. Where the Defendant’s actions are more than just a minimal cause
3. Will an intervening act break the chain of causation

Question 45

When can liability apply to the Victim’s own act?

Answer 45

• When the defendant causes the victim to act in such a way that they injure themselves
• E.g. R v Roberts (1972) and R v Marjoram (2000)
• Sometimes the victim’s own act can break the chain of causation. R v Kennedy (2007)

Question 46

How can an unreasonable reaction cause a break in the chain of causation?

Answer 46

• If the victim reacts in a disproportionate or unreasonable way to a threat and in so doing injuries or kills themselves
• E.g. R v Williams and Davis (1992)

Question 47

What is the highest level of mens rea?

Answer 47

• Intention (defendant must have had it in his mind to bring about the consequence)

Question 48

What has been stated in law on intention relating to mens rea?

Answer 48

• In Mohan (1975), the judge made very clear that the reason for carrying out the action was not relevant to the point
• Where mens rea is concerned, the motive is not the issue, it is the intention to carry out the prohibited activity that is

Question 49

What is Direct intent?

Answer 49

• That they intend the specific consequence to occur
• E.g. D puts gun to V’s head, pulls the trigger and kills him. Here, the direct intent was for D to kill V

Question 50

What is oblique intent?

Answer 50

• Where the defendant intends one thing but the actual consequence which occurs is another thing
• E.g. D pushes a concrete block from a bridge onto the roadway with the intention of frightening someone so as the stop him going to work. Concrete block killsdriver of the car - not intended result

Question 51

What is foresight of consequences?

Answer 51

• If the prosecution can prove that the defendant in doing one action with an intended consequence could actually foresee other negative consequences as a result, then he may be proved guilty
• E.g. If i burn down a shop in order to get an insurance claim, but there are people in the shop that get injured, it is reasonable to presume that i knew beforehand that my actions might endanger the people inside

Question 52

What is a natural consequence?

Answer 52

A consequence that might occur

Question 53

What is a probable consequence?

Answer 53

A consequence that most likely WILL occur

Question 54

What is the objective test?

Answer 54

The reasonable person Is what would a person of the same characteristics as the defendant in the same situation what would they have thought at that time

Question 55

What happened in Moloney (1985) relating to consequence?

Answer 55

The problem with the suggestion, in this case, is that it does not address the question in this case whether a consequence was inevitable or not

Question 56

What happened in Nedrick (1986) relating to consequence?

Answer 56

The Court of Appeal tries to correct the problem in Moloney (1986) and suggests whether the outcome was inevitable and whether the defendant was aware of this or not

Question 57

What happened in Woolin (1998) relating to consequence?

Answer 57

The decision in Woollin is that foresight of consequence if its probable needs to be found rather than inferred or suggested in order to prove intention

Question 58

What are the problems of defining the concept of intention where foresight of consequences is concerned?

Answer 58

1. Natural and probable consequence
2. Difficulty for jurors in applying the tests after Moloney and Hancock
3. The change in Woollin from inferring intention to finding intention
4. The fact that there are still two interpretations of Woollin

Question 59

What is subjective recklessness?

Answer 59

• A lower level of mens rea than intention
• When the defendant knows there is a risk of a consequence, but takes the risk anyway e.g. Cunningham (1957)

Question 60

What is negligence?

Answer 60

• Failing to meet the standards of a reasonable person
• What the defendant thought or intended is not relevant
• Lower level of fault that intention and recklessness e.g. driving without due care or attention

Question 61

What are strict liability offences?

Answer 61

Offences where mens rea is not required to be proved in respect of at least one aspect of the actus reus

Question 62

How must strict liability offences be proved?

Answer 62

• It must be proved that the defendant did the relevant actus reus
• It also has to proved that the doing of the actus reus was voluntary
• The idea of not requiring men’s rea for part of the offence is illustrated by two cases: R v Prince (1875) and R v Hibbert (1869)
• Can also be justified if the statute is deemed to cover a matter of public concern e.g. R v Blake (1997)

Question 63

Can a defendant be convicted if his voluntary act resulted in a unforeseen prohibited circumstance (no fault)?

Answer 63

• Yes, can be convicted
• It doesn’t even matter if he was totally blameless. Callow v Tillstone (1900)
• ‘Due diligence’ means where the defendant has done all in his power to prevent the committing of an offence. It doesn’t matter though. Harrow LBC v Shah and Shah (1999)
• Even if the defendant has made an honest mistake, this still doesn’t matter. Cundy v Le Cocq (1884)

Question 64

What is the summary of strict liability?

Answer 64

• The actus reus must be proven
• Voluntary act
• No need to prove mens rea for at least part of the actus reus
• No due diligence available
• No defence of mistake

Question 65

What is statutory interpretation?

Answer 65

When you have a law or act of parliament and it isn’t very clear. When the judge has to try and apply the law in the way he imagined it was intended by parliament

Question 66

What are problems with statutory interpretation?

Answer 66

• It’s usually clear whether Parliament has expressed that men’s rea is required or not from the language used in the statute and this becomes a problem for the courts, when this is not clear. E.g. Sweet v Parsley (1969)
• The wording of an act of parliament may also need to be examined closely to see if there are any sections that either imply strict liability or the defence of due diligence
• If there are express provisions for men’s rea in other sections of the act, then the courts have to think about what parliament’s original intent might have been

Question 67

What is murder?

Answer 67

• Common law offence
• “Murder is the unlwaful killing of a reasonable person in being and under the King’s (Queen’s) Peace with malice aforethought (evil intent), express or implied” - Lord Coke, 17th C.

Question 68

What is the actus reus of murder?

Answer 68

The defendant must have killed a reasonable creature (person), in peace time, in an unlawful manner

Question 69

How is ‘Killed’ explained in the actus reus of murder?

Answer 69

• Can either be by act or omission and must cause the death of the victim
• E.g. In Gibbins and Proctor (1918), the father of a 7 year old girl and his mistress were guilty of murder through omission of failure – they had starved the girl to death

Question 70

Is causation a issue in proving actus reus?

Answer 70

Normally not an issue, the defendant kills the victim directly, but there may be other issues such as poor medical treatment etc.

Question 71

The phrase ‘Reasonable creature in being’ means ‘a human being’, what are the two problems of this area?

Answer 71

• Is a foetus in the womb a ‘reasonable creature in being’?
• Is a victim still considered to be alive (and so a ‘reasonable creature in being’) if they are ‘brain-dead’ but being kept alive by a life-support machine?

Question 72

Can you be charged with homicide/ murder if its the killing of a foetus?

Answer 72

• Homicide cannot be charged in the killing of a foetus
• However, where the foetus is injured and the child is born alive but then dies as a result of the injuries, this CAN be actus reus for murder or manslaughter

Question 73

How does brain death work within murder cases?

Answer 73

• Its not certain whether a person who is ‘brain-dead’ would be considered as a ‘reasonable creature in being’ or not
• Brain death is reasonable grounds for doctors to switch off life support
• However if the intention of the person switching off the machine is to deliberately kill the victim, then they CAN be guilty of murder

Question 74

What is the ‘Year and a day’ rule used for before and after the 1996 Law Reform Act?

Answer 74

• The rule is used to state that unless the victim died as a result of an attack within a year and a day, then the defendant could not be charged
• The Law Reform Act (1996) changed this, so that now, there is no time limit, however if it is more than 3 years, the consent of the Attorney General is needed for the prosecution.

Question 75

What is the difference between ‘illegal’ and ‘unlawful’?

Answer 75

Illegal is if something is illegal you’re breaking the law whereas unlawful is your actions are not supported by law

Question 76

What makes an act not unlawful under a murder case?

Answer 76

• If the killing is done in self defence or defence of another, then it is not unlawful
• This is statutory in s 3(1) of the Criminal Law Act 1967 – ‘a person may use such force as is reasonable in the circumstances in the prevention of crime’.

Question 77

What is a full defence?

Answer 77

if you successfully argue it in court you will get a full acquittal and be set free

Question 78

What must the defendant be judged on when deciding if a full defence is applicable?

Answer 78

• The defendant must be judged on the facts as they genuinely believed them to be and what they believed to be necessary in an unexpected moment of anguish
• This is so even when they might be mistaken by the facts

Question 79

What is explained by the Criminal Justice and Immigration Act 2008 on level of force?

Answer 79

The level of force used is explained as the amount of force the defendant felt at the time was necessary to protect themselves or another

Question 80

What is the mens rea of murder?

Answer 80

Express malice aforethought which is the intent to kill or implied malice aforethought which is the intention to cause grievous bodily harm e.g. Cunningham (1981)

Question 81

Can there be mens rea when there’s a killing of a foetus?

Answer 81

• It is not possible to have the mens rea to kill a foetus
• The child must have been expelled from the mother’s body before this can happen.
• E.g. Attorney-General’s Reference (No 3 of 1994) (1997

Question 82

What occurred after the Moloney (1985) case?

Answer 82

• Rules were set out called the ‘Moloney rules’ that were:
• ‘How likely is death the consequence of the defendants actions?’ which is a objective test, and
• ‘How aware is the defendant of the consequences?’ which is a subjective test

Question 83

How did Nedrick (1986) help change the way juries think when trying to decide if mens rea was present?

Answer 83

• The Court of Appeal suggested juries ask themselves two questions:
  1. How probable was the consequence which resulted from the defendant’s voluntary act?
  2. Did they foresee the consequence?
• The jury are not entitled to infer the necessary intention unless they feel that death or serious injury was a virtual certainty as a result of the act.

Question 84

How did Woollin (1998) developed what was made in Nedrick (1986)?

Answer 84

• The House of Lords disapproved of the 2 questions, but approved the direction in Nedrick
• They suggested switching the word ‘infer’ to ‘find’
• In other words, the defendant needed to appreciate that death or serious injury was a virtual certainty for the jury to FIND the necessary intention.

Question 85

How does transferred Malice work in cases?

Answer 85

• If D fires a shot at Victim 1 (V1) and kills V2, they are guilty of murder.
• The intention may have been to kill V1, but it is transferred to V2

Question 86

What are the rules of force that can justify the defendants actions?

Answer 86

• Self defence/defence of others/prevention of crime are used to justify D’s actions.
• Force must be reasonable in the circumstances.
• D must have genuinely believed this to be situation, even if mistaken.
• Personality disorder cannot be taken into account.
• The amount of force must not be excessive in the circumstances D believed them to be (if deemed excessive, then the defence will fail e.g. Clegg (1995), and Martin (Anthony) (2002))

Question 87

What is diminished responsibility?

Answer 87

Introduced as a partial defence in Homicide Act 1957

Question 88

A person is not to be convicted of murder if they were suffering from an abnormality of mental functioning which?

Answer 88

(a) Arose from a recognised medical condition.

(b) Substantially impaired their ability to understand the nature of their conduct, form a rational judgment or exercise self-control.

(c) Provides an explanation for D’s acts and omissions in doing or being party to the killing

Question 89

What is abnormality of mental functioning?

Answer 89

• A state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal
• E.g. Byrne (1960)

Question 90

What does abnormality of mental function cover?

Answer 90

• Covers both psychological and physical conditions.
• Covers any recognised mental disorder.
• Medical evidence must be provided however

Question 91

What must abnormality of mental functioning be to be a successful defence in court?

