ISSUES IN 2006, 2005 AND 2004 CRIMINAL LAW EXAMS
S/N
Offence/Defences
Principles & Authorities
Remarks
GENERAL PRINCIPLES
Ø Do not write notes to the examine on your paper
Ø Number the top of each page
Ø Write legibly since the examiner will not second guess your thoughts
Ø Tie any supplementary booklets with your paper
Ø Start each question on a fresh page
Ø Do not use the box for examiners use
Ø Write the question you are writing in the number you answered them
Ø You can be liable for attempted murder s.18. s.20 and s.47 all at the same time (although what charges would be laid in practice is another matter). Subjective recklessness developments in the law, there is a frustrating and widespread inability to say what a defendant must be reckless in respect of.
Ø Murder is not an offence under the Homicide Act 1957 (it is a common law offence). There are no property offence under ss.2.6 of the Theft Act 1968
Ø The offences are clearly set out in s.1
Ø Definition of offence is important, particularly in separating the actus reus from the mens rea
ACTUS REUS
Actus reus - Death of the victim/dead body
Mens rea – intention to cause serious harm/grievous bodily harm (Woolin 1999)
Crime of constructive malice – s.1 of the Homicide Act 1957
Implied malice aforethought – Hyam v DPP (1957) and Cunningham (1982)
MENS REA
Ø Intention to achieve a particular consequence is the mens reas for offences other than murder
Ø Murders – intention to cause serious harm/grievous bodily harm (Woolin 1999).
Ø Lord Steyn ‘… I approach the issues arising on this appeal on the basis that it dies not follow that intent necessarily has the precisely the same meaning in every context of criminal law.
Ø Crime of constructive malice – s.1 of the Homicide Act 1957
Ø Implied malice aforethought – Hyam v DPP (1957) and Cunningham (1982)
Ø This calls for discussion of Caldwell and the new case of C v G and Elliot
Ø Was Elliot a harsh case – a mentally subnormal young girl made a criminal for doing something she wasn’t aware she was doing and couldn’t be aware of. Tell the examiner your opinion and present what the law says
Ø Show your intelligence and perception by demonstrating the difficulties
Ø The general distinction is that intention is having your mind on the thing that you can bring about by your actions, aiming to bring it about.
Ø Recklessness means you are aware of the risk you might bring about but you unjustifiably nevertheless create that risk
Ø It is not clear whether you have to be mentally aware in the case of intention, since when I walk intentionally, I’m am not aware that I’m putting one leg in from, then the other etc since I do this subconsciously, and of course, I can have a continuous intention to kill someone (until I have actually killed them) even while I sleep.
Ø Furthermore, it is not clear that I have to desire, or want to do something when I intend to do it, as when I intend to do household chores but don’t want to
Ø It is not clear what additional aims I have, even though it seem clear that when I formed the intention I was fully aware of what would inevitably follow e.g. where I put new curtains in my office, knowing for certain they will eventually fade; it sounds most odd to say ‘so you put the curtain up with the intention that they would fade?
Ø It does not, though, sound odd in the same way to say that the person who put a bomb in a jumbo jet in order to get property insurance, but who was aware of the certain consequences to human life, did not intend to kill the passengers on the plane
Ø The secret to scoring really good marks on the above question really does require lateral thinking.
Ø The paragraph does not contain a single case, but various case illustrate the points (Steane; Maloney; Hancock; Nedrick; Woolin; Re A; the Law Commission reports 117 and 218;
Ø Independent thought other than regurgitation of the contents of these cases is more important.
Ø In actual fact, the cases are sometimes more confusing because, well, even judges have difficulty of the idea of intention and human responsibility for these concepts go right to the heart of what the criminal law is all about.
Ø You will obtain a good answer for speculating.
Ø The meaning of intention is very interesting and a reading of cases does not reveal a clear meaning.
Ø To say a person did something intentionally requires judgement, in criminal context, a morally evaluative judgement.
Ø Puzzles about intention and virtual certainty – can you intend something that is out of your control; can you intend something for certain about anything about the future
Ø Issues raised in Woolin
Ø Recklessness is a tantalising concept because it is both like and unlike intention. A degree of foresight, below a particular level of probability, moves intention almost imperceptibly to recklessness; this is what motivated Halisham’s well-known judgement in Hyam (1975) AC 55
Ø Being reckless connotes morale blame, whereas doing something intentionally does not. Why? Because D is fully aware of his aim and objective and his act are directed towards that act – complete attempt
Ø General subjective test as confirmed by G
Ø Subjective test, where recklessness converges with high degrees of negligence and which make a great deal of sense. Caldwell (1992) AC 341; Elliot (1993) 2 All ER 1005 (the case bring to light the unfairness inherent in establishing objective standards of responsibility
Ø Candidate likened Caldwell to cases of strict liability and included argument both for and against that form of liability
Ø In criminal law, there is a good case for ‘joined up’ thinking. It would be too quick – it would show rigidity of thought and lack of imagination – to assume that because of G’s overruling of Cadwell, there was no room for discussion, in many ways, attractive test.
