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AQA A-Level Criminal Law

Answers to self-test questions and tasks

Chapter 1 The Nature of Law

Task 1I hope you read the text above this task, if so it should have been easy.

Whether the decision achieved justice is a matter of opinion. Some would say it was not just

because they all consented. Others might argue that violence is wrong even if with consent, so the

decision was just. As regards a legal opinion of justice, under the natural law view of justice the

decision was correct as the behaviour was immoral. A positivist would agree with the decision being

based on the rule not to cause intentional serious harm.

The interests which were balanced were those of the people involved (to do what they want in

private without the law interfering) with society itself (to be protected from acts of violence

wherever they occur).

Fault played a role in that the serious harm that was caused was intentional. This is a high level of

fault so the D’s were punished.

Morality played a role because one judge said that society itself was harmed by such behaviour,

even if it happened in private. Therefore the law enforced morality by making the act illegal.

Task 2

Lord Bingham meant that no-one should be above the law, echoing Dr Fuller’s comments centuriesearlier. The second part of this is a matter of opinion. Most would probably think that it should bepart of the rule of because it emphasises the fact that the rule of law should include equality. Youcould of course point out that it does not always apply in practice, as not everyone has equal accessto the funds needed to obtain the law’s protection in court.

Self-test questions

1. Two sources of law are statute law and common law (also European law and Human Rightslaw)

2. Three differences between civil and criminal law are any of those given in the two lists underthe headings ‘criminal’ and ‘civil’ law

3. The core principle of the rule of law is that no-one is above the law, including those whomake it

4. The term for guilty conduct is actus reus5. The term for a guilty mind is mens rea

Chapter 2 Actus Reus

Task 3

It could be argued in Miller that the dropping of the cigarette was a continuing act so that when hedid nothing about the fire he had both actus reus and mens rea. The continuing act theory is actuallythe principle that the CA used, but the HL preferred the principle that if you create a dangeroussituation you have a duty to do something about it, so can be liable for an omission.

A2 Law for AQA – answer key for self-test questions 1 | Page

© Sally Russell 2013

Tasks 4 & 5

There is no guide for task 4, and the answer for task 5 is in the book.

Task 6

Your diagram should include a case such as Leicester v Pearson or Winzar for voluntary act. Any ofthe omissions cases such as Pittwood; White for the ‘but for’ test and Cheshire and Roberts for legalcausation

Self-test questions

1 The ‘3 Cs’ which may be included in the actus reus of a crime are

conduct

circumstances

consequences

2 The court found liability on the basis that it was a ‘continuing act’.

3 Two examples of when an omission can result in criminal liability are

when there is a contractual duty

when D created a dangerous situation

4 The thin skull rule is that D takes the victim as he or she finds them.

5 The quote at the beginning of the Chapter came from Pittwood.

Chapter 3 Mens Rea

Task 7

There is no guide for Task 7

Self-test questions

1 The quote at the beginning of this Chapter came from Woollin.

2 The two types of intent are direct and indirect.

3 The Nedrick test for oblique intent is

was death or serious bodily harm a virtual certainty?

did the defendant appreciate that such was the case?

4 Recklessness is now a subjective test as decided in Gemmell & Richards.

5 The principle in Latimer is that malice (mens rea) can be transferred.

Chapter 4 Strict liability

Task 8

You may have chosen other examples but here is one for each side.

It is unfair to convict D of a criminal offence without proving mens rea

It is unfair as there is no fault element, which should be a requirement of any offence which canresult in a criminal conviction and maybe a prison sentence. That is why the HL in Sweet v Parsleyrefused to accept that the offence was one of strict liability and held this could only be the case ifthe Act specifically stated that it was.

It makes people more careful



It is fair to convict without proof of fault in offences where there is a risk to public health because ifpeople know they may be convicted they will be extra careful, not only e.g., in instructing their staffproperly but in checking that their instructions are carried out. An example where this seems fair isMeah v Roberts. However the case of Shah seems less fair as there was not a risk to health.

The other part of the task was aimed at getting you to think about the justice of imposing strictliability. There is no guide as it is purely a matter of opinion.

Task 9

Strict liability – where there is no need to prove mens rea

Absolute liability – where there is no need to prove actus reus or mens rea

Statutory nature – coming from an Act of Parliament

Social utility – something that benefits society

Public policy – rules that protect the public as a whole

Regulatory offences – ones that regulate about how people should behave regarding issues likepollution or health and safety and which are not truly criminal in nature

Self-test questions

1 Three areas of social concern where strict liability applies are pollution, the sale of food andpublic health.

2 Sweet v Parsley established that there is a presumption of mens rea in most criminaloffences where the Act is silent on the matter.

3 The guidelines set out for imposing strict liability where the Act is silent were set out inGammon (Hong Kong) Ltd v AG of HK 1985.