Answer 91

• It has to be substantial enough that impaired the defendant’s mental responsibility for their act.
• E.g. In Byrne, the appeal court let the jury make that decision and in Lloyd (1967), it was held that substantial did not have to mean total.

Question 92

What must be substantially impaired for the defence to be successful?

Answer 92

• The ability to understand the nature of their conduct - automatic state, delusional, severe learning difficulties
• The ability to form a rational judgement - paranoia. schizophrenia, battered women’s syndrome
• The ability to exercise self-control

Question 93

What must the defendant prove when claiming abnormality of mental functioning?

Answer 93

• That it provides an explanation for their acts/omissions
• There must be some casual connection between D’s abnormality of function and the killing.
• Abnormality of function need not be the only factor but it still needs to be significant.
• If D was intoxicated at the time, then there is no defence of diminished responsibility if they were not suffering from an abnormality of mental functioning. E.g. Dowds (2012)
• If there is abnormality of function in addition to intoxication, this may make a difference. E.g. Hendy (2006)

Question 94

What is the new approach juries must now decide on when dealing with the defence of abnormality of functioning?

Answer 94

1. Did D have an abnormality of function arising from a recognised medical condition?
2. Did this abnormality substantially impair the ability to understand the nature of their conduct, form a rational judgement and exercise self-control?
3. Did the abnormality cause, or was a significant factor in causing D to kill V?

Question 95

If all three questions can be answered of the modern approach juries decide on under abnormality of function what happens?

Answer 95

Then a conviction of manslaughter can be found, if not, then whilst D will have the defence of diminished responsibility available, they will be guilty of murder.

Question 96

What are the 3 possibilities considered when D was also intoxicated at the time of the killing?

Answer 96

• Was the defendant intoxicated at the time of the killing and tries to use the defence of diminished responsibility?
• Was the defendant intoxicated and had a pre-existing abnormality of mental functioning?
• Was the intoxication due to addiction?
• E.g. R v Wood (2008)

Question 97

What is ADS?

Answer 97

• Alcohol Dependency Syndrome
• Recognised medical condition and it means that someone who is a heavy drinker their mind is damaged

Question 98

What was the 3-stage test for juries used in R v Stewart (2009) to come to a decision on abnormality of mental functioning?

Answer 98

1. Was D suffering from an abnormality of mind (now mental functioning)? Merely having ADS is not enough, the nature and extent of it needed consideration.
2. If so, was the abnormality caused by ADS?
3. If so, was D’s mental responsibility substantially impaired?
   - All the issues would have to be considered including the extent and seriousness of the dependency, the extent that D could control their drinking and whether they were capable of abstinence from alcohol. (Medical evidence would have to be supplied)

Question 99

What is loss of control?

Answer 99

• Partial defence
• Replaces the former defence of provocation
• Set out in s.54 of the Coroners and Justice Act 2009

Question 100

Loss of control s.54(1) ‘Where a person (D) kills or is a party to the killing of another (V), D is not be convicted of murder if?

Answer 100

(a) D’s acts and ommissions in doing or being a party to the killing resulted from D’s loss of self-control
(b) The loss of self-control had a qualifying trigger
(c) A person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D’

Question 101

What points are essential for the defence of loss of control to be successful?

Answer 101

• D must have lost self-control
• There must have been a qualifying trigger
• A person of the same sex and age would have reacted in the same way as D in the same circumstances

Question 102

What did the old defence of provocation have to prove and a case to explain it?

Answer 102

• Had to prove that the loss of control was sudden
• In Ahluwalia (1992), an abused wife failed in her defence of provocation, because although she had endured abuse at the hands of her husband over a number of years, her act of setting him alight with a can of petrol after he had gone to bed was judged to be murder because the provocation was not immediate
• She was granted an appeal on the basis of diminished responsibility however

Question 103

What are the factors that must be present in order for there to be a qualifying trigger for the defence of loss of control?

Answer 103

• D must have a fear of serious violence from V or another identified person. Or…
• A thing or things done or said which constitute circumstances of an extremely grave character or have caused D to have a justifiable sense of being seriously wronged

Question 104

What did the old law of provocation not include?

Answer 104

Did not include a defence of fear of violence e.g. Martin (Anthony) (2002)

Question 105

What does the new law of loss of control have supporting the ‘fear of violence’?

Answer 105

• The new law is clear though that the fear of violence has to be specific either by the victim or another identified person. A general fear of violence isn’t enough
• Dawes (2013) failed because his loss of control was not triggered from a fear of violence when he himself he had triggered the violence in the first place

Question 106

Under s.55 what points have to be shown if D is relying on things said or done as a defence?

Answer 106

1. They were of an ‘extremely grave character’ and
2. They caused D to have a justifiable sense of being seriously wronged
   - The question of whether the circumstances are extremely grave and whether D had a justifiable sense of being seriously wronged should be judged objectively
   - E.g. Zebedee (2012) when a man who had killed his 94 year old incontinent father with Alzheimer’s disease had his conviction upheld because under the 2009 Act, the jury didnt deem the father’s repeated soiling of himself as either circumstances of a very grave character or having a justificable sense of being seriously wronged

Question 107

Can ‘desire for revenge’ be used as a defence?

Answer 107

• Not considered, as was under the old provocation laws e.g. Ibrams and Gregory (1981).
• In Baillie (1995), the C of A did allow D’s appeal because even though the motive of revenge was there, there was evidence of provocation and the original trial judge should have put that to the jury.
• The 2009 Act does not take revenge into account on its own

Question 108

What is necessary for D to show which the 2009 act requires in standard of self control?

Answer 108

• That apart from D’s sex and age, they must have demonstrated the normal degree of tolerance and self-restraint and in the circumstances of D, the reasonable man might have reacted in the same or similar way
• Apart from age and sex, no other personal characteristics, such as hot temper, are relevant in the ability to exercise self-control. E.g. A-G for Jersey v Holley (2005).

Question 109

What other circumstances can be considered in deciding whether the normal person who have reacted in a similar way to D in the same circumstances under self control?

Answer 109

• Depression
• Epilepsy
• Any history of sexual abuse
• E.g. Gregson (2006)

Question 110

How does voluntary intoxication work for D in the defence of self control?

Answer 110

• Voluntary intoxication is not a matter to be considered as part of D’s circumstances
• However if a sober person might have behaved in the same way in D’s circumstances, then a defence of loss of control could be used even if they were drunk.
• Finally, if a person with severe alcohol or drug problems was mercilessly taunted as the qualifying trigger, then this could form part of the circumstances for consideration

Question 111

What happened in Asmelash (2013)?

Answer 111

The C of A refused to allow voluntary intoxication as a defence stating that if parliament had meant it to be, it would have included it in the 2009 Act.

Question 112

How does reacting in the same way to voluntary intoxication when D is claiming the defence of self control work?

Answer 112

• In Van Dongen (2005), it was held that whilst the reasonable man would have lost self-control in similar circumstances, they would not have reacted in the same way, i.e. kicking the victim to death
• In this case, the old defence of provocation failed

Question 113

What is voluntary manslaughter?

Answer 113

An unlawful killing where the defendant doesn’t have the intention, either direct or oblique, to kill or to cause grievous bodily harm

Question 114

What’re the wide range of circumstances involuntary manslaughter covers?

Answer 114

• Top end, behaviour is highly blameworthy, where death or serious injury could be foreseen
• Bottom end, careless behaviour, which may be considered only just blameworthy enough
• Maximum sentence is life; minimum, non-custodial

Question 115

What are the two ways of committing involuntary manslaughter?

Answer 115

• Unlawful act manslaughter
• Gross negligence manslaughter

Question 116

What are the elements of unlawful act manslaughter?

Answer 116

• The defendant must do the unlawful act.
• The act must be dangerous on an objective test.
• It must cause death.
• The defendant must have the required mens rea for the unlawful act.
• A civil tort is not enough, R v Franklin (1883).
• There must be a criminal unlawful act, R v Lamb (1967).
• An omission is also not enough, R v Lowe (1973).
• Along with non-fatal offences, any criminal act can lead to finding unlawful act manslaughter. E.g. Arson, R v Goodfellow (1986)

Question 117

How does the level dangerousness affect the outcome of a case under involuntary manslaughter?

Answer 117

• In an objective test, the act must be dangerous and if a sober and reasonable person recognises some harm relating to the risk, then this is satisfied. R v Church (1965).
• It is not necessary for the defendant to realise the risk of harm. R v Larkin (1943)

Question 118

What must ‘risk of harm’ refer to under involuntary manslaughter?

Answer 118

It must refer to physical harm, R v Dawson (1985), but the defendant must also be aware of the victim’s frailty and the consequences of physical harm to them, R v Watson (1989).

Question 119

Does level of dangerousness impact burglary cases?

Answer 119

Burglary is not usually dangerous, although if carried out in a particular way, this can be taken into account, R v Bristow Dunn and Delay (2013)

Question 120

How does causation work under the unlawful act manslaughter?

Answer 120

Causation is the same for murder, although an intervening act breaks the chain of causation

Question 121

What is the mens rea of involuntary manslaughter?

Answer 121

• When D has no intention of committing murder but caused the death of another through recklessness or criminal negligence
• For the required mens rea for the unlawful act, it’s not necessary for the defendant to realise the act is either dangerous or indeed, unlawful.
• E.g. DPP v Newbury and Jones (1976)

Question 122

What is the actus reus of involuntary manslaughter?

Answer 122

When D breaches a duty of care in a manner which gives rise to an obvious and serious risk of death, is grossly negligent and which caused the death of a human being

Question 123

What is gross negligence manslaughter?

Answer 123

• When the defendant owes the victim a duty of care but breaches it in such a serious way that the victim dies
• E.g. R v Adomako (1994)

Question 124

What are the elements of gross negligence manslaughter set out in R v Adomako (1994)?

Answer 124

• The existence of a duty of care by the defendant towards the victim
• A breach of that duty of care which causes death
• Gross negligence which the jury considers to be so bad as to be criminal

Question 125

Why is duty of care in gross negligence manslaughter

Answer 125

Must exist for the purposes of the criminal law

Question 126

Under duty of care what is the 3 stage Caparo test?

Answer 126

1. Proximity of relationship
2. Reasonable foreseeability of harm
3. Is it fair, just and reasonable to impose a duty of care?

Question 127

What can form the basis of gross negligence manslaughter?

Answer 127

Acts or omissions e.g. R v Singh (1999)

Question 128

How does the creation of a state of affairs work in a duty of care?

Answer 128

• This is when the defendant creates a situation where a duty of care will exist and has become life-threatening and has broken the duty
• E.g. R v Evans (2009)

Question 129

What is an example of a case whereas owes a duty because I’d a relationship with the victim?

Answer 129

In R v Stone & Dobinson (1977), the defendants, who were mentally slow, were convicted of manslaughter because they had failed in their duty to care for an anorexic sister

Question 130

What must happen for someone to be convicted of gross negligence manslaughter?

Answer 130

• The negligence has to be extreme (gross).
• E.g. In R v Bateman (1925) and Adomako (1994)
• A test must be established to determine that the accused’s actions go beyond a matter of compensation and that they become a criminal matter.

Question 131

What is a problem with the test of gross negligence manslaughter?

Answer 131

• That it is up to juries to decide the appropriate standard for ‘gross’ negligence which can obviously be very subjective
• In both Adomako and Stone & Dobinson, whilst the ‘risk of death’ was not clear, the test was expressed as the risk being to the ‘health and welfare’ of the victim.
• Confusion over ‘risk of death’ has now been cleared up by the Court of Appeal, R v Misra and Srivastava (2004).