Ø Indirect and Oblique intent, the doctrine of double effect. It was also important for candidates to formulate a working definition, it cannot all be done from the case.
Ø Start with something like aiming at, or planning to, or deciding and link intention as a state of mind (not necessarily awareness in sense of full consciousness) to an act, since that is how ‘intention’ is to be distinguished from ‘hope’, desires’ and other mental states.
Ø Another important idea to distinguish from intention is motive, or reason for acting. Indeed it is the link to acts that makes ‘intention’ a central concept of criminal law.
OFFENCE
MURDER
Actus reus - Death of the victim/dead body
Mens rea – intention to cause serious harm/grievous bodily harm (Woolin 1999)
Crime of constructive malice – s.1 of the Homicide Act 1957
Implied malice aforethought – Hyam v DPP (1957) and Cunningham (1982)
Windle (1952) –killing a dog knowingly, he would not succeed with the defence of insanity
Ø It is not a conspiracy to incite suicide as suicide is not an offence, it is nevertheless aiding and abetting of a suicide contrary to the Suicide Act 1961 s.2(1)
MANSLAUGHTER
s.23, s.20 and 47 of the Offences Against the Person Act (1891) - wound and grievous bodily harm.
Constructive manslaughter – was the act unlawful (Church 1966) and dangerous Newbury and Jones 1977; Identify and raised the elements Lamb (1967); Jennings (1990); Goodfellow (1986) there should be no intervening cause between act and death; Dias (2002) court of appeal and Kenney 2 (2005)
Gross negligence manslaughter – duty of care Adamako (1995) HL (Question for the jury); stone and Dabinson (1977) and Miller (1983)b HL
s.24 needs evidence of intent
Cato (1976) heroin is a noxious thing
Consent by V is unlikely to negative Ian’s Criminal Liability – Attorney-General’s Reference (No. 6 of 1980) 1981 and Brown (1944) HL
SEXUAL OFFENCES
HIV amount to grievous bodily harm – Dica (2004); Konzani (2005)
Proof of awareness – Mowatt (1968); Savage and Pacementer (1992)
s.20 OAPA requiring proof of an awareness of risk or some harm; Mowart (1968); Savage and Parmenter (1992)
WOUND AND GRIEVOUS BODILY HARM
s.18 and s.20 of the Offences Against the Person Act (1891) - wound and grievous bodily harm.
THEFT:
Appropriation
Deception
Property of others
Dishonestly
Permanently deprive
Making off without payment
A person is guilty of theft contrary to s.1 of the Theft Act 1968
s.9(1)(a) – Conditional intention
The question of intention to permanently deprive is a question for the jury to determine. s.6 generally applied to borrowing
Permanent deprivation - s.2 of the Theft Act 1968 is only applied where the question indicate belief by D that V would not mind appropriation or took D took reasonable step to locate V
Ghosh (1982) dishonesty, appropriation Gomez (1993) HL
s.2 of the Theft Act 1968 is only applied where the question indicate belief by D that V would not mind appropriation or took D took reasonable step to locate
Deception – s.15 of the TA 1968
Ghosh (1982) dishonesty, appropriation Gomez (1993) HL
s.16 (2)(c) opportunity to earn remuneration or greater remuneration in an office or employment
s.15(4) – deception
s.3 – making off without payment
Ø Appropriation of the salmon
Ø Deception by omission at the checkout
Ø S.15 Lack of dishonesty at the time of filling up so not theft of petrol;
Ø S.16 obtaining pecuniary advantage is to narrow
Ø Making off without payment/question of dishonesty
Ø Was it dishonesty? More than mere resurgitation of Ghosh and a discussion of the value of the test
Ø Doubts on the rightness of that that decision. Was a do-gooder like Robin Hood dishonest
Ø Misguided, mistaken, wrong-headed, but dishonest, does not seem obviously right.
