TIT - BITS

TIT-BITS

s.3 and s.3 of the Fraud Act 2006 overlap since D could be charged for both offence.

A person acts recklessly within the meaning of s.1 of the Criminal Damage Act 1971 with respect to:

(i) a circumstance which he is aware of a risk that exist of will exist
(ii) a result when he is aware of the risk that it will occur

and it is in this circumstances known to him unreasonable to take that risk.

Proposed reform

A person acts recklessly with respect to:

(iii) a circumstance, which he is aware of a risk that exist of will exist
(iv) a result when he is aware of the risk that it will occur

and it is in unreasonable, having regard to the circumstances known to him, to take that risk.

s.8 and Morgan do establish that a failure to foresee consequences, whether reasonable or (Morgan) which negative mens rea of the offence require acquittal where the offence does not requires mens rea .

Ghosh Test: (i) Would ordinary reasonable person consider D action to be dishonest? (ii) Did D realised that her action would be so regarded?

Theft: s.1 of Theft Act 1958; Gomez; Morris)

Duress: Graham (reasonable belief in relation to Duress); any avenue of excape? Heath and Hassan. The jury must judge D’s action by the standard of reasonable firmness. Self defence would not apply for theft

S.20 Malicious wounding; Morriary v Brooks (1834) a break in the continuity of the skin. Mowatt (1967) D must be aware that his conduct carried a risk of harm albeit not serious; Savage and Parmenter (1991); Mander (1985). S.20 is alternative to s.18 (requires specific intent); inflicting/causing is wide.

S.47 Assault: Fagan v MPC (1996)

Battery: Rolfe (1936) infliction of unlawful violence. ABH – any injury likely interfere with heath and comfort. Miller (1934); Roberts (1971); no foresight is required of
Appropriation: Gomez and Hinks: assuming the right of the owner is theft
Murder: Moloney (Definition) Saunder (Intention) Woolin (1998)

Constructive Manslaughter (Church): Dangerous and unlawful act which causes death of another (Goodfellow (1986); Newbury (1977); The question of whether the unlawful act is dangerous in an objective one (Church [1976]); Willoughby (2004) D may be guilty of offence via more than 1 route.

Gross negligent Manslaughter (Adamako): Duty of care, negligent of that duty and negligence cause death. Contractual duty (Pittwood), voluntary assumption (Stone and Debbinson)

Reckless Manslaughter (Lidar (2000): D foresaw a risk of death or serious harm not that either consequence was virtually certain to result (Lidar); Cooper (2004); Dudley (1989)

Provocation: Duffy, Ahluwalia, Thorton (sudden and temporary loss of control); Doughty – provocation need not come from deceased. S.3 of Homicide Act 1957

Diminished responsibility: s.(2) of Homicide Act 1957. Byrne (1960); Durbar (1958) burden on defence on balance of probabilities; defence supported by psychiatric evidence - Dix (1981); Dietschmann (1993) intoxication does not erode defence.

Intoxication: is denial of mens rea. Beard (mistake and evidence of intoxication). Very difficult defence. Majewski (1981) voluntary intoxication

Sexual Assault : ss.1-4; Sexual offence Act ss. 74-75 (Presumptions). S.78 consent. Dica, Gonzani (sex and infection of HIV); Tabassum (fraud as to consent of the act) Copper and Schaub (withdrawn consent).

Criminal Damage: s.1(1) of criminal Damage Act 1971. Lloyd, Drake (what constitute damage); s.1(2) aggravated criminal damage (danger to life)

R v G: If D foresaw a risk that a life would be endangered as a result of the damage, the she is reckless. Caldwell (inadvertent) recklessness overruled and Cunningham (advertent) recklessness is the law. The doctrine of transferred malice cannot apply to criminal damage. S.5(2) defence. Jaggard and Dickson (1980); honest belief will suffice.

Causation: Malcherek and steel (1981): Bonafide decision of medial personnel will not break the chain of causation.