Question 132

What is assault?

Answer 132

An act that causes the fear of unlawful force

Question 133

What is battery?

Answer 133

The application of unlawful force to another either through intention or recklessness

Question 134

How is assault defined in Nelson (2013)?

Answer 134

Defines assault as something of a physical kind (vocal threat, silent phone call, imitating a violent action etc) that causes somebody to think that they are about to be struck

Question 135

To be convicted of assault, what is required?

Answer 135

• Some act or words
• E.g. R v Constanza (1997) - letters can be an assault and R v Ireland (1997)

Question 136

What are the actus reus and mens rea of assault?

Answer 136

• The actus reus is the fear of unlawful violence
• The mens rea is causing fear

Question 137

What are the actus reus and mens rea of battery?

Answer 137

• The actus reus is the application of unlawful violence
• The men’s rea is the intention of doing so

Question 138

What does the victim need to think about force under an assault and battery case?

Answer 138

• Needs to think that the threat of force is real and possible
• E.g. R v Lamb (1967)
• The force threatened must also be unlawful. If it is lawful, then there is no offence of common assault

Question 139

What does fear of ‘immediate’ force mean?

Answer 139

• Does not mean right now, but that it is imminent or possible shortly
• E.g. Smith v Chief Superintendent of Woking Police Station (1983)

Question 140

What are case examples of situations that can form the actus reus of battery?

Answer 140

• ‘Force’ can also include the slightest touching. E.g. Collins v Wilcock 1984), Wood(Fraser) v DPP (2008)
• In R v Thomas (1985) the Court of Appeal said in the obiter that in touching and rubbing the bottom of a woman’s skirt while she was wearing it was equivalent to touching her

Question 141

What occurred in Fagan v Metropolitan Police Commissioner (1968)?

Answer 141

• The defendant was asked to move his car by a police officer and parked it on his foot
• In this case, although the intention was not to hurt the victim, it became the offence of battery once the defendant had realised what he’d done and refused to move

Question 142

What does the defendant cause in an indirect act?

Answer 142

The defendant causes force to be applied even though he hasn’t directly applied it himself. E.g. Setting a booby trap

Question 143

What occurred in DPP v K (1990)?

Answer 143

By way of appeal to the Queen’s Bench, it was decided that ‘common assault’ which includes both assault and battery could be committed by an indirect act even if the mens rea of intention is not there. Reckless behaviour is enough

Question 144

What is an example of a case of assault caused by omission?

Answer 144

• Cases of assault caused by omission are rare
• DPP v Santa-Bermudez (2003). The policewoman asked D if he had needles in his pocket, he said no. When she put her hand in his pocket she was injured by a needle. It was judged that D’s refusal to tell the police officer the truth amounted to an omission leading to assault causing bodily harm

Question 145

When does the use of force not mean battery?

Answer 145

• If the victim gives genuine consent
• In use of self-defence
• Prevention of crime

Question 146

What has the Children Act 2004 done for battery against children?

Answer 146

It now provides that a battery committed on a child is unlawful if it results in any injury

Question 147

How would a battery without an assault outcome occur?

Answer 147

If the victim is unaware that unlawful force is about to be used on him, for instance if the defendant sneaks up behind him, then battery occurs, but without assault since the victim was unaware of the threat

Question 148

What is assault occasioning bodily harm?

Answer 148

• Set out under Offences against the person Act 1861
• Actual bodily harm is the lowest level of injury under s 47
• Triable-either-way offence
• Must be done with the intention of subjecting the victim to unlawful force

Question 149

What is an case example of ABH?

Answer 149

Miller (1954) - ‘any hurt or injury calculated to interfere with the health or comfort of the victim’

Question 150

Is Psychiatric injury classed as ABH?

Answer 150

• It is classed as actual bodily harm but does not include emotions like fear, distress or panic
• E.g. R v Chan Fook (1994)

Question 151

What is the mens rea of ABH s.47?

Answer 151

• No mention of mens rea in the act, but the courts have held it is sufficient for the underlying assault or battery
• Where actual bodily harm occurs, there is no need for the defendant to intend to be reckless. R v Roberts (1971)

Question 152

What is the maximum sentence for ABH s.47?

Answer 152

5 years imprisonment

Question 153

What is GBH s.20?

Answer 153

• Next offence in seriousness after ABH
• Triable-either-way
• A wound must mean an actual cut in the internal skin. Internal bleeding is not sufficient. E.g. R v Wood (1830)
• Grevious bodily harm is really serious. It can include physical, psychiatric or deliberate infection of a disease
• Must be a cut in the internal skin for it to be considered GBH but if its an external cut its ABH

Question 154

What is the maximum sentence for GBH s.20?

Answer 154

Can carry a sentence up to 5 years, same max sentence as s 47

Question 155

What can be taken into account when deciding on GBH?

Answer 155

Victim’s age and health can also be taken into consideration - R v Bollom (2004)

Question 156

What are case examples of GBH cases?

Answer 156

• R v Burstow (1997), serious psychiatric injury
• R v Dica (2004), deliberate infection with a disease

Question 157

How is GBH s.20 interpreted?

Answer 157

• Quite widely
• E.g. R v Lewis (1974), R v Burstow (1997)

Question 158

How was the mens rea determined in Cunningham (1957)?

Answer 158

Uses the word “maliciously” to determine the mens rea either through intention or through recklessness

Question 159

What did Parameter (1991) do for serious injury under GBH s.20?

Answer 159

House of Lords decided that there is no need to foresee a level of serious injury just the intention to cause some harm or through recklessness

Question 160

What is GBH s.18?

Answer 160

• Wounding with intent
• More serious than s 20 and carries a maximum sentence of life imprisonment
• Indictable offence to be tried at Crown Court

Question 161

What is the actus reus and mens rea of GBH s.18?

Answer 161

• Actus reus - wounding or causing grievous bodily harm
• Mens rea - intention to do grievous bodily harm and/or resisting lawful apprehension
• Intention to wound however is not enough. R v Taylor (2009)

Question 162

How is theft defined in the Theft Act 1968?

Answer 162

‘A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it’

Question 163

What is the actus reus of theft?

Answer 163

The appropriation Of property beloning to another

Question 164

What is the mens rea of theft?

Answer 164

Dishonesty, With the intention of permanently depriving the other of it

Question 165

What does the theft act 1968 also state on the offence not just amounting to the physical stealing of the property but?

Answer 165

Can also include coming into the possession of it and the using of it either innocently or not

Question 166

Is selling someone else’s property theft?

Answer 166

• Yes, attempting to sell somebody else’s property is also theft
• E.g. R v Putnam and Hehl (1977)
• Any assumption of the rights of the owner, including destroying property is theft

Question 167

What does the Theft Act 1968 not state on consent to the appropriation?

Answer 167

• The Theft Act 1968 does not state that appropriation has to be without the consent of the owner
• E.g. Lawrence v Commission for Metropolitan Police (1972)

Question 168

What was the point of the case of R v Gomez (1993)?

Answer 168

That this was theft as D knew that the cheques were stolen and also the manager as well but still decided to accept them

Question 169

What occurred in R v Hinks (2000)?

Answer 169

The defendant had technically obtained consent to appropriate property but it would still be classed as theft as the man was old and had ‘limited intelligence’. (Manipulation and exploitation)

Question 170

What occurred in R v Atakpu and Abrahams (1994)?

Answer 170

The Court of Appeal quashed their convictions because the appropriation had happened outside of the country

Question 171

What is ‘tangible’ and ‘intangible’?

Answer 171

• Tangible - Physically property
• Intangible - Intellectual or virtual property

Question 172

What is the definition of property?

Answer 172

• Property has a very wide-ranging definition and can include just about anything that can be owned both tangible and intangible
• E.g. R v Kelly and Lindsay (1998)

Question 173

What is the term ‘real property’ used for?

Answer 173

Used for land and buildings

Question 174

What are the circumstances that S 4(1) and S 4(2) state that the term ‘real property’ can only be done?

Answer 174

• A trustee or personal representative taking land in breach of his duties
  Someone not in possession of the land severing anything forming part of the land from the land
• A tenant taking a fixture or structure from the land let to him
• A ‘thing in action’ can include a bank or a cheque

Question 175

What is the law on stealing of plants, animals and etc.?

Answer 175

In ss 4(3) and 4(4), things like plants and fungi growing wild, along with wide animals are considered things that cannot be stolen

Question 176

What does ‘Belonging to another’ mean under the law of theft?

Answer 176

• Very wide-ranging as it is not always necessary to prove who the legal owner of property is, rather the person who is in control of it at that time
• This could include somebody who has hired a car or even somebody who had originally stolen the property from somebody else!

Question 177

What occurred in R v Turner (No.2)(1971)?

Answer 177

The defendant was convicted of stealing his own car

Question 178

What occurred in R v Woodman (1974)?

Answer 178

The defendant was convicted of theft even though the owner was unaware that the premises was even there in the first place

Question 179

How does proprietary interest work in theft cases?

Answer 179

• When a person owns and is in possession and control of property, they can still be guilty of theft if somebody else has an interest in it
• E.g. R v Webster (2006).
• S 5 outlines other situations where the defendant acts dishonestly causing a loss to another – trust property where the trustee steals it, property received under an obligation or property received by another’s mistake

Question 180

How does s.5(3) deal with property received under obligation?

Answer 180

• S 5(3) deals with situations where property is received under an obligation to deal with it in a particular way
• If the obligation is unclear, this cannot be theft even if say, money paid as a deposit into a business account is expected to be used for one thing, but ends up being used for something else
• E.g. R v Hall (1972)
• If the obligation is very clear on giving the property to someone and they’d decide to do the opposite and do something else then that’s theft
• There may also be a legal obligation in less formal situations e.g. Davidge v Bunnett (1984)

Question 181

How does s.5(4) deal with property received by mistake?

Answer 181

• S 5(4) deals with these obligations
• E.g. Attorney-General’s Reference (No.1 of 1983) (1985). There is a legal obligation to return the property here
• There was a different outcome in R v Gilks (1972)

Question 182

What does s.1(2) state on dishonesty?

Answer 182

States that the motive of the defendant in appropriating the property is irrelevant. They don’t have to gain anything by it.

Question 183

Under s.2(1) behaviour is not regarded as dishonest if?

Answer 183

• S 2 (1)(a) – they have the right to deprive somebody of it in law on behalf of somebody else. For instance, bailiffs.
• S 2(1)(b) – they have the other’s consent
• S 2(1)(c) – the owner of the property cannot be discovered by taking reasonable steps.

Question 184

What is meant by real consent?

Answer 184

Consent given that is consciously considered and thought about. It isn’t real consent if it’s through deception, lack of mental ability or capacity

Question 185

How does s.2(2) deal with the idea of ‘willing to pay’ under the law of theft?

Answer 185

S 2(2) states that it is also theft if property is taken regardless of the owner’s wishes, even if the intention is to pay later

Question 186

What did R v Ghosh (1982) lead to?

Answer 186

The Ghost test

Question 187

What is the Ghost test?

Answer 187

• A two question test.
• First part is objective: was what was done dishonest according to the standards of reasonable and honest people?
• Second part is subjective: did the defendant realise that what he was doing was dishonest by those standards?