Ø What is the relevance of the time that the defendants acts – or omits – dishonestly
Ø Does appropriation mean anything at all, given that almost any transaction can amount to appropriation
Ø Why was the offence of making off without payment required
Ø Meaning of having paid as required or expected
Ø Definition of Reckless omission
Ø Honesty is an interesting and extremely important topic within the criminal law, since it is the defining moment where what appear to be perfectly ordinary transactions attract the stigma of criminal liability
Ø This is particularly true now that appropriation for theft has been given such a wide and virtually unrestricted meaning (Gomez; Hinks)
Ø Examine the remarks on Ghosh and Robin Hood.
BURGLARY
s.9(1) TA 1968; Jones and Smith (1976)
s.9(1)(a): Entering part of a building with intention to steel – Walkington (1979)
s.9(1)(b) – If you are guilty of theft, you are also guilty of burglary
s.10 – using force (aggravated burglary)
BLACKMAIL
s.21 of TA 1968
ROBBERY
Attempt
s.8 of the TA 1968
ACCOMPLICE
s.8 of the Accessories and Abettors Act 1861 and s.1(1) of the Criminal Law Act 1977.
Hassan (20005) HL – the effect of associate with a dangerous person
Chrastny (1991) – Husband and wife would be liable for conspiracy if there is a third party.
Calhaem (1985) and Person (1992); where the principal is convicted of manslaughter what happens to the accomplice; McKechnie was distinguished in Pearson
ACCOMPLICE TO MURDER
See Powell & English (1998) HL, and the range of cases on mens rea of secondary party
BATTERY AND ASSAULT
Ø S.47 of the Offences Against the Person Act (1891). The section only requires mens rea as to the assault and battery and not the damage caused.
Ø Did a consented to some degree of assault by being in a crowded train in a rush hour. All manners of pushing, shoving etc are possible
Ø Bruise it is not enough to say a actual bodily harm, why not wound or grievous bodily harm. State the text and refer to miller, Eilsenhower and Metharam
Ø Provocation is not an issue until B has died
Ø A’s mens rea
CRIMINAL DAMAGE RECKLESSNESS
ARSON
Ø ss.20 and 47 – Criminal Damage Act 1971
Ø ss.(1)(1) and 1(3) – Arson: Intention or Recklessness both as to the damage by fire and the endangerment of life
Ø Caldwell (1982) HL is not longer relevant to the offence of criminal damage but R v G (2004) HL – where it was ruled that appropriate test is whether the defendant was aware of the risk.
Ø Caldwell would only relevant in an essay question for historical purposes.
For aggravated criminal damage it is not necessary that the property destroyed or damage belong to another
DEFENCES
DURESS
Accomplice to murder cannot take advantage of the defence of duress (Howe 1987) and Graham (1982)
Ø Ortix (1986); Martin (1989), Wright (2000); Shayler (2001) - Defence of duress may apply where a defendant is forced to commit an offence because of threats of serious injury to either him or someone for whom he is responsible for their safety.
Ø Evolution of duress of circumstances in the 1980s. Conway (1989) etc; Gillick (1985) HL existence as a general defence rather than hidden defence ‘the lesser of two evils’
Ø In Conway the Court of Appeal said that the fact amounted to duress of circumstance and that duress was an example of necessity and it does not matter whether it is called duress of necessity.
Ø A (Children) (2000) Brook LJ’s judgement; Lord Goff in Re F(1990) HL on the limit between defence of necessity and duress of circumstances; R v Dudley and Stephens (1884).
Ø Necessity was a defence for murder where for duress of circumstances there is a choice between making and not making personal sacrifice.
Ø Clause 43 of the draft Criminal Code, Law Com. No. 177, 1989
Ø For a long time both murder and treason were thought to be crimes so ‘heinous’ that it is so serous that duress could never be excuse them
Ø Circumstances arose, especially apparent in the terrorist age where it a defendant placed under duress who has actually committed murder could be excused
Ø In Lynch, an innocent person actually had a gone to his head when he drove his IRA captives to kill. Clearly he was an accomplice, but he had a gone to his head
Ø In Lynch it was thought a justifiable distinction could be drawn between principals and accomplices
Ø Simeon LJ, who dissented in that case thought about it and said the distinction is not really satisfactory
Ø What if with a gun at your head, you were forced to push a plunger that that ignited the bomb under a police station some 200 yards away. You are then the principal murder but the same sort of duress seems present.
Ø If the laws says duress extends to excuse an accomplice, as Lynch declares, shouldn’t it also in fairness extend to the principal murder where the circumstances are similar?
Ø How in such circumstances do we reconcile the decision on necessity (Duddley & Stephens, Re A) and Duress?
Ø What is the difference between man-made necessity (duress) and a necessity of nature?