4 For reasons for and against imposing strict liability, choose 3 from the list under ‘Argumentsfor’ and 3 from the list under ‘Arguments against’.

Chapter 5 Assault and Battery

Task 10

Applying the rules on intent and recklessness to battery, the prosecution must prove the following

for direct intent, that it was D’s aim or purpose to apply unlawful force.

for indirect intent, that the application of force was a virtual certainty and D appreciatedthis.

for recklessness, that D recognises a risk that unlawful force will be applied and goesahead and takes that risk.

Self-test questions

1 The current definition of assault is to cause someone to apprehend immediate and unlawfulpersonal violence.

2 Words alone can constitute an assault as shown in Wilson.

3 The mens rea for assault is intention or recklessness (to cause someone to apprehendimmediate and unlawful personal violence).

4 A battery does not have to be hostile as seen in Thomas.

5 Consent and self-defence may make a battery lawful.



Chapter 6 ABH

Task 11

In Roberts, the action by the victim did not break the chain of causation because it was foreseeable.The type of action which might do so is ‘something daft’, as was decided by the CA in Williams &Davis.

Self-test questions

1 The quote at the beginning of this Chapter came from Ireland.

2 The three parts to the actus reus are

An assault (conduct)

Occasioning (causation)

Actual bodily harm (consequence)

3 Mens rea is needed for the assault, i.e. the conduct.

4 According to Roberts, something unforeseeable or daft could break the chain of causation.

5 The HL finally confirmed that the principle in Roberts was correct in Savage and Parmenter.

Chapter 7 GBH

Task 12

The most appropriate offence is wounding under s 20 OAPA.

Wounding requires both layers of the skin to be broken – Eisenhower. This is the case as Stevesuffered a ‘deep cut’.

Causation needs to be considered. It can be said that ‘but for’ Mick’s act in throwing the brick Stevewould not have fallen so would not have suffered harm, so factual causation is proved – White.Legal causation is based on having a ‘chain of causation’ between the act and the result. Mick’s actin throwing the brick may not have directly caused the harm, but Steve falling off his bike and therebeing a sharp stone on a country lane are both foreseeable so will not break the chain of causation –Roberts.

Recklessness as regards ‘some harm’ is enough. There is no need to intend or be reckless as toserious harm for s 20 – Mowatt. By throwing a brick at someone Mick can be said to have at leastbeen reckless as to causing some harm.

There is a possibility of s 18 if Mick intended serious harm (Parmenter). However, s 20 seems themost appropriate and will be easier to prove.

NB: It will not be s 47 ABH as it is a ‘deep cut’ needing ‘several stitches’ so there is no need to discussthis. For s 18 and s 20 there is no need for a prior assault or battery so leave these out too.

Self-test questions

1 ‘Wound’ has been interpreted as any puncture of the skin.

2 ‘Grievous bodily harm’ has been interpreted as serious harm.

3 The cases which support the answers to the above two questions are C v Eisenhower andSaunders.

4 The difference in the mens rea between s 20 and s 18 is that for s 20 it is intent or subjectiverecklessness as to some harm and for s 18, it is intent (only) as to serious harm.

5 The maximum sentences for s 20 and s 18 respectively are 5 years and life.



Summary and evaluation of the non-fatal offences

Task 13

The principles match the cases as follows

Principle Case

Silence may be enough for an assault Ireland 1996

Grievous means really serious harm Smith1961

Words may be enough for an assault Wilson 1955

A battery can be via another person Haystead 2000

Actual bodily harm is anything that causes personal discomfort Miller 1954

Mere emotions such as fear, distress or panic are not enough foractual bodily harm

Chan-Fook 1994

Wound means an open cut C v Eisenhower1984

Task 14 examination practiceAnswers for Year 1 exam practice

Multiple choice questions 1 to 10. 1 mark each

Question 1 B

Question 2 C

Question 3 D

Question 4 D

Question 5 A

Question 6 B

Question 7 C

Question 8 C

Question 9 D

Question 10 A

Question 11

A duty solicitor provides advice and can help with a bail application and someone’s first appearance

in the magistrates’ court. 1 mark

A person is entitled to a duty solicitor if in custody and this is free. 1 mark

Plus one mark for any of the following points

The solicitor may attend the police station to give advice or it may be done on the telephone. There

is no means or merits test.

A person charged may be entitled to a duty solicitor for representation too but this must be applied

for.



The duty solicitor can help with an application for a representation order for legal aid to cover any

further representation in court.