Question 188

What occurred in Ivey v Genting Casinos Ltd (2017)?

Answer 188

• The Supreme Court effectively did away with the second part of the Ghosh test. Although only stated in the obiter, it will probably set a precedent and have an impact on criminal cases.
• In essence, Lord Hughes stated that there is no requirement for the defendant to appreciate that his behaviour was dishonest if the jury has already ascertained in the objective test that it is.

Question 189

How is the ‘Intention of permanently depriving’ interpreted under the law of theft?

Answer 189

• This is usually quite obvious particularly if the defendant has taken cash and then spent it for instance.
• It also holds true even if the defendant intends replacing it later e.g. R v Velumyl (1989).
• Some cases are not as clear-cut. S 6 Theft Act clarifies that ‘disposing of’ property includes ‘dealing with’ property e.g. DPP v Lavender (1994).

Question 190

What does s.6 of the theft act deal with and state about borrowing or lending?

Answer 190

• S 6, which deals with the intention to permanently deprive is unspecific about this.
• S 6 states that borrowing is not theft unless it’s for a period and in circumstances making it equivalent to an outright taking or disposal
• E.g. R v Lloyd (1985)
• Conditional intent could be present e.g. R v Easom (1971)
• Law changed in the 1980s where there’s now attempted theft in law

Question 191

What is the definition of robbery stated under S 8 Theft Act 1968?

Answer 191

“A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force”

Question 192

What is the actus reus of robbery?

Answer 192

• Theft and force, or putting to seeking to put anybody in fear of force
• (The force must EITHER BE – immediately at the start or at any time during the theft)

Question 193

What is the mens rea of robbery?

Answer 193

Needs to satisfy that the defendant had the mens rea to steal and intended to use force in doing so

Question 194

Unless there is evidence of a ‘complete theft’ what does that mean for the verdict?

Answer 194

Unless ALL of the elements of theft are present then there is no robbery, just as there is no theft.

Question 195

What occurred in R v Zero (2012)?

Answer 195

Because D had abandoned the car he took, despite using violence on V to obtain it, meant that there was no robbery (because there’d been no theft)

Question 196

What is a case example showing when force is used and the theft is complete, then there’s robbery?

Answer 196

Corcoran v Anderton

Question 197

Does the prosecution need to prove force and threat of force under a burglary case?

Answer 197

Yes, The prosecution also has to prove force or threat of force, although the amount of force used can be small. R v Dawson and James (1976), R v Clouden (1987).
- In P v DPP (2012), it was held that no direct contact between D and V meant no robbery.
- Putting V in ‘fear of force’ is enough for robbery.
- In some situations, there can be robbery even when the victim does not appear to be actually frightened. B and R v DPP (2007).
- If the victim is genuinely frightened by the threat they will say so and it is irrelevant if the victim

Question 198

What factors have not been decided on the section of the theft law on ‘force immediately before or at the time of the theft?

Answer 198

• The definition of ‘immediately’. How long is this? For instance a bank manager who is attacked in his home, his bank branch keys taken and then money stolen from the bank hours later, or even 24 hours later over a weekend?
• A second issue arises at deciding the point of theft is complete. E.g. R v Hale (1979), R v Lockley (1995)

Question 199

What is an event where force and timing wouldn’t be relevant under a theft case?

Answer 199

• If the process of the theft has started and then the defendant is discovered by the victim during the theft if then force is used the timing is not relevant as the theft is ongoing
• So, any force used after the theft is complete does not make it robbery

Question 200

How does force determine the outcome of robbery or theft?

Answer 200

• Force must be used for the purpose of stealing.
• If D has used force on V because of say, an argument, knocks him out, notices afterwards some money that has fallen out of D’s pocket and then takes it; this is theft, not robbery.

Question 201

What’re the key elements of robbery?

Answer 201

• Theft - Which must be completed e.g. Corcoran v Anderton
• Force or threat of force, jury decides what this means e.g. Dawson and James
• On any person, not necessarily on the victim of the theft, but anybody there at the time.
• Immediately before or at the time of the theft, must be a continuing act. If the theft is complete, it is not robbery e.g. Hale
• In order to steal, if force is used for another purpose, it is not robbery, even if D decides afterwards to steal.
• Mens rea, intention to use force to steal

Question 202

Under s.9(1)(a) of Theft Act 1968 for burglary, what does it state?

Answer 202

• Enters a building, or part of a building as a trespasser with intent to:
  -Steal
  -Inflict grievous bodily harm
  -Do unlawful damage

Question 203

Under s.9(1)(b) of Theft Act 1968 for burglary, what does it state?

Answer 203

• Enters a building, or part of a building as a trespasser

-Steals, or attempts to steal, or
-Inflicts or attempts to inflict grievous bodily harm

Question 204

Based on s.9 Theft Act 1968, what’re the two ways of committing burglary?

Answer 204

• (a) the defendant enters with the intention of doing one of the three motives, but doesn’t necessarily mean the ulterior motive has to take place or
• (b) they have to have entered and stolen or inflicted or attempted to inflict grievous bodily harm. Here the intention is irrelevant

Question 205

Under s.9 of the Theft Act 1968 how is ‘entry’ interpreted?

Answer 205

E.g. The jury was asked to consider if entry was deemed to be ‘effective and substantial’ in Collins (1972)

Question 206

Under s.9 of the Theft Act 1968 how is ‘part of a building’ interpreted?

Answer 206

When the trespasser might have permission to be in one part of a building, but not another, this can also be part of burglary e.g. R v Walkington (1979)

Question 207

Under s.9 of the Theft Act 1968 how is ‘building or part of building’ interpreted?

Answer 207

• Includes things like caravans and houseboats
• Used to be confusion e.g. in B and S v Leathley (1979), a freezer container was a ‘building’, but in Norfolk Constabulary v Seekings and Gould (1986), a lorry trailer was not

Question 208

Is someone a trespasser if they have permission to enter?

Answer 208

No, If a person has permission to enter, they are not a trespasser e.g. R v Collins (1972)

Question 209

How must trespassing be present for there to be a charge of burglary?

Answer 209

• The defendant needs to know they were trespassing or were subjectively reckless as to whether they were trespassing
• A person is also a trespasser if they go beyond permission to be somewhere. This means that even when the defendant has permission to be somewhere, if they abuse that permission by using it as an opportunity to steal something, this would probably make them guilty of burglary e.g. R v Smith and Jones (1976).

Question 210

Why is identifying trespassing in shop situations more difficult?

Answer 210

• Because if the defendant has entered the shop with the intention to steal, then, technically, they have gone permission to be there
• This might be burglary, but unless D admits intent to steal, it would be difficult to prove.

Question 211

What is insanity?

Answer 211

• A special verdict – ‘not guilty by reason of insanity’, but this must be proved within the legal rules of insanity.
• This does not apply to strict liability offences because no mens rea is required for these
• Is a full defence to a criminal defence that requires mens rea

Question 212

What did M’Naghten (1843) lead to?

Answer 212

Led to the creation of a legal set of rules for insanity

Question 213

What’re the legal set of rules for insanity?

Answer 213

There must be:
1. A defect of reason.
2. Which must be the result of a disease of the mind.
3. Causing the defendant not to know the nature and quality of their act or not know they were doing wrong.

Question 214

What is the different between psychopaths and sociopaths?

Answer 214

• Psychopath - know exactly what they’re doing but have no fear and have no care and feel invincible
• Sociopath - Doesn’t know right from wrong and just does things with no thought process

Question 215

How does defect of reason work when pleading insanity?

Answer 215

The defendant’s powers of reasoning (ability to make a rational decision) are impaired, then this is a defect of reason and insanity. If they are simply absent-minded or confused, it is not - R v Clarke (1972) - absentmindedness is not an excuse

Question 216

What must defect of reason be caused by?

Answer 216

• Disease of the mind – a legal, not a medical term. This means any disease that affects the mind. R v Kemp (1956)
• R v Sullivan (1984) case ruled that the disease can be any part of the body it has an affect in the mind then a defence can be raised. E.g. R v Hennessy (1989) high blood sugar levels due to diabetes, sleep walking R v Burgess (1991)

Question 217

What factors does not come under insanity but gets confused that it does?

Answer 217

• If the cause of the defendant being in a state of not knowing what they are doing is external (such as a blow to the head), then this is not insanity. E.g. R v Quick (1973).
• If the defendant takes an intoxicating substance which causes a temporary psychotic episode, this is also not insanity. E.g. R v Coley (2013). This is voluntary intoxication.

Question 218

What does nature and quality refer to relating to insanity?

Answer 218

The physical character of the act

Question 219

What are the two way the defendant may not know the nature and quality of the act?

Answer 219

• If the defendant is in a state of unconsciousness or impaired consciousness, this satisfies this part of the M’Naghten Rules.
• If they are conscious, but owing to their mental condition do not understand what they are doing, then this will also work for this part of the test

Question 220

What is an example of a case where it was decided D didn’t know the nature and quality of their act?

Answer 220

In R v Oye (2013), the Court of Appeal decided that the defendant did not know the nature and quality of his act and substituted a conviction for ABH with one of not guilty by reason of insanity

Question 221

Under nature and quality of someone’s act what makes them not be able to use the defence of insanity?

Answer 221

• The defendant knows the nature and quality of their act and that it is legally wrong, despite suffering from a mental illness, they cannot use the defence of insanity
• E.g. R v Windle (1952). The special defence of diminished responsibility did not exist in 1952, so Windle could not use it.

Question 222

What options does the judge have to what to impose on the defendant who successfully pleads insanity and is found not guilty by reason of insanity?

Answer 222

• Send D to a mental hospital - can be a set period of time, indefinitely, or rest of your natural life
• Impose a hospital order (with or without restrictions on terms of release) - They might be sent to treatment usually with some kind of restriction
• Issue a supervision order - If a family members steps up and says that they will be responsible for D
• Issue an absolute discharge - would only count if you had a learning disability or something related
• If the charge was murder, then an indefinite hospital order must be imposed. A release can only be granted in this instance with the consent of the Home Secretary.

Question 223

What is automatism?

Answer 223

A complete defence where the defendant proves that the body acted without any control by the mind due to an external factor

Question 224

What are the two types of automatism?

Answer 224

• Insane automatism and non - insane automatism.
• In legal terms, insane automatism is caused by a “disease of the mind”, while non-insane automatism is linked to external factors, such as a blow on the head or an injection of a drug.
• The distinction is primarily a legal one - the medical profession is unconvinced that there is any substantive difference between the two forms

Question 225

What is insane automatism?

Answer 225

• A disease of the mind within the M’Naghten rules.
• Verdict will be not guilty by reason of insanity.
• E.g. sleepwalking.

Question 226

What is self-induced automatism?

Answer 226

• When the defendant knows that their conduct is likely to bring about an automatic state.
• R v Bailey (1983).

Question 227

What is non-insane automatism?

Answer 227

• A defence when the actus reus of the crime committed by D is not voluntary.
• The defendant must also not have the required mens rea.
• Cause of the automatism must be external such as a blow to the head, sneezing, hypnotism etc.
• Hill v Baxter (1958)
• Reduced or partial control of one’s actions is not sufficient for non- insane automatism. There must be ‘total destruction of voluntary control’. Attorney General’s Reference (No.2 of 1992) (1993).

Question 228

What are specific intent offences?