Ø Justification for duress
Ø Should duress be a defence at all
Ø Difficulty in extending duress to murder and treason
Ø Lord Simmon’s extensive, dissenting, treatment of this point in Lynch (1975) AC 653 (very impressive)
Ø Law in the round, the similar, if not identical defence of necessity.
DISTINGUISHING BETWEEN INTENTION AND RECKLESSNESS
DPP v Smith (1961) HL, Moloney 1985
DIMINISHED RESPONSIBILITY
Ø s.2 Homicide Act 1957. The burden of proof is on the defendant to prove the defence on the civil standard – balance of probability. Analyse of the condition and abnormality are within the ambit and terms of the section. This is for the jury to determine on all evidence (Byrne (1960).
Ø If V taunted about her psychiatric condition (consider this in the light of Holley & Smith (2006)
Ø ‘Psychiatric condition’ could not be taken into account to determine reasonable man’s reaction following (Privy Council decision in A-G for Jersey v Holley (2005). Compare with House of Lords decision in Smith (Morgan James) 2001. Watson (1989) and Dawson (1985)
Ø Its definition of mental disorder could be tightened up and that the defence of insanity was now out of date, particularly given the archaic and medically suspect of idea of ‘disease of the mind’
Ø Most candidates were in support of the idea of discretion on the part of the judge in the area of sentencing in the case of serious mental disorder (McNaughten insanity) and for the defence of diminished responsibility to be extend to a wider range of offences
Ø Read Glanville Williams Textbook on Criminal law.
SELF-DEFENCE – MISTAKEN BELIEVE
Mistaken belief allows a defendant to raise of defence of lack of mens rea.
Mistaken belief in the context of voluntary intoxication was dealt with in the decision of Court of Appeal in O’Grady (1987). It also has an impact on O’Connor (1991) and Hatton (2005)
PROVOCATION
s.3 Homicide Act 1957 (quote from the act). The burden of proof remains with the prosecution to disprove the defence once the defendant has raised it.
The judge is not entitled to withdraw subjective question from the jury where there is any evidence that the defendant was provoked (Baillie [1955])
House of Lords ruling in universal characteristics in Camplin (1978) (age, height, size, smell, etc); Ahluwalia (1992), Thorton (1996) Humpreys (1995), Morhall (1996) HL and Luc Thiet Thuam (1997) PC
High-water mark in Smith (Morgan) [2001] HL, Retreat in Privy Council Decision Holley (2006) PC, Relevant characteristic and the standard of control attributable to the reasonable man.
PROVOCATION – Mistaken belief
The rule ‘last straw’ in Person (1992) Thornton (No.2) 1996
Sudden and temporary loss of control (Duffy (1949), Ibrams (1982) Thornton (No.2) 1996
D
AUTOMATISM
The impact of Bailey (1993) on deliberately inducing automatism
Miller Principle
Involuntary act – Lord Denning in Bratty v A-G of Northern Ireland (1961) HL
Hyperglyceamia (lack of insulin); hypoglycaemia (lack of sugar)
M’Naghten Rules if a D’s state of automatism was caused by disease of the mind – which is a question of law for the judge to decide – then he is insane. Sullivan (1993) HL; Hennessey (1989), Bingham (1991) and R v T 1990
Would the decision in Hannessey have been different if the Australian rule that a temporary mental infirmity is automatism (see Falconer (1990) Aus) applied in this jurisdiction.
INTOXICATION (VOLUNTARY/INVOLUNTARY)
Allows a defendant to raise of defence of lack of mens rea (Kingston (1995) HL
NECESSITY
Ø Self defence
Ø Abortion Act 1967
Ø Exception to criminal liability or justification for performing an abortion was based on Bourne (1938) and Newton and Stungo (1958)
Ø Terminally ill and suffering patients – Adams (1957); House of Lords in Bland; Gallick v West Norfolk and Wisbech AHA (1985) HL
Ø Reluctance – Dudley and Stephens (1984); Southwark London Borough v Williams (1971)
Ø Duress of circumstances accepted but cannot be raised for the charge of murder of attempted murder Howe (1987 HL; Gotts (1992)
Ø Requires discussions along the line clearly marked in Re A (Co-joined Twins)
Ø It requires speculation
Ø The point about choosing between two potential victims on the basis of preference for males
Ø Would it have been fairer had J chosen L to survive by tossing a coin
Ø It seems fairer to take into account the fact that K was pregnant then there is a possibility that two lives rather one could be saved
Ø Speculation is such matter is law – Dudley & Stephens, Re A Re Diane Pretty and, particularly, the US case of US v Holmes
Ø The requires a fairly general discussion on the defence of necessity and not an extended accounts of the facts of Re A (Co-joined Twins)
Ø Whether there is general defence of necessity in English law is unclear since first-year students commonly suppose the answers are clear
Ø Give your reason for saying what the law is
Ø Dudley & Stephens held that necessity was not a defence to murder; yet DPP v Lynch held that duress was a defence to murder, at least as a participant
Ø How do you distinguish from circumstances that give rise to duress from those that give rise to necessity?