Defence of Consent: Attorney General Reference (No. 6 of 1980) & Brown (1983) consent to injury subject to public policy exception; Wilson

GBH s.18. Serious injury (Smith (1961); Sounder (1985); intention and knowledge that GBH is a virtual certain consequences (Bryson).

S.24 Malicious administration : Gillard (1998) spraying; Marcus (1981) noxious definition; Morison (1989) malicious bear subjective reasoning.

S.10 creates a specific intent and intoxication would be relevant evidence of lack of mens reas

Duty of care: duty, breach, death – Lewis v CPS (2003); Hood (2004): Duty of care by virtue of marriage; Rufell (2003)

Self-Defence: D’s belief in need for force subjectively assessed – Gladstone Williams; Morgan and Kimbert Martin (2001)

Assault: (Ireland and Burstow [1998: Chan-fook (1994) psychological assault

Battery: s.5(4) of the Theft Act & Chase-Manhatttan Bank & Shandratch-Cigari (1988)

Burglary: s.9(1); Walkington (1979)

Causation: Dear (1976); Dhaliwal (2006), where it was stated per curian that unlawful violence on an individual with a fragile and vulnerable personality which proved to be a material cause of her death, even where it was death by suicide, was arguable capable of amounting to death.

Fraud Act 2006; s.2 Fraud by false presentation; s.3 failure to disclose information; s.4 abuse of position. Mens rea dishonesty and an intention to gain in terms of property of cause loss to another or expose them to the risk of loss in terms of money or property. Dishonesty, there is nee for the prosecution to prove that false presentation played on the mind of the victim. S.11 obtaining services by deception. False presentation can be made by omission (Dip Kaur (1981) – pre-Fraud Act 2006 case. We are not sure how the case law would develop. Penalty: Custom (credit card) 6 years; Fraud Trick 5 years; E-Card – 3 years. Fraud (Trials Without Jury Bill) [2007] to implement s.43 of Criminal Justice Act

Inchoate offences

Incitement: common law offences dates back to Higgins (1801) Goldman (2001). Actus reus: D incites another to do an act which if done will involve the commission of an offence. Some element of encouragement or persuasion (Race relation v Applin (1973);
Mens rea: D intents or belief that the person incited if he acts as incited will do so with the mens rea for the offence. May be directed to a number of person (newspaper). You cannot incite somebody is who incapable of commit an offence. Impossibility will provide a defence (Clayton 2005). Inciting boy 14

Conspiracy: Actus reus: An agreement between two or more person to commit an offence (husband/wife/victim/child exception but couple + 3rd party (Christny (1991); you cannot conspire to aid and abet (Hollinshead (1993). One of the party must be a principal. S.5 of Criminal Attempts Act rules out impossible as a defence overruling Nock (1978).
Mens rea: D must know the existence of the other party(Anderson) and intention for active/passive participation (Sirakuta). Impossibility is not a defence for conspiracy.

Attempt: Actus reus: Doing more than mere preparatory to the commission of an offence. S.4(3) a question for the jury whether an occurrence is an attempt or not. Mens rea: intention to commit the crime. Only intention to kill will suffice for attempted murder. O’ Toole. For circumstantial offence is recklessness will suffice for the full offence, it would for attempt. Question: If D has achieved what he wanted, he would have been guilty of the full offence. If the answer is yes, then he is guilty of attempt. An impossible attempt is an attempt.

Secondary liability; s.8 of the Accessor and Abettors Act 1861 – aid (prior to) , abet , counsel (inciting and encouraging – Calhem [1983]) any encouragement will suffice (Gianettor [1997] and procure (produce by endeavour, take step to ensure a thing happens – AG Ref (No. 1 of 1975). Actus reus: an act (or possibly) an omission which aids, abets, counsel or procure the commission of an offence. An adult may be guilty as secondary party for rape where the Principal is incapable (Cagan and Leak 1975). Mens rea: the act of assistance was done intentionally (Clarkson). Mere presence or non-interference is not enough. Question: D contemplate or foresaw the commission of the offence. D is liable unless the risk was remote and the jury of the view that he dismissed it altogether and any difference in what was planned, contemplated and done is a question for the jury. Independent action of DI could exonerate D2 from liability. Principal (diminished responsibility)/Secondary party are liable to the extent of their mens rea. (Hower [1987]. Withdrawal could afford escape of liability – Grundy [1977]. There is need to communicate withdrawal but it is not necessary to take steps to prevent crime.. Delays in the commission of the crime does not negate liability.