Answer 228

If the offence the defendant is being charged with requires a specific intent mens rea, like murder, then they can rely on a defence of automatism because they lack that required mens rea

Question 229

What are basic intent offences?

Answer 229

• If D has been reckless in getting into the state of automatism, then they cannot rely on the defence of automatism because subjective recklessness is the sufficient mens rea
• Becoming voluntarily intoxicated through drink or drugs is also no grounds for a defence of automatism. In DPP v Majewski (1977) this was clarified as a reckless course of conduct
• If the defendant is not aware that their actions are likely to lead to a self-induced automatic state in which they might commit a crime, they have not been reckless and can rely on the defence. R v Hardie (1984).

Question 230

Why does the Law Commission regard a defence of automatism as a denial of actus reus?

Answer 230

Because they consider the true basis of the defence as a denial of voluntary ‘action’ due to an external factor

Question 231

What does a complete defence mean?

Answer 231

The defence can’t be made subject to any such orders

Question 232

What are the two scenarios where diabetics have to rely on insane automatism or non-insane automatism?

Answer 232

• A is a diabetic who lapses into a hyperglycaemic coma having not taken insulin, as to plead insane automatism and receives the special verdict regardless of whether he has been at fault in failing to take the insulin
• On the other hand B is a diabetic who takes his insulin but fails to eat and lapses into a hypoglycaemic coma is treated as a sane automaton and can plead not guilty

Question 233

What are the different approaches taken by the courts in relation to sleepwalking?

Answer 233

• According to the decision in R v Burgess 1991, the case is treated as one of insane automatism requiring confinement and treatment. The court considered that, while sleep itself was a normal condition, sleepwalking, in particular violent sleepwalking, was not normal, and constituted a ‘disease of the mind’ within the M’Naghten test.
• Some courts have taken a generous approach and treated it as a plea of sane automatism. E.g. R v Bulrom 2005
• There’s also been inconsistencies of approaches where the defendant has been sleepwalking but was also voluntarily intoxicated. Also by contrast if someone was suffering an episode of parasomnia despite their own voluntary intoxication

Question 234

What is the law on intoxication?

Answer 234

If the defendant have the required mens rea because of their intoxicated state, this may mean they are not guilty

Question 235

How do you judge if someone is guilty or not under intoxication relating to mental capacity defences?

Answer 235

• The intoxication was voluntary or involuntary
• Whether the offence charged is of specific intent or basic intent.

Question 236

What is voluntary intoxication and how does it work?

Answer 236

• If the defendant has voluntarily made themselves intoxicated they have not formed the necessary mens rea for a specific intent offence and are not guilty. Specific intent offences are murder, s. 18 OAPA, theft, robbery and burglary. DPP v Beard (1920)
• If the offence is one of basic intent, then intoxication is not a defence. In these cases, recklessness, such as voluntarily getting drunk or high is enough for the required mens rea - DPP v Majewski (1977).
• If the defendant is suffering from a mental disorder brought about by past voluntary intoxication, then they can use this as a defence - R v Harris (2013)

Question 237

What is involuntary intoxication?

Answer 237

• If the defendant for instance, drinks a soft drink that has been laced or takes prescribed drugs that had an unexpected result, then they did not have the required mens rea and could use the defence of involuntary intoxication - R v Hardie (1984).
• If however they DID have the required mens rea when they committed the offence, despite being involuntarily intoxicated, it is not a defence - R v Kingston (1994).

Question 238

How does an intoxicated mistake link with involuntary intoxication?

Answer 238

• If D is mistaken about a key fact because they were intoxicated, then they have a defence if it is a specific intent offence.
• If the defendant has the basic intent for a particular offence e.g. R v Lipman (1970) there is no defence of intoxicated mistake because he had voluntarily taken drugs and the killing was as a result of reckless behaviour - guilty of manslaughter.
• If the mistake is about another aspect, such as the amount of force needed in self-defence, then D also has no defence e.g. R v O’Grady (1987)

Question 239

What is the current law on voluntary intoxication and intoxicated mistake?

Answer 239

• Criminal Justice and Immigration Act 2008
  A drunken mistake caused through involuntary intoxication cannot be relied upon as a defence.
• S 76(5) whilst reasonable force may be used in the purposes of self defence, defence of another or prevention of crime, this does not enable D to rely upon any mistaken belief attributable to intoxication that was voluntarily induced.
• There is an exception however to the rule on intoxicated mistake. Under the Criminal Damage Act 1971, s 5 if the defendant has an honest belief that the person to whom property belonged would have consented to the damage (even if this belief is justified or not), then a defence where the mistake was made through intoxication can be used – Jaggard v Dickinson (1980)

Question 240

What is self defence?

Answer 240

• Defending oneself from attack and defence of another are common law defences
• Self-defence in the prevention of crime is statutory. s 3(1) Criminal Law Act 1967

Question 241

What sets out what reasonable force is and how?

Answer 241

• Criminal justice and Immigration Act 2008 sets out what reasonable force is
• Allows for the fact that person who is facing attack may not be aware of the level of force they are using if they are using it ‘honestly and instinctively’
• However if the danger from the attacker is over and then excessive force is used, there is no defence - R v Hussain (2010)

Question 242

What did the Crime and courts Act 2013 do for householders in self defence cases?

Answer 242

• Gave them a wider defence provided that D is in or partly in the building that is a dwelling, they aren’t a trespasser and must have believed that V was a trespasser
• Householders aren’t allowed to use any level of force they choose s 76(5a). It’s for a jury to decide what was reasonable and it can - Collins v Secretary of State of State for Justice (2016)

Question 243

What are the additional factors taken into account in judging a case of self defence?

Answer 243

• The defendant must also be judged by the facts, regardless of whether they have made a mistake - reasonable or unreasonable- R v Gladstone Williams (1984). (This has now been made statutory s 76 CJIA 2008)
• A drunken mistake or one made by D when voluntarily intoxicated cannot be taken into account

Question 244

Is duress by threats a eligible self defence of a crime?

Answer 244

• Even if one has been forced to commit a crime owing to a threat of death or serious injury, if they have the mens rea and do the actus reus, they will be liable for that crime.
• If someone threatens your life, unless you commit a crime the next step would be to go to the police
• If however the defendant can prove that they were so terrified that they failed to be an independent actor, the law will allow a defence
• It used to be that a person who had played a secondary role in a murder could use duress – DPP for Northern Ireland v Lynch (1975), but since R v Howe (1987), the H of L’s ruled that it cannot.
• Even a minor, less able to resist pressure, cannot use duress

Question 245

What cases can’t use the defence under duress no longer?

Answer 245

A defence murder, attempted murder or treason (possibly)

Question 246

What does the duress by threat have to be for it to be an eligible defence?

Answer 246

• Has to be serious enough to be a defence. E.g. R v Valderrama-Vega (1985)
• The threat also has to be to the defendant or their immediate family or partner. Possible that this could include a complete stranger (draft Criminal Code proposal)

Question 247

What is the subjective test for duress by threats?

Answer 247

Was the defendant compelled to act as they did because they reasonably believed they had good cause to fear serious death or injury?

Question 248

What is the objective test for duress by threats?

Answer 248

Would a sober person of reasonable firmness, having the characteristics of the accused have responded in the same way?

Question 249

Where was the subjective and objective tests for duress by threats layed down?

Answer 249

Laid down by R v Graham (1982), approved by H of L’s in Howe (1987)

Question 250

What characteristics are taken into account under the objective and subjective tests for duress by threats?

Answer 250

• Age
• Pregnancy
• Serious physical disability
• Recognised mental illness

Question 251

Under duress by threats, how is ‘avenue of escape’ interpreted?

Answer 251

• Duress is NOT available as a defence if there is a safe avenue of escape
• E.g. Gill (1963) - Threatened so he stole a lorry, but had time to escape and raise the alarm. The law cannot be used in this case

Question 252

Under duress by threats, how is ‘Immense of threat’ interpreted?

Answer 252

• The threat need not be immediate but it must be imminent
• E.g. Hudson and Taylor (1971)

Question 253

Under duress by threats, how is ‘self-induced duress’ interpreted?

Answer 253

• Duress is NOT available where:
  -D joins a criminal gang which s/he knows is violent
  -D puts himself in a position where s/he foresaw (or should have foreseen) the risk of being subjected to compulsion
• E.g. Sharp (1987)

Question 254

What is duress of circumstances?

Answer 254

• When the defendant commits an offence owing to the situation they find themselves in e.g. R v Willer (1986)
• It’s sufficient for the defendant to show that they acted as they did out of a fear of serious personal injury or death, they’re not required to prove that the threat was an actual or real threat e.g. R v Cairns (1999)

Question 255

How does the defence of necessity work in cases?

Answer 255

• Sometimes it might be necessary to break the law in order to prevent a greater evil.
• Can have mixed results. E.g. R v Dudley and Stephens (1884) is interesting. They WERE convicted of murder, as necessity was not available as a defence to murder, but this was later commuted to a 6 month prison sentence.

Question 256

What is the Court of Appeal’s test for duress of circumstances and/or necessity as set out in Shayler (2001)?

Answer 256

• Act must be done only to prevent a greater evil.
• The evil must be directed towards the defendant or a person or persons for whom they are responsible.
• Act must be reasonable and proportionate to the evil avoided

Question 257

How can consent be used as a defence to non-fatal offences?

Answer 257

• Where the victim agrees to suffer an injury, strictly speaking there is no offence e.g. R v Donovan (1934)
• Consent must be real and not based on deceit – in R v Tabassum, women had consented to have their breasts measured believing the doctor to be genuine – he wasn’t.
• Consent through fear is also not real e.g. R v Olugboja (1982)

Question 258

What is meant by implied consent?

Answer 258

• In everyday life – sports, in a crowded train or a supermarket, a bit of jostling is accepted as inevitable. This is not battery because we indirectly give our consent by putting ourselves in the situation.
• E.g. R v Barnes (2004)

Question 259

How is consent to minor injuries interpreted?

Answer 259

• Set out under s 47 OAPA 1861, such as agreeing to have a fight to settle differences, is not a defence unless, according to Attorney-General’s Reference (No.6 of 1980) games/sports, lawful chastisement (presumably light spanking or a light slap), reasonable surgical interference, dangerous exhibitions etc.
• The ‘etc’ part has allowed the courts leeway in interpreting when consent to minor injuries is and isn’t in the public interest e.g. R v Brown (1993)

Question 260

Can mistaken belief in consent be used as a defence?

Answer 260

The defendant can use this as a defence if they genuinely believed that the victim consented, even though that belief might be unreasonable e.g. R v Jones (1986)

Question 261

Why is the defence of consent important in cases?

Answer 261

• The need for a defence of consent is clear, if it didn’t exist, then contact sports would be illegal for instance.
• (There can still be criminal acts in contact sports however, such as a deliberate off-the-ball tackle aimed at a player’s legs with the intention to cause serious injury)

Question 262

What matters which are to be considered in consent defences did R v Barnes (2004) set out?

Answer 262

• Intentional infliction of injury – always criminal.
• Reckless infliction of injury in actual play or a moment of temper or over-excitement when play had ceased?
• Off-the-ball injuries.
• Was the play within the rules and practice of the game?

Question 263

Is consent necessary in medical procedures?