Ø Only unlawful homicide is murder
Ø What are the ingredients of lawful murder
Ø If you want to answer this question you must be prepared to speculate
INSANITY
Windle (1952) –killing a dog knowingly, he would not succeed with the defence of insanity, unless successful argument that the nature and quality of the act was not known
Ø The question deals with insanity and not duress or provocation
Ø Hyperglycaemia and Hypoglycaemia
Ø Insanity is a very special defence
Ø McNaghten – insanity constitutes mental disorder of a very high degree where the defendant is quite out of touch with events
Ø The defence is not lack of blame but lack of mens rea
Ø An appropriate way of dealing with the defence includes
o Such defendants need treatment and the public in most cases needs protecting
o Special verdict was devised – in some cases ‘unfitness to plead is appropriate and various orders relating to hospitalisation made.
Windle (1952) – Killing a dog knowingly, he would not succeed with the defence of insanity, unless successful argument that the nature and quality of the act was not known
LEGAL CAUSATION
CAUSATION
AND
MORAL EVALUATION
Smith (1959) and Cheshire (1991) – Medical negligence would not break the chain of causation
Smith (1959) - If hospitalised victim of an attack contracted a fatal infection purely by accident, the death of the victim would not be attributed to the defendant
Ø Factual causation and ‘but for’ ‘deminimis’ test
Ø Legal causation
Ø Operative and significant cause
Ø Reasonable foreseeability
Ø Intervening Act
Ø Think skull principle
Ø The level of control the defendant had over the chain of events that ‘factually’ led to the injury – Dear (1996) Crim LR 595. A good criticism of this case is that the unpredictable behaviour of the victim, in not getting adequate medical care attention for injuries inflicted on him by Dear, meant Dear could not have caused the subsequent worsening of and then death of the victim. That reasonable sounding criticism is that because Dear could not have foreseen that the victim might do this he was not morally responsible.
Ø Thing skull principle cannot also be criticized from the same point of view; one cannot reasonably foresee that a victim might fall into that relatively rare category
Ø Dear and thin skull cases place a moral burden on potential criminal offenders not to take risks; this is to employ the morally evaluative reasoning behind strict liability offences.
INTOXICATION
Ø Intoxication and its rules
Ø Relevant cases
Ø Distinction between basic and specific intent
Ø Extra legal set of policies about the control of judges who wishes to have over the imposition of criminal liability on drunken behaviour
Ø A good answer would examine s.6 of the Criminal Justice Act 1967 and parliamentary intention in the light of Majewski
Ø Why should voluntary and involuntary intoxication be clearly distinguished
Ø If you have no control over your actions perhaps because you were secretly given some drug (drug rape would be an example) then you are not to blame and should be criminally liable;
Ø The deterrence point of making people criminally liable would not be furthered
Ø If you have no control over doing x, how could you have been deterred from doing x by the imposition of liability for your action?
Ø A little intelligence and confidence can take you a long way.
CONSENT
MENS REA
Ø An assault cannot take place where the potential victim is not aware of the assault.
Ø There is no transfer malice because offence relating to window would only amount to criminal damage (shop is due for demolition)
Ø Meaning of damage. If glass were broken it was rendered ‘inoperative’ (e.g. A (a Juvenile (1968) Crim LR 689
Ø Since there is no intention to cause damage, meaning of recklessness was requires (G. (2003) HL 50)
Ø C’s retaliation is possibly a reasonable response to the facts as he belief them to be
Ø Did C’ killed A. He did if his action was operating and significant or he reasonably foresaw that death
Ø He seems unlikely he intended to kill A, but he could have intended to cause grievous bodily harm, in which case liability for murder is a possibility
Ø Defences, self-defence (is this ‘reasonable force’ and was it done to prevent further attack?) and provocation (did C suffer a ‘sudden and temporary’ loss of self-control) in the sense of loosing temper.
Ø It is more likely that an unlawful act manslaughter is appropriate as C’s intention is place a in immediate apprehension of battery; in this case self-defence would be possible but not provocation
Discussion of relevant cases, self-defence and provocation
DEFENCES
Ø Mens rea – intention to cause serious harm/grievous bodily harm (Woolin 1999) 1 AC 82; Matthews &Alleyn (2003) EWCA Crim 1229. Defendant foresee virtual certainty of death or grievous bodily harm, the jury cannot infer intention, but must find intention.