O’Gardy
O’Conor
Hatton
Hinks (2000) – D who dated an elderly man and collect substantial money over a period of time as gift Gift is theft

Diminished responsibility: Dietschmann (2006) HL said smith direction in ; Handy (2006); Robson (2006). Question: Atkinson (1985) was misdirection; Egan (1992) CA applied ‘Smith test’. In spite of intoxication diminished responsibility played a part.

R v Rahman and Others (2007): Court ruled that D2 should not escape liability where DI killed V when they are all involved in a joint enterprise with intention to cause serious bodily harm and developed the following six questions for the jury (1) Are U sure that one of the attackers would or might kill V with intent to kill him? (2) (i) Did D realised that one of the attackers might kill V with intent to cause GBH (ii); D intended that serious bodily harm would cause V; (iii) realised that one of the attackers might cause SBH intending to cause such harm (3) What was P’s act which caused the death of V (e.g. stabbing, shooting, killing, kicking, beating) (4) Did D realised that one of the attackers might do this? (5) What act or acts are you sure D realised P might do to cause V really serious harm (6) Are u sure that this act (which D realised one of the attacker might do) is or are not fundamentally different nature to P’s act which caused the death of V? If yes guilty of murder, if no, not guilty.

Manslaughter and Administration of Drug Kennedy (2007): Drugs administration case. D prepared syringe of heroin and gave to V who injected himself and died later. The HL held that that Kennedy (1) who prepares a syringe and gave the deceased was liable for causing and self-injection did not break causation.; Dias (2001) where it was held supplier could be liable for manslaughter (Rogers [2003] where it was held that holding tourniquet amounted to active participation and Finlay (2003) where it was held that D who prepares a syringe and gave the deceased was liable for causing and self-injection did not break causation, were wrongly decided and that a free deliberate and informed act of an individual initiate a fresh chain of causal responsibility and underline the distinction between principal and accessorial liability.

Blackmail: Actus reus: unwarranted demand with menace (a treat of any action which might influence ordinary person or normal stability to accede unwillingly to the demand Clear (1968); detrimental or unpleasant threat (Thorne v Motor Trade Association (1937). Defence: s.21(1) (a &b) of theft act. Proper belief – Faraj (2007): Detained whom he belief was about to burgle his property using kitchen knife.

Automatism: Woolmington (1935) – prove D guilt beyond reasonable doubt and the requirement for voluntary act. Ag for NI (1961) – Automatism simplifier; Sane authomatism (Hypoglyceamia, concussion by blow to the head; Quick R v Sullivan (total loss of control. Limitation: where D excised some control (AG No. 2 of 1992); Issit (1978); Insanity; Prior fault (Non-self induced [blow to the head, hypoglycaemia) & self-induced (alcohol or dangerous drug and will only apply for basic intent crime, recklessness is enought) Reform – any movement which is (a) a reflect, spam or convulsion or occurs while he is in a condition ….. depriving him of effective control of his act. Successful plead lead to acquittal.

Insanity: – Automatism from a disease of the mind, internal factor likely to re-occur. Hyperglaceania; sleepworking and epilepsy. D guilt beyond reasonable doubt and the requirement for voluntary act. Ag for NI (1961) – Automatism simplifier; R v Sullivan; R v Bratty (total loss of control. Limitation: where D excised some control (AG No. 2 of 1992); Issit (1978); Reform – any movement which is (a) a reflect, spam or convulsion or occurs while he is in a condition ….. depriving him of effective control of his act. Successful plead lead to not guilty by reason of insanity (special verdict) and verdict may include hospital order, indefinite stay in psychiatric hospital; M’Naghten Rules (1843) – every man is sane and responsible for his action and need to rebut that presumption to escape liability for his action.