Answer 263

• Yes, Consent is necessary in medical procedures either from the patient, or if the patient is unconscious, their relatives.
• If this isn’t possible and the treatment needs to be performed quickly, then the operation CAN be performed without consent

Question 264

Does the defence of consent and euthanasia work together?

Answer 264

• Although a person is entitled to take their own life, nobody can consent to another person assisting in bringing about their own death R (on the application of Pretty) v DPP (2001).
• Those who are incapable of taking their own lives and would need to rely on another to do so, do not however have the opportunity to do so.
• The issue of assisted suicide has been rejected by Parliament however having to come to a head after R (on the application of Nicklinson and another) v Ministry of Justice 2014.

Question 265

What is an attempt?

Answer 265

• When the defendant has tried and failed to commit an offence, it is still right and proper that even though the offence was not actually committed, they should still be criminally liable.
• E.g. attempted murder in R v White (1910)
• Definition is statutory. Defined in S 1(1) of the Criminal Attempts Act 1981

Question 266

What is the actus reus and men’s Rea that has to be proved in confirming someone

Answer 266

• Actus reus - A person does an act which is more than merely preparatory to the commission of the offence
• Mens Rea - With the intent to commit that offence

Question 267

When deciding if D’s action is an attempt what has to be considered under actus reus?

Answer 267

• The act that the defendant commits has to be more than merely preparation for the main crime
• Attorney-Generals Reference (No.1 of 1992)(1993)
• Two questions asked by C of A in R v Geddes (1996)
• The C of A stated that the preparatory acts had to have come to an end and the defendant had to have embarked on the crime proper

Question 268

What did Attorney-General’s Reference (No.1 of 1992)(1993) state?

Answer 268

That D had gone far enough before the last act in order for his offence to be judged as more than merely preparatory

Question 269

What occurred in R v Gullefer (1987)?

Answer 269

D’s actions were just preparatory therefore he was not guilty of attempting to steal

Question 270

What did R v Geddes (1996) lead to?

Answer 270

• At first appears silly because D clearly appears to have gone beyond preparation, but the C of A asked these two questions:
  1. Had the accused moved from, planning and preparation for execution or implementation and
  2., had the accused done an act to show that was attempting or equipping himself to commit the offence?
• If we use these two questions, D hadn’t quite got that far, but it could be argued that he WAS putting himself in that position

Question 271

What cases show situations where the defendant had gone beyond mere preparation?

Answer 271

• R v Boyle and Boyle (1987)
• R v Tosti (1997)
• R v Jones (1990)

Question 272

When deciding if D’s action is an attempt what has to be considered under mens rea?

Answer 272

• For an attempt, the defendant must normally have the same intention as would be required for the full offence
• If the prosecution cannot prove that D had the intention, then D is not guilty of the attempt - R v Easom (1971)
• The problems flowing from this case and others were resolved in Attorney-General’s Reference (Nos 1 and 2 of 1979)(1979) when the C of A decided that if the conditional intent (if there was anything worth stealing) was there, then D could be charged with attempt

Question 273

What is the men’s rea for attempted murder?

Answer 273

• Involves proving a higher level of intention than for the full offence of murder
• The full offence requires that the prosecution proves the defendant had the intention either to kill or to cause grievous bodily harm
• However, for attempted murder, the prosecution must prove an intention to kill
• An intention to cause serious harm is not enough.
• This means that the prosecution always has to prove the higher level of intention for attempted murder e.g. R v Whybrow (1951)

Question 274

How does impossibility work with attempt on offences?

Answer 274

• People may intend to commit an offence and may do everything they possibly can to commit it, but in fact the offence is impossible to commit e.g. trying to kill someone who has already died hours ago from a heart attack
• Originally the courts held that if the full offence was impossible to commit, then D could not be guilty of an attempt
• In R v Shivpuri the courts overruled their previous decision and held that a person could be guilty of an attempt even though the commission of the full offence was impossible

Question 275

Why is it difficult convicting someone on an attempted crime?

Answer 275

• proving the mens rea.
• You have to prove beyond mere preparation.
• You have to be caught at the beginning of the offence (reached a point where the jury believes they’ve embarked on an offence)

Question 276

Has there been call for reform on the OAPA 1861 act?

Answer 276

• There have been many reports published on this area of law over the years
• Not been high on government’s priority list, so none have been implemented

Question 277

What were the 4 key needs for reform on the OAPA act 1861?

Answer 277

1. The 1861 Offences Against the Person Act is out of date
2. There are inconsistencies between the different offences
3. No conformity in the correspondence principle (this principle states that the results which D must intend or foresee should match the results).
4. Much of the language used is archaic

Question 278

Why are acts that are outdated a reason for reform on non fatal offences?

Answer 278

• The 1861 Act is over 150 years; this causes some problems
• There was no understanding of mental health problems at the time, therefore was only a mention of bodily harm, not mental harm
• Not a very clear understanding of the way diseases were transmitted from person to person

Question 279

Why are acts that are inconsistent between offences a reason for reform on non fatal offences?

Answer 279

• S 47 has the same mens as for an assault and battery. It also doesn’t require the defendant to intend or even realise there is a risk of any injury
• S 47 carries a max sentence of 5 years while assault and battery, 6 months - unjust
• Somebody causing a small cut can be charged under s.20 instead of “occasioning actual bodily harm’ under s.47. A small cut often doesn’t equate to grievous bodily harm - unjust
• Sentence for s.20 and s.47 are the same - 5 years, despite s.20 being more serious. Unjust as the level of blame is so different
• No clear hierarchy of offences
• D who intends or foresees the risk of minor injury can be convicted of the serious s.18 if a serious injury occurs when he intends to resist arrest. It is not fair that by intending to resist arrest you could be liable for the same offence as somebody who intended to cause very serious injury

Question 280

Why are acts that involve the ‘correspondence principle’ a reason for reform on non fatal offences?

Answer 280

• The results that D intends or foresees should match the results which actually occur
• In other words, he should not be held liable unless he meant to do it, or knowingly ran the risk of it
• The 2015 Report points out however that a D can indeed be guilty of both a s.20 and s.47 offence without intending or being reckless as to causing harm
• This is a clear breach of the correspondence principle

Question 281

Why are acts that don’t have modern, simplified language a reason for reform on non fatal offences?

Answer 281

• s.20 - ‘maliciously’. Modern language interprets this as the deliberate intention with ill will to the victim. The 1861 Act simply interprets it as simply intending to do harm or being reckless
• The recommendation is that the word ‘reckless’ be used instead
• ‘Inflict’ in s.20, but ‘cause’ in s.18 did ‘inflict’ mean a technical assault had to take place? (Burstoq (1997) resolved this question. It did not)

Question 282

What are the factors that non-fatal offences or defences need to have to work?

Answer 282

• Fit for purpose
• Up-to-date
• Just
• Effective
• Balances principle and policy
• Fair
• Based on sound moral principles

Question 283

What did the Law Commission Report 2015 propose for non fatal offences?

Answer 283

• Proposed a new statute respecting the following principles:
• Clear hierarchy of offences describing harm caused, culpability of the defendant and the maximum penalty in proportion
• Clear and accurate labels for each offence
• All elements of an offence to be set out clearly

Question 284

What three clauses did the Law Commission Report 2015 suggest to add for non fatal offences?

Answer 284

• Clause 1 - the word ‘wounding’ would only be included if it caused serious injury. Life sentence max
• Clause 2 - higher level of mens rea required than in the present s.20. The D would only be guilty if he was aware there was a risk of serious injury. Recklessness still applies. Maximum sentence of 7 years
• Clause 3 - D is guilty if he intentionally or recklessly caused injury. The injury (defined as physical or mental) need not to be serious. 5 years max

Question 285

What report was there for the reform of murder?

Answer 285

• The Law Commission Report 2006 - Murder, Manslaughter and infanticide
• Pointed out that there were many problems with the law on murder

Question 286

Why was the bit-by-bit development in law a problem the report pointed out?

Answer 286

• The main problem with murder cases are the problems raised by foresight of consequence.
• The H of Ls ruled in Moloney (1985) that foresight of consequence was not intention, it was only evidence. In Woollin (1998), they spoke about intention being found in foresight of consequence.
• To further confuse things, the Court of Appeal stated in Matthews and Alleyne (2003) that there was little to choose between a rule of evidence and substantive law.
• This makes it all very unclear.

Question 287

Why was the serious harm rule a problem the report pointed out?

Answer 287

• The report claims that the present offence of murder is too wide
• Somebody who sets out to intentionally murder someone and another who has set out to commit grievous bodily harm (but the consequence results in the victim’s death) are equally guilty of murder

Question 288

What was stated in Cunningham (1981)?

Answer 288

Lord Davies stated that the mens rea for murder should be limited to an intention to kill, but that it was up to Parliament, not judges to change the law.

Question 289

Why is there being no defence available if excessive force is used in self-defence a problem the report pointed out?

Answer 289

• In cases of self-defence or prevention of crime, if the force used is reasonable, then the defendant is not guilty of murder, if however the force used is beyond reasonable, then it is murder.
• It hardly seems fair then that if in doing the above, the defendant is judged to have used excessive force, they are equally as guilty as somebody who set out to kill. Clegg (1995), Martin (Anthony) (2002).
• Coroners and Justice Act 2009 does allow a partial defence of ‘loss of control’ in these situations however.
• Crime and Courts Act 2013 givers wider defence to householders where intruders are concerned, but the degree of force must not be ‘grossly disproportionate’.
• The criticism is why does it have to be different to someone attacked outside and the level of force they can use to someone being attacked indoors and the level of force they can use

Question 290

Why is the defence of duress not being available as a defence to murder a problem the report pointed out?

Answer 290

• Duress cant be used as a defence in murder however.
• E.g. If somebody is forced into being an accomplice to a murder on the threat of being killed themselves unless they cooperate, they would receive the same mandatory life sentence as the killer himself.
• The Law Commission has proposed that duress be used as a complete defence to murder

Question 291

What’s the problem the report pointed out relating to mandatory life sentences and governments sentencing lines?

Answer 291

• They don’t allow sufficient differentiation in sentencing to cover the wide variety of levels of blameworthiness in the current law of murder
• The Criminal Justice Act 2003 stated: Whole life term for serious, premeditated cases, child murders, 30 years minimum for murders of police, prison officers, sexual or sadistic killings, and 15 years minimum for murders not falling into the above categories.
• Under these rules, the defendant in Martin (Anthony) (2002) would have received the same minimum sentence as a contract killer.
• The Law Commission have suggested that murder should be reformed by dividing it into two offences – first degree murder and second degree murder. First degree would be intention to kill, second would be intention to seriously injure but death resulted.
• Mandatory life sentence and guidelines on minimum sentences should only apply to first degree murder

Question 292

What was the governments response to the 2006 commission report?

Answer 292

• Government consultation paper July 2008
• It rejected the idea of two levels of murder offence.
• It accepted the need for a ‘loss of control’ defence in cases of self- defence which was eventually included in the Coroners and Justice Act 2009
• Problems remain however with difficulties in the meaning of intention, lack of a defence of duress and mandatory life sentences.

Question 293

What is the contradiction with the law around euthanasia being illegal?

Answer 293

• It is true that in the UK euthanasia is illegal and criminal. However, the reality is that each case is pursued on its own merits
• E.g. a elderly couple and the wife is dying and her quality of life is diminishing and asks her husbands to peacefully kill her the court may nit pursue conviction as it wouldn’t be in the public’s interests and the police may say it’s not worth it

Question 294

What is the law around assisting suicide and and how is it prosecuted?