Ø Defences
Ø D does not foresee virtual certainty that anyone would be injured
Ø The test is what is actual belief is a jury might have the view that anyone who places a bomb in these circumstances cannot form a clear belief that there is a chance that someone will not be injured
Ø Likely reach of explosion and what sort of judgement is it that the room is so large.
Ø It is clear that D was sufficient unaware of the bombs characteristics even to know when it would precisely explode
Ø Secondly D could argue that by ringing the police he had put in motion a chain of events that would have saved lives had they acted quick enough this transferring the blame to the Police.
Ø D can hope that the police can prevent people being injured, but he can also foresee that if they do not do this in time people might be injured
Ø Analogous scenario painted by Smith in 1990 (‘A note on Intention’ (1990) Crim. LR 85). A man who plants bomb on a plane but does so realising that the bomb has a 50% failure rate. It is arguable that he does not intend the death of the crew or passengers because it is not virtually certain
Ø It is not clear whether D has an overall purpose. It is simply to frighten people it is not necessary to succeed in that purpose by having people injured, D would have appear to escape the Smith-inspired amendment to the draft code.
Ø Third D can claim that he could not reasonably have foreseen the ‘intervening act’ that a school party would take place in the reading room at the time.
Ø Well this argument should probably be put on D’s behalf, but the likelihood that a jury would find that a reasonable person would not foresee that a group of people might be in room in a library at that time seem low.
APPROPRIATION
THEFT
DISHONESTY
Ø There need not be any touching or taking of goods to amount to an appropriation
Ø S.6(1) - Appropriation start the moment D started dealing with other people’s property as an owner regardless of the other’s right
Ø The advantages and disadvantages of the wide conception of appropriation
Ø Taking goods amount to appropriation
Ø Dishonest s.6 of the TA 1968
Ø S.15 deals with collecting a cheque fraudulently
Ø Appropriation under Gomez principle (Gomez (1993) AC 442; Hinks (2001) AC 241
Ø Legal Test of dishonesty
Ø Test of dishonestly (Ghosh Test)
APPROPRIATION
Ø Original concept of appropriation – original criminal Law Revision Committee behind the creation of the Theft Act 1968. An advance of idea behind ‘taking’ which was a requirement under the old Larceny Act
Ø The general principle behind the creation of te new offence of theft was its appeal to the ordinary meaning of language as understood by ordinary, literate people,
Ø The early manifestations of the early principles were discussed in Lawrence v Metropolitan Commissioner (1972) AC 626 and Morris (1983) QB. These cases were the background to Gomez (1993) AC 442, in which Lawrence was confirmed.
Ø The resultant very wide nature of appropriation: It meant that most ordinary civil transaction (e.g. at a shop till) were example of appropriations.
Ø The wide effect of Gomez was thought to be wrong by Smith; on the other hand Glazebook (1991) Cambridge L.J. 389 claims ‘…there was nothing in the definition of stealing in s.1 of the 1968 Act that required the courts to make the trivial and morally irrelevant distinction between someone who dishonestly appropriated another’s property by stealth, and one who did so by deceit. The crook is as dishonest in the one case as the other and the loss to his victim, is exactly the same.
Ø Decisions of the court of appeal following Gomez have indicated some concern with the decision: Gallasso (1993) Crim LR 459 which smith claims should be regarded as per incuriam.
Ø Mazo (1997) 2 Cr App R 518 and Kendrick (1997) 2 Cr App R 524 appear to have affirmed Gomez
Ø Hinks (2000) 4 All ER 833 HL; held that it was immaterial to the question of whether thee was an appropriation that a valid gift had been made, casting douts on Mazo.
Ø The upshot appears to be almost that if there is dishonesty then there is an appropriation, although that suggest that appropriation is many cases is a redundant idea altogether.
Ø Did the development of the meaning of appropriation made any sense.
Ø To have a view on the question whether, when people are accused of having committed theft, their liability includes the meaningless ingredient (appropriation)
Ø Law should be assessed as a set of arguments having significant social repercussions. If a judge is persuaded by the wrong argument his decision to convict will bring about a grave injustice.
WOUND AND GRIEVOUS BODILY HARM
BATTERY, PSYCHIC ASSAULT
Ø The main fault of the poorer answer for this question was lack of specificity in saying what offence H has committed.