Question 12

Explanation: An omission can form part of the actus reus of a crime where there is a duty to act and

that duty is not carried out. 1 mark

Application: Rob is employed as a lifeguard so has a contractual duty to act – Pittwood. 1 mark

Application: Rob did not notice the child and it is part of his job to watch out for people at the pool

so he has not fulfilled his duty – Pittwood. 1 mark

Question 13

The offence under s 47 is assault occasioning actual bodily harm (ABH). The assault would covereither an assault or battery, here jumping out and shouting abuse while holding a knife is likely toput Mike in fear of immediate harm as required by the definition of assault in Ireland. Occasioningmeans causing, so the assault must cause the harm. Causation in fact means ‘but for’ Rafael’sactions would Mike have been harmed? The answer is no, so Rafael factually caused the harm,unlike the case of White. Causation in law is based on whether Rafael made a significantcontribution to the harm (as in Cheshire) and whether there was an unbroken link between his actsand the harm, called a chain of causation. If so, he will legally have caused it. Rafael has made asignificant contribution to the harm, so the question is whether Mike’s own actions broke this chain.The case is similar to Roberts where a girl jumped out of a moving car to escape an assault and thecourt held that a foreseeable act by the victim would not break the chain. Here it is foreseeable thatMike would run away from someone waving a knife, so the chain is not broken. The harm is cutsand bruises and this may be enough for actual bodily harm as it is more than trivial harm, asrequired by Chan-Fook. In DPP v Ross Smith even cutting someone’s hair sufficed so Rafael has theactus reus of ABH. The final issue is whether Rafael has mens rea. This is only needed for the assaultnot the harm as seen in Roberts and confirmed in Savage. Here Rafael clearly intended to scareMike as he ‘wanted to scare him’ and as the mens rea for ABH includes recklessness it would be easyto prove. The prosecution would only need to show that Rafael saw the risk of scaring Mike andcarried on with his actions. In conclusion, Rafael is liable for actual bodily harm under s 47. 6 marks

Mitigating and aggravating factors are things that the court will take into account when deciding onan appropriate sentence. Mitigating factors are ones that can reduce a sentence and aggravatingfactors are ones that may increase it. The Sentencing Council (SC) provides a set of guidelinesdetailing the factors to be taken into account when sentencing. These are comprehensive but the SCstill requires the court to take account of other circumstances as appropriate. Some factors relatespecifically to a particular offence and others are more general and apply to all cases. For the non-fatal offences against the person whether the offence was pre-meditated and whether a weaponwas used are particularly important aggravating factors. Both of these apply to Rafael as he waslying in wait and had a knife, so if Rafael is convicted these will affect his sentence in that it couldmake the judge consider a harsher sentence, maybe even a custodial one. As for generalaggravating factors these include previous convictions, whether the offence was committed while onbail and whether the offence was racially or religiously aggravated. There is no evidence concerningbail or previous convictions, but Rafael was shouting racial abuse so this factor may apply too. Thereseem to be no mitigating factors here, such as remorse, co-operation with the authorities or an earlyguilty plea. In fact, one mitigating factor related specifically to the non-fatal offences against theperson is lack of pre-meditation and here Rafael’s actions were premeditated, so overall thesentence may be quite harsh. 6 marks



Question 14

You are directed to s 20 so only discuss this offence. The actus reus of s 20 makes it an offence tounlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, with orwithout a weapon. In DPP v Smith, grievous was interpreted by the HL to mean ‘really serious’. InSaunders, the CA held that the word ‘really’ was unnecessary. Thus grievous bodily harm includesany serious harm. It would seem that bruises and swelling would not be enough for this offence ands 47, occasioning actual bodily harm, would be more appropriate. However, note should be taken ofBollom 2004. In that case a baby suffered bruising to several parts of her body and her mother’spartner was charged with GBH. Although the CA substituted the conviction for one of ABH, it wasmade clear that bruising could amount to GBH if the victim was a young child. This means the age ofthe victim may be relevant in deciding on which offence, so that s 20 may be the appropriate chargein Kylie’s case. As for mens rea, this is intent or subjective (Cunningham) recklessness. Theimportant point is that it is not intent or subjective recklessness to cause serious harm, only someharm. This was confirmed by the CA in Mowatt and later approved by the HL in Savage &Parmenter. Kylie must have recognised the risk of some harm when slapping Mal across the backsof her legs and she went ahead anyway, so was reckless. I would advise Kylie that she may be liableunder s 20 so it may be advisable to plead guilty as an early guilty plea will be a mitigating factor forher in court. She could plead guilty to s 47 and hope the prosecution will accept her plea and reducethe charge, which is quite possible. 6 marks

If Kylie is charged under s 20 the trial could be in either the magistrates’ or Crown Court as it is aneither-way offence. If the magistrate selects the Crown Court the trial will be heard by a jury,alternatively if the magistrate elects to hear the case Kylie can ask for the case to be heard in theCrown Court. If she has a jury hearing her case there are both advantages and disadvantages to this.The main advantage is that with twelve people the decision is less likely to be biased. This could be abonus for Kylie if there is a reason a magistrate may be biased against her, but this is not indicatedby the facts. Another advantage is that juries are seen as impartial and can make a decision basedon fact and good sense, even ignoring the judge’s advice if it seems to go against common sense(even if legally correct). Juries are representative of ordinary people and are less likely to be rulebound, so a jury decision may be seen to be fairer. However, as juries don’t have to followguidelines their decisions can be unpredictable, which is a disadvantage. There are several otherdisadvantages with having trial by jury.