Recent developments

Crown Prosecution Service v P (2007) - Doli Incapax: It was ruled that the effect to s.34 was to abolish the presumption that children under 14 are incapable of forming mens rea for crime
Corporate Manslaughter and Corporate Homicide Act (2007): The Act lifts the veil and permit jury to review the corporate structure inside an organisation and review its internal practice. Liability on conviction: unlimited fine; remedial order and publicity order
R v Rogers: s.29-32 of the Crime Disorder Act 1978; bloody foreigner no liability; liability or bloody for bloody Spaniard
R v. Farrays –
R v Courtis: Lingerie crazy. For a charge of murder manslaughter should be left for the jury
R v Heard (2007) – voluntary intoxication could not be relied upon to negate liability for intentional touching in s.3 as it requires a basic intent; Majewsky
R v Bree (2007): Rape s.47 drunken consent where V is drunk but capable of consent is valid consent
R v Faraj: Honest belief in the use of force to defend property is a question for the jury. Held V with kitchen knife
R v Jones (2007) – sexual graffiti s.1(1) of criminal attempt act. Impossible is no defence for the attempt.
R v Rahman and others (2007): 6 routes to verdict for secondary liability
R v Rafferty (2007) secondary party(ies) would not be guilty of murder if the act of the principal is fundamental different from the act foreseen or intended
R v Counts (2006) HL on a charger of murder, the alternative charge of manslaughter should be left to the jury.
R v Dhaliwal [2006] held that the ambit of ‘bodily harm’ was restricted to recognised psychiatric illness.
R v Hendy [2006] EWCA Crim 819 Dietschmann had not been propounding any new principle of law on diminished responsibility and alcoholism .
DPP v Smith [2006] EWHC 94 (Admin): cutting off of a substantial part of a person’s hair, without that person’s consent, in the course of an assault was capable of amounting to the offence contrary to s.47 even where it did not leave any mark or break the skin.
R v Altham [2006] EWCA Crim 7: Necessity is no defence for Cannabis use .
DPP v Mullally [2006] ALL ER (D) 49 (Nov) – Driving while drunk. The presence of Police is not an excuse to commit a crime.
R v Abu Hamza [2006] EWCA Crim 2918 - The Court of Appeal held that it was an offence contrary to s.4 of the Offences Against the Person Act 1861 for a person to incite a foreign national in England or Wales to commit murder abroad.
R v Saik [2006] UKHL 18 - currency exchange office HLords. Conspiracy to commit an offence is a different harm from the actual commission of the substantive offence in that conspiracy imposes criminal liability on the basis of a person’s intention. For the purposes of conspiracy, knowledge required proof of a true belief, even where a lesser form of mens rea (or no mens rea) was required for the substantive offence.
Advice

Take special attention of criticised cases; plan your answer well; if you find yourself agreeing 100% with quotation check that you have not missed something, but if you are sure as if the quotation cannot be faulted threat is as if the question read: ‘…explain to me why, in the light of the authorities, this proposition can be said to be accurate statement of law, and if you want a really good mark, tell me what arguments have been or might be advanced against the proposition and what are the weaknesses of those arguments.

Compare and contrast:
Assume that a must be given equal weight as B. Identify the point of contrast before you start writing your answer and structure your answer around the.