Answer 294

• Its illegal under the terms of the Suicide Act (1961) and is punishable by up to 14 years’ imprisonment. Trying to kill yourself is no longer a criminal act however.
• R (on the application of Purdy) v DPP (2009). Mrs Purdy wanted the DPP to issue guidance to Crown Prosecutors on whether or not to pursue prosecutions in certain cases.
• DPP responded in a Policy Guidance Statement. It stated:
• Is it in the public interest to prosecute?
• Each case would have to be considered subjectively.
• A list of factors favouring prosecution and against prosecution must also be included.
• The Court of Appeal sought further clarification from the DPP as to situations where the helper is not a family member and has no emotional ties to the person committing suicide.

Question 295

How does assisted suicide work if you were to go abroad to somewhere that its legal to do?

Answer 295

• Dignitas is a assisted suicide facility in Switzerland and there’s also facilities in Oregon, America
• If a UK national or anybody resident in the UK assists an individual in any way towards suicide, then they will be prosecuted

Question 296

What are the positives of the law surrounding diminished responsibilty?

Answer 296

• Coroners and Justice Act 2009 now gives statutory definitions to things like diminished responsibility.
• Using phrases such as ‘recognised medical condition’, it allows definitions flexible enough to take into account developments in medical knowledge in the future.
• Substantially impaired is also now clearly defined.

Question 297

What problems are there with the defence of diminished responsibility?

Answer 297

• Burden of proof is on the defendant. In most cases when a defence is raised, it is up to the prosecution to disprove it. This may not be fair with diminished responsibility and could be a breach of the European Convention on Human Rights, art 6(2).
• Everyone is presumed innocent until proven guilty by law, so it is unfair for the defendant to have to try and prove their innocence. It is up to the prosecution to prove their guilt.
• The government rejected the Law Commission’s suggestion in their 2006 report that those under 18 could include developmental immaturity under diminished responsibility. Conditions such as learning disabilities and autism are recognised medical conditions, but developmental immaturity is not the same.
• A juvenile cannot use diminished responsibility as a defence if they are not suffering from abnormality of mental functioning.

Question 298

What have been proposals on the change of the law of loss of self-control?

Answer 298

• Law Commission proposed removing loss of self-control criteria owing to the fact that women in abusive relationships may kill after a prolonged period.
• This was rejected. Loss of self- control still needs to be proven, although it doesn’t have to be proven to be sudden.

Question 299

What have been proposals on the change of the law on Sexual infidelity and fear of serious violence under loss of control?

Answer 299

• Finding a partner having sex with another person is still likely to result in a loss of self-control, yet this has disappeared as a defence.
• Fear of serious violence also needs to be proven in loss of self-control. This may prove difficult for the defence

Question 300

What is a problem with the test of gross negligence manslaughter?

Answer 300

• That it is up to juries to decide the appropriate standard for ‘gross’ negligence which can obviously be very subjective
• In both Adomako and Stone & Dobinson, whilst the ‘risk of death’ was not clear, the test was expressed as the risk being to the ‘health and welfare’ of the victim.
• Confusion over ‘risk of death’ has now been cleared up by the Court of Appeal, R v Misra and Srivastava (2004).

Question 301

What’re the main criticisms of the offence of unlawful act manslaughter?

Answer 301

• Covers a very wide range of conduct - If it was more specific and there were different levels of offence then the defendant could be charged with a more appropriate offence. Would also help judges
• Death may be an unexpected result e.g. R v Mitchell (1983)
• A defendant who didn’t realise there was risk of any injury to the victim is still guilty of manslaughter because of the objective test - Having an objective test poses the question why should a defendant be guilty of manslaughter when he or she didn’t realise the risk of some harm occurring to the victim?

Question 302

What was the Law Commissions ideas on the reform of unlawful act manslaughter?

Answer 302

• The Law Commission recommended the abolition of unlawful act manslaughter in 1994/6
• However, it didn’t recommend abolition in its 2006 report where instead it recommended a three-tier structure of homicide offences being: first degree and second degree murder and then manslaughter

Question 303

What were the main criticisms of gross negligence manslaughter?

Answer 303

• The test is circular, as the jury is directed to convict if they think that the conduct was criminal - No sequence of reasoning, and instead the argument goes round in a circle
• The test may lead to inconsistent verdicts, as it depends on what different juries think - different decisions in very similar circumstances. Would make the law fairer if judges made the decision as to whether the defendants conduct was capable of amounting to gross negligence manslaughter
• The civil test for negligence should not be used in criminal cases: the purpose of the two branches of law is quite different

Question 304

What did the 2006 Law Commisson Report recommend on the reform of gross negligence manslaughter?

Answer 304

• Recommended that there should only be gross negligence manslaughter which would be committed where: a person by their conduct causes the death of another, a risk that their conduct will cause death would be obvious to a reasonable person in their position, they are capable of appreciating that risk at the material time, and their conduct falls far below what can reasonably be expected of them in the circumstances.
• Also recommended keeping the rule that gross negligence manslaughter can be committed even when D was unaware that his or her conduct might cause death.

Question 305

What problems have arisen from case decisions on the elements of theft since the Theft act 1968 was passed?

Answer 305

• Appropriation
• Property belonging to another
• Dishonesty
• ‘Community’ or ordinary standards of reasonable and honest people
• Intention to permanently deprive

Question 306

Why is ‘appropriation’ a problem that has arisen from case on the elements of theft?

Answer 306

• Wide interpretation of appropriation: Courts’ rulings post-Theft Act expanded the concept, such as switching price labels, potentially beyond parliamentary intent.
• Timing of appropriation: Gomez established appropriation occurring at a single point, leading to acquittals in Atakpu and Abrahams. Contrastingly, Hale (1979) ruled theft as an ongoing process.
• Consent to appropriation: Issue arises, especially if owner consents. Fraud Act 2006 complicates matters; previously under Theft Act 1968, s 15, consent could lead to theft or obtaining property by deception charges.
• Assumption - Usually a one off event, however, it can be also an ongoing process that happens over a period of time
• Fraud is tricking somebody to give their consent to take or to pay money
• Theft of gifts – Possible for the defendant to be charged with theft even if the property was given to them
• Conflict of civil and criminal law – the civil law on gifts states that once property has been transferred from one owner to another, then it becomes the recipient’s property. Lord Hobhouse stated this to be the case in Hinks
• Reliance on dishonesty to prove theft – finding proof of this can be difficult.
• Need for clarity and certainty in the law – ambiguity around dishonesty and the appropriation. E.g., by placing items in a shopping basket, honest shoppers are technically appropriating.

Question 307

Why is ‘property belonging to another’ a problem that has arisen from case on the elements of theft?

Answer 307

• Definition or property is the broad so this doesn’t usually cause problems
• ‘Belonging to another’ does not necessarily have to mean the legal owner

Question 308

Why is ‘dishonesty’ a problem that has arisen from case on the elements of theft?

Answer 308

• It has been argued that the judge should decide whether dishonesty is a point of law rather than leave it as a matter of fact to the jury.
• There is too much emphasis placed on the objective view of dishonesty rather than the defendant’s intentions

Question 309

What is the problem with the Ghosh test under the laws of theft?

Answer 309

• The jury are first asked to consider whether what was done was dishonest.
• They are then asked whether they believe the defendant realised what they were doing was dishonest by those standards?
• The problem with Ghosh is that if the jury believes the answer to the first question is ‘no’, then they can find the defendant not guilty even if the defendant himself DID know it was dishonest!
• This test leads to longer trials as Professor Griew wrote in 1985 that many defendants will plead not guilty in the hope that juries will decide their behaviour was not dishonest.

Question 310

Why is ‘Community’ or ordinary standards of reasonable and honest people’ a problem that has arisen from case on the elements of theft?

Answer 310

• Griew points out in 1985 and was supported by the Law Commission’s report on the law on fraud in 2002 that people’s moral standards are not set and are bound to vary.
• Jurors’ ages range from 18 to 70 and they come from all walks of life, all with different experiences.
• There is no one common standard anymore.
• You can see the different opinions in DPP v Gohill and another (2007).
• If magistrates and judges cannot agree on what is dishonest, then juries will disagree even more so

Question 311

Why is ‘Intention to permanently deprive’ a problem that has arisen from case on the elements of theft?

Answer 311

• The definition of theft needs to include an intention to permanently deprive.
• Why should it matter if property has been taken unlawfully if the intention was to return it if the intention was to appropriate it in the first place?
• This definition can lead to some odd decisions in appeal cases. E.g. at R v Zerei (2012)

Question 312

What is the evaluation of theft in robbery?

Answer 312

• Robbery requires the theft to be completed but in theft the appropriation occurs at one point in time.
• In Hale (1979) and Lockley (1995), the court viewed the appropriation as a continuing act. Despite the fact that the appropriation had happened before the theft, the court still held that it was robbery.
• In robbery, the theft has to be completed, although not so in burglary.
• In burglary, intention or attempt to steal or use force is sufficient, why not the same in robbery? In other words, it would make more sense in robbery that a person would be guilty if they used force intending to steal or attempting to steal.

Question 313

What is the evaluation of level of force in robbery?

Answer 313

• What constitutes ‘force’ is up to the jury. Not usually a problem with higher levels of force, but different juries might come to different conclusions in lower levels.
• Couden (1987) – the snatching of a handbag.

Question 314

What is the evaluation of level of intention in burglary?

Answer 314

• In s 9(1)(a) the defendant must have had intention on entering to inflict bodily harm, steal something or damage the building (or anything in it) but in s 9(1)(b), intention isn’t necessary, it is just necessary to show that they inflicted bodily harm, or attempted to or stole, or attempted to.
• Protecting people or property? - Whereas the defendant need only intend some damage to property in s 9(1)(a) to be guilty of burglary, they need to have intended to inflict grievous bodily harm to another person, which is far more serious, if that was their intention.
• Sections 9(1)(a) and 9(1)(b) - It seems odd that in s 9(1)(a) a defendant who enters a building as a trespasser with the intention of causing damage is guilty of burglary, but in s 9(1)(b) a defendant who enters without any particular intention and then goes ahead and causes damage is not guilty of burglary. Why is damage not included in s 9(1)(b)? It is easier to prove fact than intention after all.

Question 315

What is the evaluation of conditional intention in burglary?

Answer 315

• In Walkington (1979), the conviction could be seen as unfair because in robbery, intention to steal is not sufficient for the offence – the theft must be completed.
• At the time, Walkington couldn’t be charged with attempted theft if there was nothing to steal, so he was convicted of burglary.
• Nowadays, the law has changed and today, Walkington could be charged with attempted theft instead of burglary

Question 316

What problems did the theft act 1968 have in their laws on robbery and burglary that arised in cases?

Answer 316

• Lack of definitions - The Theft Act 1968 does not define ‘entry’, ‘trespasser’ or ‘part of building’. This has been left up to the courts to interpret – statutory interpretation.
• Entry - ‘Substantial’ and ‘effective’ were words used alongside ‘entry’ in Collins, in Brown only ‘effective’ was used and by the time of ‘Ryan’, only evidence of ‘entry’ . This is inconsistent.
• Building - Not generally a problem, except in cases where something was not originally as a building (like a freezer container) but its use has become that of a building. Will depend case by case.