Sometimes the law is hard to understand and clever lawyers or dominant fellow jurors can influence

jurors into making a particular decision. On the other hand, it can be said that juries are an antidote

to excessive legal technicalities because lawyers have to restrict their use of jargon when addressing

ordinary people. A related problem is that the Offences against the Person Act is very old and the

judge will have to explain a lot of the terms e.g., what the words ‘grievous’ and ‘malicious’ mean.

Media coverage can also influence jurors even though there are restrictions on what can be printed.

This could be relevant if e.g., Kylie has a background of violence which is reported in a local paper

and seen by the members of the jury. Local prejudice can be a problem in particularly emotive cases

and as the case involves a young child the jury may feel she should be punished. Overall in Kylie’s

case, particularly as she hit a young child, she may be better having the case heard by a magistrate

and hope that as the harm was not serious she won’t be found guilty under s 20, though of course

she may be guilty of actual bodily harm and this carries the same maximum sentence. 6 marks



Question 15

Frank

Here there is no need to discuss assault, battery or ABH. The words ‘several stitches’ show the harm

is serious and there is a wound. The two offences you should discuss are GBH and/or wounding

under s 20 and s 18. Wounding is most appropriate and a charge under either section is possible as

the actus reus is the same. Both require ‘unlawful and malicious wounding’. Explain harm must be

serious (Saunders), and several stitches indicates that it is, and a cut needing stitches will be a

wound as described in Eisenhower, because both layers of the skin must have been cut to need

stitches. Then discuss the rules on mens rea. This is what will decide the charge. As Frank ‘pulled

out a knife’, it would indicate that he had sufficient mens rea for s 18. This requires that he intended

serious harm. Even if serious harm was not his aim or purpose, which is how direct intent was

described in Mohan, the jury are likely to decide that he appreciated that serious harm was a virtual

certainty as a result of stabbing Sergei, so he will have indirect intent as established in Nedrick and

confirmed in Woollin. If the jury were not convinced that he intended serious harm, then the

alternative charge under s 20 would be easy to prove. Mowatt confirms that mens rea is only

needed for some harm, not serious harm. Frank would have at least foreseen the risk of some harm

resulting, and this is Cunningham recklessness, which is enough for s 20.

Don

Here the appropriate offences are battery and ABH. The word ‘slightly’ clearly shows that neither s

20 nor s 18 is relevant, so no marks will be gained for discussing these. Battery is the application of

unlawful force. Grabbing someone’s coat will be a battery, as touching a person’s clothes can

amount to the application of unlawful force, as stated in Thomas. If the battery causes harm the

appropriate charge will be ABH under s 47 which is an assault occasioning actual bodily harm. The

battery will be an assault as this word covers both assault and battery in the Act. A cut, even if

slight, is likely to be seen as ABH as it is more than trivial, as required by Chan-Fook. The main issue

regarding s 47 is one of causation. Factual causation is straightforward as but for Don’s actions

Kevin would not have been hurt. As for legal causation, both Roberts and Savage are relevant. In

Roberts, it was held that a foreseeable event would not break the chain of causation between an

assault (assault or battery) and any resulting injury. In Savage, the throwing of the beer was a

battery and the glass breaking was foreseeable, facts which are quite similar to these. It is

foreseeable that pulling someone off the dance floor could cause them to fall, and a table with

glasses on is common in a club so Don caused the harm. It was also confirmed in Savage that mens

rea was only needed for the battery, so the prosecution only have to prove that Don recognised a

risk of applying force (Cunningham recklessness). Here Don grabbed Kevin’s jacket so this presents

no problem as he clearly intended the battery (touching the jacket is enough as in Thomas), and the

battery caused the harm, (as in Savage) so a charge under s 47 should succeed. 20 marks

Question 16

Although stare decisis means stand by things decided, there are ways for judges in the senior courts

to avoid this rule if they do not want to follow earlier decisions. The law requires certainty,

especially in the criminal law, so precedent should normally be followed, but it may be that this

would cause unfairness so there should be some flexibility. Unfairness in the law as it stands is one



reason a judge may not want to follow an earlier decision. A higher court can overrule a lower one,

so the Supreme Court (SC) can overrule a decision of the Court of Appeal (CA), but not the other way

round. As for overruling its own decisions the SC can use the 1966 Practice Statement.