Know the recent developments and their impact on existing authority; for proposal for reform thinking about the merit and demerits of any proposal is an essential part of preparing to tackle the essay on reform.
Anticipation: What aspects are uncertain or controversial; conflicting line of authority
Problem Question: Assume that every little detail of the information given will help you to identify the points the examine want you to discuss; if dates are given or days specified, chronological order is important. If similar transactions are entered into in relation to different object or by different means, the likelihood is that different issues do – or might – arise. If there are two or more people who can be sued or might be sued, you can be certain that the position of each of them is or might be different

In criminal law, consider every crime of which at least a significant part of the actus reus is given. List your points and note the cases and sections you intend to cite. Decide on your conclusion. Exemption clauses in contracts seem to attract this sort pf preparation. Be careful to exclude discussion on points which are not an issue in the particular problem. If one of the alternatives leaves a lot to write about, the examiner must have been thinking of the other. The purpose is not to catch you but to give you an opportunity to show what you know.

In uncertain situation – there is no right or wrong, the quality of your reasoning as to why the law is likely to develop in a particular direct is just as important as your account of what has been decided in the past.

Misspelling especially phonetic spelling shows the examiner that you have not actually read the cases yourself but rely on what you heard of thing you heard. Indicate the precedent value of cases wherever possible. Courts, majority, unanimous, revising previous decisions.

Statutes Cite important section and subsections. Pin-point critical words and phrases

Style and presentation – legible handwriting in clear and concise manner, lawyer like detatchment. Never advise that something is uncertain. Use the opening paragraph to let the examine know what you have seen the likely issues in the question.

Opening: The issues for consider are: Has x committed (burglary, murder, rape, theft, blackmail, burglary,) under s.9(1)(a) of the Theft Act 1968 seeing that he had a conditional intent to …. (2) was G reckless when he dropped the vase? Could s.9(1)(b) apply here.

Middle Devote one or more paragraph to each of the issues. Keep the paragraph short

The ending: Use the last paragraph to remind the examiner of your conclusion. Avoid errors, meaningless use of clichés. Do not use abbreviation of private shorthand.

SEXUAL OFFENCES ACT 2003

The sexual offence Act 2003 was the attempt to reform the existence law and common law provisions as it relates to sexual offences. The act provide life imprisonment as the maximum penalty for the offence.

RAPE

Rape is the penetration of mouth, anal and varginal and none of which is more serious R v Ismail (2005) R v R (1992) House of Lords ruled that rape within marriage could be a criminal offence. Penetration is a continuing act and the consent must be valid throughout the process s.79(2) andn Kaitamaki (1985)

MENS REA

Intentional penetration and lack of reasonable belief in consent. Morgan (1977) belief is to be both honestly beld and reasonable.

ASSAULT BY PENETRATION

A penetration of anus, vagina, mouth with penis, mouth, tongue, hand or any other thing.

Mens Rea: Intentional penetration and lack of reasonable belief in consent. Morgan (1977) belief is to be both honestly beld and reasonable.


SEXUAL ASSAULT - Section 3 of Sexual Offences Act 2003

This new offence replaces the old indecent assault offence.

Actus reus: Touching with any part of the body; touching with anything else; touching through anything and the touching must be sexual

Mens rea: Text of sexual activitity: If a reasonable person, for whatever purpose and circumstance it is because if its nature sexual.

Because of its nature, it may be sexual and because of the circumstances or the purpose of any person in relation to be sexual

CONSENT

In approaching a problem question use s.74, s.75 and s.76 reverse order. Obtaining consent by deceit renders the offence conclusive valid. S.75 talk about the evidential presumptions.


EXAM ADVISE

Mens rea: Intention to have sex
Sex without consent is rape

JAKE and Ana

Rape contratry to section 1 of SOA 2003

RAPE

Rape is the penetration of mouth, anal and varginal and none of which is more serious R v Ismail (2005) R v R (1992) House of Lords ruled that rape within marriage could be a criminal offence. Penetration is a continuing act and the consent must be valid throughout the process s.79(2) andn Kaitamaki (1985)

MENS REA

Intentional penetration and lack of reasonable belief in consent. Morgan (1977) belief is to be both honestly beld and reasonable.

DEFENCE:

The belief that No means yes. Ana is sleepy but not asleep. Chose to consent freely is Ana capable of consenting freely in her sleepy state. If the jury is convinced that.