Ø Let us assume H cased that injury
Ø He is probably guilty of psychic assault by intentionally or causing I to apprehend an immediate battery
Ø Battery (Indirect) [Martin (1881) 8 QBD 54]
Ø S.47; Battery occasioning injury
Ø Sufficiency of immediacy (Smith v Woking Police (1983) Crim LR 323
Ø Psychic and physical assaults are different offences
Ø s.18 - serious injury (maliciously is swallowed up by the ulterior intent – if you have intention to GBH, then you are malicious)
Ø Second intent, while resisting arrest
Ø s.20 – Grievous bodily harm
Ø Does H intend or reckless toward ‘some harm’ – Mowatt (1968) 1 QB 421
Ø of the Offences Against the Person Act (1891) - wound and grievous bodily harm.
Comments about wound, occasioning and causing, inflicting, technical meaning of malicious, the Mowatt point and double ulterior intent point in s.18
OMISSIONS AS CONSTITUTING THE ACTUS REUS OF MANSLAUGHTER
Ø Thabo Meli (1954) 1 WLR 288 – Principle of omissions as actus reus of manslaughter
Ø Duties arising out of special relationship (stone & Darbinson) 1977 QB 354
Ø Duties arising out of creation of dangerous situation which arguably occurs when L fails to give the insulin injection and also when she leaves K Lying on her face in the hot sun (Miller (1982) QB 352.
STRICT LIABILITY AND FAIRNESS
Ø Good answer would address the fairness of strict liability
Ø Examples of strict liability offences
Ø Is it fair to make a person criminally liable even though they did not have the mens reas to the state of affairs or consequences that is prohibited
Ø Advantages
o It encourages high standards of care
o Removes the great difficulty in some cases of proving mens reas
o Makes the enforcement of regulations easier
o Protect other citizens from the negative consequences of some of these act if they occurred fully
Ø Disadvantages
o It is not clear if the fact of strict liability or the threat of fine that imposes high standard (speeding)
o Most offences concern businesses, too and there are many of such regulations
o They are not easy police and businesses add the risk of being prosecuted as one of the cost – dip in profit if you are caught but otherwise make money while you can.
o It is unfair to make a person (including a legal person) liable when they have no control over the state of affairs that is prohibited
o s.9(1)(a): Entering part of a building with intention to steel – Walkington (1979)
Strict liability does recognise responsibility in a different way; if a person decides to set up a business, or engage in some potential dangerous activity (e.g. driving), then that person has special duties to put him or herself into a position where that potentiality is constantly monitored and minimised: do not buy your meat from a disreputable wholesaler; if in doubt, drive more carefully than less carefully; etc, etc.
PROVOCATION AND DIMINISHED RESPONSIBILITY
Ø This requires an understanding of what went on in Smith (Morgan) [2001) AC 146, then an account of provocation and diminished responsibility
Ø Difficulty arises as to the meaning of relevant circumstances that are taken into account in assessing whether provocation is made out, since it seems in practice very artificial to divide human characteristics up.
Ø In smith it seems that its is, in the end, a question of fact for the jury and that only in exceptional circumstances should the jury be informed by the judge
Ø Characteristics should have some degree of permanency – Lord Slynn
Ø Jelousy, obsession etc should be ignored Lord Hoffmann
Ø The majority of Lord thought that it was wrong fro the jury to have been told by the trial judge that Smith’s depression was neither her nor there; rather it was up to the jury to decide the relevancy of the depression. But continuing depression seems to be an abnormality of the mind, and it substantially impaired mental responsibility, then it would seem provocation has been extended into the defence of diminished responsibility.
Ø Weller (2005) 1 Cr App R 1; Privy Council case Paria (2003( IKPC 36
Ø Lord Hoffman’s invocation in Smith of the ‘monsters’ of ‘the reasonable obsessive’ and ‘the reasonable depressive alcoholic’.
APPROPRIATION
Ø Original concept of appropriation – original criminal Law Revision Committee behind the creation of the Theft Act 1968. An advance of idea behind ‘taking’ which was a requirement under the old Larceny Act
Ø The general principle behind the creation of the new offence of theft was its appeal to the ordinary meaning of language as understood by ordinary, literate people,
Ø The early manifestations of the early principles were discussed in Lawrence v Metropolitan Commissioner (1972) AC 626 and Morris (1983) QB. These cases were the background to Gomez (1993) AC 442, in which Lawrence was confirmed.
Ø The resultant very wide nature of appropriation: It meant that most ordinary civil transaction (e.g. at a shop till) were example of appropriations.