Overruling earlier cases by use of the Practice Statement applies only to the SC. Lord Denning

wanted it to extend to the CA, but he was criticised by many other judges for this view. As the SC

has the most senior and experienced judges it is right that it has the greatest powers. The Practice

Statement allowed the House of Lords (HL) to overrule its own earlier decisions if ‘it appears right to

do so’ and in Edwards v Environment Agency 2011, the SC confirmed that it had all the powers

previously invested in the HL. So the powers given under the 1966 Practice Statement have passed

to the SC. This gives a wide discretion and allows an old law to be changed. An example of the HL

overruling an earlier decision of its own is Gemmell & Richards where Caldwell was overruled and

all recklessness made subjective. This is one reason the higher courts might not want to follow a

precedent, in order to achieve justice. It is necessary to be flexible if justice is to be achieved, and

also if an error has been made the senior courts will want to avoid repeating it. Gemmell & Richards

is also an example of the normal rule of stare decisis, because the CA followed the earlier decision in

Caldwell as they did not have the power to overrule a decision of the HL.

However, very few cases reach the SC so it is important for the CA to have its own powers so a CA

judge can decide not to follow an earlier decision. The CA is usually bound to follow its own

decisions, as well as those of the SC, but again there are ways to avoid this. The rules from Young v

BAC apply. These allow the CA to overrule its own earlier decisions in certain circumstances, but

they are fairly limited. The Criminal Division of the CA has a little more flexibility as it is able to

overrule a decision in the interests of justice.

Distinguishing can also be creative. Although this applies to all courts it is more acceptable in the SC

or CA. A case may be distinguished where the material facts are different. An example is seen in

Wilson where Brown was distinguished. Although the facts were similar, as both involved serious

harm suffered during sexual activities, there were perceived differences. In Brown there was more

unacceptable violence and in Wilson the activity was between a man and his wife. Distinguishing

can be seen as more acceptable than overruling because the old law isn’t changed, just applied

differently to different facts. The senior courts can avoid the precedent without changing the law.

One reason is to achieve justice, as stated above, another is that the law should adapt to social and

technological changes. Parliament does not always react quickly to such changes and if the law is

outdated there should be a way to amend it. There may be gaps in the law because Parliament has

not responded to change or has not covered every eventuality. An example of responding to social

change is R v R, where the HL decided that it was no longer acceptable that a man should have

immunity from raping his wife. It is also an example of the balance between the roles of Parliament

and the courts. Although the SC and CA may not want to follow a precedent they will often do so,

albeit reluctantly. It is more acceptable for an elected Parliament to change the law, and the courts

recognise the supremacy of Parliament. An example is Cunningham 1981, where the HL criticised

the law that someone can be convicted of murder where there was only intent to cause serious

harm, but refused to overrule it. In several cases judges have indicated they would like the law to

change but have not done so, preferring to leave that to Parliament. So the judges in the SC and CA

might want to change the law but will not always do so even if it is within their powers. If they do

change the law, it is possible that Parliament will then amend the relevant law and restore its



supremacy. After R v R amendments were made by Parliament to the Sexual Offences Act, thus

bringing the judges’ decision into statutory law.

In conclusion, the SC and CA might not want to follow a previous decision for several reasons. In

particular in order to do justice, correct errors, modernise the law and to distinguish between cases

where the facts are different. If the senior courts have the power to avoid following the earlier law

it is right that they should exercise that power in such circumstances. It is clear that they usually do

so with restraint, and sometimes reluctantly. If Parliament wants to be seen as the supreme

lawmaker it can do as it did following R v R and amend the statute law. That way both fairness and

democracy is achieved. 20 marks



Task 15

There is no answer for the task on preparing evaluation notes.

Chapter 8 Murder

Task 16

The answer is in the table below the task.

Task 17

The facts are set out in Chapter 3. The murder charge failed in both Nedrick and Woollin becausethe jury found that D did not appreciate that death was a virtual certainty. This means there was nomens rea, so the offence of murder was not complete. (Where there is no mens rea for murder, theresult will be a manslaughter conviction.)

Task 18

You may have chosen a different case but here is an example using the way I applied the law toPagett.

Chua 2015

Facts:

D worked in a hospital and had contaminated saline bags with insulin.

He had medical knowledge.

He knew the saline bags would be given to patients, many of who were elderly and vulnerable.

Other nurses actually gave the contaminated saline to the patients.

Application with cases in support:

Actus reus

There is an unlawful killing, but did D cause it?

‘But for’ his action in contaminating the saline the patients would not have died (White). Hefactually caused death.

It was that action that played the most significant role in their deaths (Cheshire). The interveningact of the other nurses in administering the saline to the patients was foreseeable and so did notbreak the chain of causation (Roberts). He legally caused death.

We have actus reus but is it murder or manslaughter?

Mens rea

There may be direct intent but this is hard to prove so consider indirect intent.

He had enough medical knowledge to know his actions could cause death. This means he satisfiesthe Nedrick test because death or serious injury was a ‘virtual certainty’ and he had medicalknowledge so he must have appreciated this. He is guilty of murder.