If consent is not present, then we consider Jake's state of ming. He intentionally had sexual intercourse. Does he have reasonable belief. He may honestly belief because of what he has been thought by the cult that no means yes. Platonic may mean consent using the same analogy. However, under s.1 Jakes belief must be reasonable to excape liability. The jury in deciding this have to consider all the circumstance.

Did the victim agree in her sleepy state. S.1(2) Whether D take any reasonable steps into account in assessing the reasonableness of D's belief in consent, the jury may also consider circumstances, age, mental capacity, previous relation. Cite the test:

JAKE AND FLORA

Flora has been decewived and s.76 may apply and the case may be similar to Tabassum. Her belief in Jake's qualification is not relevant (Richardson. Jake intentionally deceived her, but she does not have to be induced to consent by the deceit. The woed induced is used in s.76 not not in s.76(2)(a). There may therefore be evidential presumption against consent. It is then for Jake to argue that despite the deceit, Flora freely consent. If consent is not proved, thenm Jake

JAKE AND DEBIE

There was no sexual intercourse. This cannot be sexual assault. It must therefore be s.4 offence, causing another to engage in Sexual Activity. Debbie is not deceived many not apply. Has debbie freely consented with full capacity. She appears relunctant but feel obliged to consent because of what her father told her. Is debbie capable of consenting becayse of her age. If consent is not .

Reasonable belief then mens rea may not be found. This create a potential objecive test which is a fundamental change as mens rea for rape under the common law is D's belief would have been honestly held (subjective) but not reasonable (objective. Assault by penetration is a new offence and sexual assault replaced indecent assault. Causing another to engage in sexual activity is a new offence. Clarify consent.

The origins of 2003 Act lies in the recommendation of a review carried out by the home office Setting the Boundaries (2000) White House received Royal assent on November 20, 2003. The government considered the existing law on sexual offences as archaic, incoherent and discriminatory and failure to reflect current realities.

The offence of rape was extended to include non-consentual anal intercourse with woman or man. S.1 further extend the definition of vagina to include vulva and references to part of the body throughout the Act including those surgically altered and applied to transensual. It includes oral penetration by amn of woman. Forced oral sex is penetration.

Intentional penetration
Absence of consent
Absence of reasonable belief in consent

The concept or recklessness has disappeared entirely from the offence of rape. previous law require either d D knew of was reckless to the fact. Sexual assualt is a triable either way offence and sentencing is 10 years. The court test and its application has been critised ad vague and unclear. It has been argued that it will be difficult to apply the test in s.78(c) considering the issues that will be brought into play. While s.78 might require some fine-tuning, it was non-inclusion in Canada and Australia that has led to to costly proliferation of ases.

Olugboga approach to consent was to leave the jury to consider difference between consent and mere submission.

In view of the concern about compatibility since the reverse onus provision of innocence in Article 6 of Human Right Convention interpreted by the House of Lords was abandoned for evidential burden. Those who were raped will have to take their chances without the benefit of evidential presumption.

RECENT DEVELOPMENTS

R v Heard (2007) ECWA Crime 125 - Voluntary Intoxication and Section 3 of SOA 2003 (Sexual Assault). The court held the touching in s.3 did not require specific of purposive intent but basic intent and therefore in applying Majewski voluntary intoxication could not be relied upon to negate that intention.

R v Bee (2007) - D and V had sex while V was intoxicated. D had the capacity to consent, but her ability to resist had been hampered by alcohol. Rape: Consent. Voluntary intoxication by the complaint. The Court of Appeal held that:

If through drink of any other reason the complainant had temporarilly lost her ability to consent and sexual intercourse took place, subject to the defendant state of mind, she was not consenting. However, where the defendant had voluntary consumed substantial amount of alcohol but had nevertheless remain capable of choosing whether to have intercourse or not (and in drink had agreed to do so) this would not constitute rape. The court was of the view that the Jury had not been given sufficient direction in the issue of voluntary intoxication and consent to allow their verdict to be regarded as safe.