Ø The wide effect of Gomez was thought to be wrong by Smith; on the other hand Glazebook (1991) Cambridge L.J. 389 claims ‘…there was nothing in the definition of stealing in s.1 of the 1968 Act that required the courts to make the trivial and morally irrelevant distinction between someone who dishonestly appropriated another’s property by stealth, and one who did so by deceit. The crook is as dishonest in the one case as the other and the loss to his victim, is exactly the same.
Ø Decisions of the court of appeal following Gomez have indicated some concern with the decision: Gallasso (1993) Crim LR 459 which smith claims should be regarded as per incuriam.
Ø Mazo (1997) 2 Cr App R 518 and Kendrick (1997) 2 Cr App R 524 appear to have affirmed Gomez
Ø Hinks (2000) 4 All ER 833 HL; held that it was immaterial to the question of whether there was an appropriation that a valid gift had been made, casting douts on Mazo.
Ø The upshot appears to be almost that if there is dishonesty then there is an appropriation, although that suggest that appropriation is many cases is a redundant idea altogether.
Ø Did the development of the meaning of appropriation made any sense.
Ø To have a view on the question whether, when people are accused of having committed theft, their liability includes the meaningless ingredient (appropriation)
Ø Law should be assessed as a set of arguments having significant social repercussions. If a judge is persuaded by the wrong argument his decision to convict will bring about a grave injustice.
Ø ‘deeming’ and therefore technical requirement of s.6
Ø Conspiracy and conditional intent to commit theft;
Ø By just going into the department with the ‘secret and unlawful’ intent, they have possibly committed burglary (entering as a trespasser with intent to steal)
Ø S.6. A could be said to have intention to permanently deprive the shop of the shoes, throwing the shoes into the rubbish bin confirms that.
Ø Ripping the dress is criminal damage
Ø Swapping label is appropriation (unless done for a joke, Lord Roskill Obiter in Moris
Ø If they have intention to remove the jumper from the shop the theft is complete before they change their mind even though they put the garment back
Ø When B put it in her pocket the requisite element is complete
Ø Good candidates discussed the wide open nature of appropriation and made some comment on the idea of appropriation as price-swapping; they also pointed out how artificial the deeming provision of s.6 is.
WOUND AND GRIEVOUS BODILY HARM
BATTERY, PSYCHIC ASSAULT
Ø Problem of causation; amplifier shorting looks like an intervening negligent act and not foreseeable. If there is causation then A has committed a s.47 offence (Miller (1954) 2 QB 282)
Ø Bad bruise looks like s.47, but it would not be grievous bodily harm, nor wound, so it would neither be s.20 or s.18
Ø G caused E to break his leg, it is irrelevant through the ‘thin skull’ principle that the leg is weak (Blaue (1975) 1 WLR 1411
Ø Inflicted now means caused: Ireland and Burstow (1997) QB 114 – s.20 offence, GBH s.18
Ø Discussion on Dear, Corbett (1996) Crim LR 594
Ø Battery (Indirect) [Martin (1881) 8 QBD 54]
Ø S.47; Battery occasioning injury
Ø Sufficiency of immediacy (Smith v Woking Police (1983) Crim LR 323
Ø Psychic and physical assaults are different offences s.18 - serious injury (maliciously is swallowed up by the ulterior intent – if you have intention to GBH, then you are malicious)
Ø Does H intend or reckless toward ‘some harm’ – Mowatt (1968) 1 QB 421
Comments about wound, occasioning and causing, inflicting, technical meaning of malicious, the Mowatt point and double ulterior intent point in s.18
ASSAULT, GRIEVOUS BODILY HARM
Ø Actus reus or Rape, Assault, s.47, 20 and 18.
Ø Common assault – You can consent to battery and that makes it lawful; so s.47 is ruled out
Ø You cannot consent to more than Actual bodily harm (Brown) unless there is some ‘public justification’ such as reasonable necessary surgery, boxing,
Ø D foresees the likelihood of harm (Mowatt) and liable under s.20
Ø If he intends GBH (seems unlikely) then s.18
Ø Even if he is drunk, he cannot raise defence of drunkenness since s.20 is a basic intent.
Ø s.18 because it is a crime of specific intent.
Ø Do not go into the examination not knowing each element of the actus reus of each offence.
Ø It is not criminal offence to be unfaithful or have mistress
Ø Putting fear of immediate battery is a common law assault – Read v Coker: conditional intention was still held to be an intention. He shouted this out and the actus reus is complete
Ø Does Harry intends of foresee Lemon to be afraid? If so Harry has committed assault s.47 liability
Ø Wound and infliction of grievous bodily harm with foresight of some bodily harm (Mowatt) s.20
Harry probably committed psychic assault, battery s.47 (in two ways, reflecting the two different assault). S.18, harm
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