Self-test questions

1 The actus reus of murder is the unlawful killing of a human being under the Queen’s peace.The mens rea has been interpreted as malice aforethought, meaning an intent to kill orseriously injure.

2 A result crime is one where a particular consequence is required as part of the actus reus.Causation will therefore be important when proving actus reus, as D’s actions must be thefactual and legal cause of the result.



3 The answer depends on which cases you chose; an example would be Nedrick. The victimwould not have died ‘but for’ his actions and it was foreseeable that someone could beseriously injured in an arson attack. (So he caused the death, but he was not guilty ofmurder because he did not have mens rea.)

4 The ‘virtual certainty’ test for mens rea was established in Nedrick 1986 and confirmed bythe HL in Woollin 1998.

5 I hope you have achieved the aims not only of this Chapter, but of the Chapters on actus reus(causation) and mens rea (intent) too.

Chapter 9 Loss of control

Task 19There is no guide for the task of making some notes from the Law Commission site.

Self-test questions

1 The Coroners and Justice Act 2009 applies to murder

2 The three things which need to be proved for s 54 are

that D lost self-control

the loss of self-control was triggered by something specified in s 55

a normal person of D’s sex and age would have reacted in the same way in D’scircumstances

3 The qualifying triggers are

D’s fear of serious violence from V against D or another identified person; or

a thing or things done or said (or both) which –

(a) constituted circumstances of an extremely grave character, and

(b) caused D to have a justifiable sense of being seriously wronged

or a combination of both of these

4 Two ‘characteristics’ which are not attributable to the reasonable man are jealousy andobsession.

5 The Act specifically excludes sexual infidelity as a qualifying trigger (note that although theact excludes revenge this would be an incorrect answer as it is not a trigger).

Chapter 10 Diminished Responsibility


Self-test questions

1 I hope so you have achieved the aims set out at the beginning of the Chapter.

2 The opening quote came from Byrne 1960.

3 Medical evidence will be required for an s 2 defence.

4 The defendant has the burden of proving the defence.

5 The Coroners and Justice Act 2009 amended the Homicide Act s 2 on the defence ofdiminished responsibility.



Chapter 11 Involuntary manslaughter

Task 21

A duty of responsibility was seen in Stone and Dobinson, and was breached by not taking sufficientcare of a relative.

A contractual duty was seen in Pittwood, and this was breached by not doing his job, which wasclosing the gate.

Task 22This will depend on your chosen scenario but you should have applied the law as with Wood &

Hodgson, repeated below:

Facts: A 10-year-old girl was visiting the Ds. She found some ecstasy tablets hidden in a cigarette

packet and took some. She later died in hospital and they were charged with gross negligence

manslaughter.

Applying the rules:

Risk of death: It is known that ecstasy can kill so there is a risk of death.

Duty: they owed her a duty of responsibility (Stone & Dobinson) as a visitor and/or as a child in their

care (note that in Evans the CA held that the duty in cases of gross negligence manslaughter was not

confined to family and professional relationships).

Breach: There was evidence that they had hidden the tablets, and that they had attempted to treat

her, but they did not call an ambulance for some time. They had breached their duty to her by not

taking reasonable care.

Gross negligence: The jury found that they had not shown a sufficiently high level of negligence to

be deemed criminal.

Result: They were not guilty of gross negligence manslaughter.


Task 24 (this answer is in the book but repeated here)

The unlawful act is different for each case and added below, for causation in fact and in law it mustbe shown that

‘but for’ D’s conduct the victim would not have died (causation in fact)

D made a significant contribution

nothing broke the chain of causation (causation in law)

These are applied below.

Hancock and Shankland (1986)

Throwing the stone is criminal damage. The driver would not have died ‘but for’ D throwing thestone and throwing the stone made a significant contribution to the death.



Pagett (1983)

Shooting at the police is assault; ‘but for’ D shooting at the police the girl would not have died.Shooting at the police made a significant contribution to the death and the police firing back wasforeseeable so did not break the chain of causation.

Nedrick (1986)

Setting the fire is arson, a type of criminal damage; ‘but for’ the fire the victim would not have diedand the fire made a significant contribution to the death.

Task 25

Constructive liability is where the mens rea and actus rea do not necessarily match. In manslaughterthere must be a death but there need not be any mens rea as regards that death. The mens rea isjust for whatever the unlawful act is, which may be quite minor, like criminal damage or battery. Ido not think it achieves justice because justice requires both fairness and clarity. In JF 2015 the boyswere young and not so much at fault as would be the case with an adult, but they were convicted ofmanslaughter based on an act of criminal damage. This seems unfair. As for clarity, any offencewhere the mens rea and actus reus don’t match is unclear. I agree with the Law Commission thatthis type of liability is wrong and in order to achieve justice all criminal offences should be based onan accordance of mens rea and actus rea.