Question 317

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

Answer 317

• Not generally a problem, but was in Walkington. It was argued at the time that he was a trespasser because he had gone into an area that was surrounded by a counter on three sides and open on the other side but meant for staff only.
• Owing to the fact that the ‘attempted theft’ could not be used at the time, because there was nothing to steal, rather than finding him not guilty of any offence, he was charged with burglary.
• The change in the law now means however that W could be charged with attempted theft (even if it turned out there was nothing to steal).

Question 318

What is the evaluation of a ‘trespasser’ in burglary?

Answer 318

• The defendant either knowing that they are trespassing or simply recklessly not considering whether they are trespassing is a key part of the mens rea of burglary.
• The main problem is the inclusion of ‘going beyond permission’

Question 319

What is the evaluation of a ‘Going beyond permission’ in burglary?

Answer 319

Since a person can be charged with theft, there is no need to extend the law to include going beyond permission in burglary

Question 320

When evaluating insanity what is the problem with M’Naghten rules?

Answer 320

• Date from 1843 when knowledge of mental disorders was very limited
• Much more knowledge is known today on it and there should be a more modern definition

Question 321

When evaluating insanity what is the problem with the legal definition of it?

Answer 321

• Certain mental disorders are not covered, such as irresistible impulses, Byrne (1960). The defendant knows that what they are doing is wrong, but they cannot control their urges
• People suffering from certain physical illnesses can be considered legally insane. Even sleep walkers can come under the definition of insane, Burgess (1991)

Question 322

When evaluating insanity what is the problem with automatism?

Answer 322

• Insanity overlaps with automatism
• It’s necessary to decide whether the defendants automatic state is due to a mental illness or due to external factors
• The courts have decided that those suffering from any illness, mental or physical, which affects their mind or puts them into an automatic state amounts to insanity meaning that the defence of non-insane automatism has been removed from six people as epileptics and diabetics
• This has a serious consequence as those successfully using the defence of authority are entitled to a complete acquittal whereas the judge has to impose some form of order on the defendant on a finding of not guilty by reason of insanity
• Could be argued that the courts are reluctant to allow the defence of automatism because it will lead to a full acquittal, whereas on finding of not guilty by reason of insanity, the judge has to impose an order.

Question 323

When evaluating insanity was is the problem with social stigma?

Answer 323

• In 2013, the Law Commission published a report on the use of the word ‘insanity’.
• It suggested that it is entirely inappropriate and carries social stigma to label those with diabetes or epilepsy as ‘insane’ and insulting to those with mental disorders.
• Despite this, the word remains in law.

Question 324

When evaluating insanity was it the problem with proving it?

Answer 324

• Places the burden of proof on the defendant that they are insane.
• This could be in breach of Article 6 of the European Convention on Human Rights.
• It is also inappropriate to allow a jury to decide whether somebody is insane when this should be left to medical experts.
• Given the fact that the jury decide, there is the risk that they may be confused by the medical terminology or so revolted by the crime that they disregard the medical evidence and find the defendant guilty.
• This is what happened in the case of Peter Sutcliffe, the Yorkshire Ripper and Oye (2013).

Question 325

When evaluating insanity what is a better alternative people are now using?

Answer 325

• Since 1957, an alternative defence, diminished responsibility, for defendants with mental illnesses.
• This can reduce a murder charge to that of voluntary manslaughter.
• It is much more widely used than a defence of insanity and of course does not carry the same social stigma.

Question 326

What reforms/ suggestions have been made in change to the defence of insanity?

Answer 326

• There have been several reports over the years with suggestions for reform of the defence of insanity.
• The most recent by the Law Commission in 2013 suggested a new defence, ‘not criminally responsible by reason of a medical condition.

Question 327

Why does the Law Commission regard a defence of automatism as a denial of actus reus?

Answer 327

Because they consider the true basis of the defence as a denial of voluntary ‘action’ due to an external factor

Question 328

When looking at proposals for reform, what definition was suggested by the draft Criminal Code (1989) on automatism?

Answer 328

• A person is not guilty of an offence if:
  (a) He acts in a state of automatism, that is, his act -
  (I) Is a reflex, spasm or convulsion; or
  (II) Occurs while he is in a condition (whether of sleep, unconsciousness, impaired consciousness or otherwise) depriving him of effective control of his act; and

(b) The act or condition is the result neither of anything done or omitted with the fault required for the offence nor of voluntary intoxication

Question 329

What reforms on automatism did the Law Commission propose in their 2013 discussion paper?

Answer 329

• It had already pointed out in an earlier Scoping Paper that the two defences are so closely related that if there is to be reform of insanity, then automatism must be reformed at the same time.
• The Discussion Paper sets out the present law and the problems with it. However, it recommends that where the accused’s loss of capacity to control his or her actions is due to something the accused culpably did or failed to do, then liability will still turn on the principles of prior fault. In this respect the Law Commission is not proposing any change to the law

Question 330

What is the current law on voluntary intoxication and intoxicated mistake?

Answer 330

• Criminal Justice and Immigration Act 2008
  A drunken mistake caused through involuntary intoxication cannot be relied upon as a defence.
• S 76(5) whilst reasonable force may be used in the purposes of self defence, defence of another or prevention of crime, this does not enable D to rely upon any mistaken belief attributable to intoxication that was voluntarily induced.
• There is an exception however to the rule on intoxicated mistake. Under the Criminal Damage Act 1971, s 5 if the defendant has an honest belief that the person to whom property belonged would have consented to the damage (even if this belief is justified or not), then a defence where the mistake was made through intoxication can be used – Jaggard v Dickinson (1980)

Question 331

When evaluating intoxication what are the two interests at stake?

Answer 331

• On the one hand, people are free to make the choice to become intoxicated if that is what they wish.
• On the other hand, there is what we refer to as the paternalistic argument – that the state has a moral duty to control the consumption of intoxicating substances as they are the major reason for a lot of social disorder and crime, as well as putting a strain on social and health services. Victims of crime also need to have their rights upheld
• It is because of the paternalistic approach that the use of intoxication as a defence is limited.

Question 332

What is the problem with the men’s rea of intoxication?

Answer 332

The normal rules of play are that mens rea and actus reus must coincide, yet with basic intent offences, whilst getting drunk is a reckless course of conduct, there may be quite a time lapse between the decision to drink and committing the actus reus of any offence

Question 333

What’re the important factors debated on when evaluating the laws on self defence?

Answer 333

• Is force necessary?
• Defence is too generous to the defendant
• Pre-emptive strikes
• Excessive force
• Relevance of D’s characteristics

Question 334

When evaluating self defence, what is said on the point of ‘Is force necessary?’?

Answer 334

• E.g. does the victim have to retreat before using force? Not always - R v Bird (1985).
• S 76 CJIA 2008 now makes it clear that as long as it’s for a legitimate purpose, the victim is not under a duty to retreat, but where degree of force is concerned, it can be

Question 335

When evaluating self defence, what is said on the point of ‘defence is too generous to the defendant’?

Answer 335

The defence is available even where the mistake the defendant made is unreasonable. Still a need to balance the rights of a defendant who has made an honest mistake with an innocent victim who has been mistakenly assaulted

Question 336

When evaluating self defence, what is said on the point of ‘pre-emptive’?

Answer 336

The law appears to be clear that somebody who fears an attack has the right to make preparations to defend themselves e.g. Attorney-General’s Reference (No.2 of 1983) (1984)

Question 337

When evaluating self defence, what is said on the point of ‘excessive force’?

Answer 337

• An issue is where a defendant uses excessive force in self-defence.
• Whilst the level of force where householders are concerned is more, it is less when force is used to defend oneself outside of the home.
• This can be quite harsh when somebody kills another whilst claiming to act in self-defence. If convicted, they must be given a life sentence
• However, the level of their fault can be reflected in the tarried period e.g. R v Clegg (1995)
• This leads critics to say that the defence is an ‘all or nothing’ defence. That is, the defendant either succeeds completely with the defence and is found not guilty, or s/he fails and is found guilty. It can be argued that there should be a partial defence where the use of force in self-defence was justified but the defendant used excessive force in the circumstances

Question 338

Why was The Criminal Justice and Immigration Act 2008 passed?

Answer 338

• To clarify the common law on self-defence and it has not altered this point
• There is an objective element to the defence of self-defence.
• In particular, s 76(6) of the Act requires that the amount of force used in the circumstances as the defendant believed them to be should be reasonable

Question 339

What has The Crime and Courts Act 2013 done for the law on self defence?

Answer 339

• Now gives a wider deference to householders where an intruder enters their property.
• They can use the defence of self-defence provided that the degree of force was not ‘grossly disproportionate’.
• For other cases, the degree of force used in self-defence must not be ‘disproportionate’.
• However, again it is probable that Martin would not have been able to use the defence, as shooting someone in the back is likely to be regarded as ‘grossly disproportionate’

Question 340

When evaluating the law on duress by threats and duress of circumstances, what are the problems/ideas spoken about?

Answer 340

• Unavailability for murder
• No allowance for low IQ
• Police protection
• Proposals for reform

Question 341

When evaluating the law on duress by threats and duress of circumstances, what is said on the point on ‘Unavailability for murder’?

Answer 341

• The ruling in R v Howe (1987) that duress is not available on a charge of murder ignores situations e.g. a motorist being hijacked and forced to act as a getaway driver and a person is killed during the hijack.
• In that case Lord Griffith simply dismissed such examples on the basis that it was inconceivable that such a person would be prosecuted.
• It is possible that a prosecution could take place and duress would not be a defence.

Question 342

When evaluating the law on duress by threats and duress of circumstances, what is said on the point on ‘No allowance for low IQ’?

Answer 342

• In R v Bowen (1996) the C of A refused to allow the point of very low IQ to be taken into account. This decision may be seen as harsh.
• A very low IQ can mean that the defendant fails to understand the true nature of matter
• It is suggested that it is a factor that should be taken into account

Question 343

When evaluating the law on duress by threats and duress of circumstances, what is said on the point on ‘Police protection’?

Answer 343

• In R v Hudson and Taylor (1971) the C of A accepted that police protection could not be completely fool-proof
• (Even where a defendant has the opportunity to go to the police and tell them of the threats, many people might be so afraid of the consequences that they would not contact the police)
• The decision in this case has been called into question by the House of Lords’ judgement in R v Hasan (2005). Meaning it is uncertain whether a person who is threatened and who does not contact the police, can rely on the defence of duress.

Question 344

When evaluating the law on duress by threats and duress of circumstances, what is said on the point on ‘proposals for reform’?

Answer 344

• In the Law Commission ‘Legislating the Criminal Code: Offences Against the Person and General Principles’ (1993) (Law Com No. 218), proposed that the defence of duress should be available for all crimes
• In 2006, the Law Commission’s report, ‘Murder, Manslaughter and Infacticide’ (Law Com No. 304) proposed that duress should be allowed as a defence to murder.
• However, as with many Law Commission proposals, neither of these have been acted upon

Question 345

When evaluating the law on consent where the court might accept or decline consent as a defence?

Answer 345

• The courts are prepared to condone acts where the parties are consenting adult heterosexuals, but not where the parties are consenting adult homosexuals
• Also contradictory decisions within cases involving heterosexual couples
• Courts are prepared to accept consent as a defence is in what is called ‘horseplay’ (where those involved in a ‘game’ use ‘friendly’ violence to each other