Task 26

This will depend on your chosen scenario but you should have applied the law as follows.

Actus reus

Establish whether there was an unlawful act (any crime – Lamb)

Decide whether the act was dangerous using the objective test from Church

Apply the rules on causation in fact (White) and in law (Cheshire/Roberts) to decide if D caused thedeath

Mens rea

Decide whether D had intent (to commit the unlawful act) or was subjectively reckless (did D see therisk of whatever the unlawful act was and go ahead anyway?)

Self-test questions

1 The elements required to prove gross negligence manslaughter are

a risk of death

a duty of care

breach of that duty

gross negligence as regards that breach, which must be sufficient to justify criminalliability

2 It is possible to commit gross negligence manslaughter by omission if there is a duty to act,but not unlawful act manslaughter – Khan.

3 The opening quote came from Willoughby 2004.

4 In Church, D knocked a woman unconscious and then, wrongly believing her to be dead,threw her in the river to dispose of the ‘body’. The principle was that if reasonable peoplewould see the risk of harm, this will be enough to show it was ‘dangerous’.



5 The difference between Cato and Dalby is that in Cato, D was guilty of unlawful actmanslaughter by helping administer the drug; in Dalby, the chain of causation was broken bythe victim’s own act.

6 In Kennedy 2007, the HL decided that in the case of a fully informed adult self-administeringthe drug, it would never be appropriate to find the supplier guilty of manslaughter.

Summary and evaluation of the fatal offences

Task 27

I have added the principles to the cases, for the facts refer to the relevant chapter

Case Principle

Fagan An act may be seen as continuing

Stone and DobinsonLiability for an omission arises if there is a duty of responsibility forsomeone

Roberts A foreseeable act will not break the chain of causation

Cheshire D must make a significant contribution to the result

Blaue D must take V as found

DPP v Smith The mens rea for murder is intent to kill or seriously injure

Task 28

The appropriate cases are added following the principles

1 That sexual infidelity may be relevant to the circumstances of D, even though excluded by s55 – Clinton 2012.

2 That an ‘abnormality of mind’ (now mental functioning) for diminished responsibility is onethat reasonable people would term abnormal – Byrne 1960.

3 An abnormality caused by alcoholism may be accepted as diminished responsibility – Tandy1989.

4 Impairment of responsibility need not be total but must be more than trivial – Lloyd 1967.

5 Where there is evidence of intoxication as well as another cause of ‘abnormality’ the juryshould ignore the intoxication – Dietschmann 2003.

Tasks 29 & 30There is no answer for these but hopefully you made some notes to help give you a sound base for

an evaluation of the law.

Chapter 12 Theft

Task 31

The answers are given in the paragraph below the examination pointer.

Task 32 (this is covered at the end of the chapter but here is the answer)

You may be found guilty of theft of the watch. The actus reus is the appropriation (by picking it up –Gomez) of property (the watch) belonging to another (the shop).



You acted dishonestly because ‘ordinary reasonable people’ would regard the fact that you took it,and only put it back because someone was watching, as dishonest and you know that such peoplewould see it as dishonest (Ghosh). You intended to permanently deprive the shop of the watch.Even though you put it back, this doesn’t matter. It is intent (mens rea) to permanently deprive thatmakes it theft. So you are guilty of theft.

Task 33

I have repeated the brief scenarios for clarity.

Sam gets home from college to find she has picked up the wrong coat by mistake. She decides tokeep it.

Answer: This is theft according to s 3(1).

Peter buys a book to read on his journey home and thinks it is such rubbish he leaves it on the trainin disgust. Susan picks it up and takes it home.

Answer: This is not theft as the book has been abandoned.

Simon pays a local builder £100 to buy sand to build a patio; the builder buys himself a second-handdishwasher instead.

Answer: This is theft because under s 5(3) the builder has an obligation to deal with it in the waySimon requires.

Mary buys a CD and gives a £20 note. She is given change from a £50 note and keeps it.

Answer: This is theft. Under s 5(4), if you are given something by mistake (and so have an obligationto give it back), then keeping it can be theft.

Task 34

You find a football in your garden and keep it.

Answer: You could probably succeed using s 2(1)(a).

You take some money from a friend’s bag in an emergency.

Answer: You could probably succeed using s 2(1)(b).

You find a £2 coin in the street and keep it.

Answer: You could probably succeed using s 2(1)(c).

You find a handbag containing a wallet and credit cards in the street and keep it.

Answer: You could try using s 2(1)(c), but are unlikely to succeed as it would not be hard to trace theowner so you would have trouble convincing a jury that you believed you would not be able to dothis.

Task 35

Dave takes Steve’s tickets for that night’s pop concert and returns them the next day.

Answer: s 6 is satisfied, although there is arguably no intent to permanently deprive there is no‘goodness’ left in them.

Frank takes £10 from his mother’s purse and puts it in his pocket. His sister sees him and says shewill tell if he doesn’t return it. He puts it back.

Answer: Although it may be hard to prove, s 6 is satisfied. He does not need permanently to depriveanyone, only to intend to.

Ellie borrows a book from a friend and reads it. She then throws it away.



Answer: Although OK at first as she only borrowed it, s 6 is satisfied when she throws it away as shetreats the book as her own and intends to permanently deprive her friend of it.

Self-test questions

1. Wild plants can be classed as property when taken for reward or sale or other commercialpurpose s 4(3).and wild animals can be classed as property if they have been tamed or keptin captivity s 4(4).

2. Gomez followed Lawrence on the issue of consent.3. £60,000 was appropriated in Hinks4. The three statutory beliefs in s 2 are:

a. that he has in law the right to deprive the other of it s: 2(1)(a)

b. that he would have the other’s consent if the other knew of the appropriation andthe circumstances of it: s 2(1)(b)

c. that the person to whom the property belongs cannot be discovered by takingreasonable steps: s 2(1)(c)

5. These beliefs do not have to be reasonable

6. Borrowing can amount to intent permanently to deprive when all the goodness or virtue isgone.

7. The section numbers are:

Dishonesty – s 2

Appropriates – s 3

Property – s 4

Belonging to another – s 5

Intent to permanently deprive – s 6

Chapter 13 Robbery

Task 36

There is no answer for this one as it was just to read back over the rules for theft to remind you ofthem.

Task 37 & 38

I have put these two tasks together as the same case is used. So applying the law to Clouden:

Appropriating s 3 – wrenching a shopping basket from someone’s grasp is assuming the rights of theowner of it

Property s 4 – the shopping basket

Belonging to another s 5 – the person from whom the basket was taken (who was in possession of iteven if she didn’t own it)

Dishonesty s 2 – none of the three things specified in s 2 as not being dishonest applies here so theGhosh test must be used. Taking the property would not be seen as honest by ordinary people andD must have known this

Intention to permanently deprive s 6 – even if D intended to return or abandon the basket, theintention was to treat the property as his own to dispose of regardless of the owner’s rights so s 6 isalso satisfied



Therefore we have theft. The extra ingredient for robbery is force or the threat of it immediatelybefore or at the time of the theft, and in order to steal. As seen in Corcoran, the force can be minor.The word ‘wrenching’ indicates at least minor force; it was at the time of the appropriation and inorder to steal so the actus reus of robbery is satisfied. In addition to the mens rea for theft, forrobbery the force or threat of it must be intentional or reckless and this can be seen in thewrenching of the bag from the person holding it. D is guilty of robbery.

Self-test questions

1. Force or the threat of it turns theft into robbery

2. The five elements to theft are:

a. Dishonesty – s 2

b. Appropriates – s 3

c. Property – s 4

d. Belonging to another – s 5

e. Intent to permanently deprive – s 6

3. Appropriation was treated as continuing in Hale

4. Snatching a bag amounted to force in Corcoran

5. The mens rea for robbery is that the force or threat of it must be intentional or reckless

Chapter 14 Attempts

Task 39

The effect of causation is that if causation cannot be proved then the crime will not have beencommitted, so the charge will be the attempted crime. A case example is White, where D tried topoison his mother but she died before it took effect. His actions did not cause her death so he wasnot guilty of murder, but of attempted murder.

Self-test questions

1. Shivpuri overruled Anderton v Ryan on the issue of impossibility so that a person can nowbe convicted of attempting the impossible.

2. Attempt is defined as ‘with intent to commit an offence, a person does an act which is morethan merely preparatory to the commission of the offence’.

3. Attempt is defined in the Criminal Attempts Act 1981.

4. The CA allowed the appeal in Pace & Rogers because the property was the property of thepolice, it was not stolen. This meant they could not be guilty of attempt because there wasno intent to convert criminal property, so no mens rea.

5. Millard & Vernon confirmed that the mens rea is intent and nothing less.

Chapter 15 Insanity and automatism

Task 40

The court decided the host of a TV show was not guilty in Madeley, because he merely forgot to payso had no mens rea (intention).

Task 41

In Quick, D was suffering from hypoglycaemia as result of failing to eat after taking his insulin. Thispart of the sequence can be ignored as it is a non-event. This would be on the left side of the



diagram; the defect was caused by an external factor, i.e., the insulin itself. The defence would beautomatism not insanity.

In Hennessey, D had taken a car and driven whilst disqualified. He argued automatism caused byfailure to take his insulin. This would be on the right side of the diagram; the defect was caused byan internal factor, the disease itself. The defence would be insanity, not automatism.

Self-test questions

1. The insanity rules come from M’Naghten’s case.

2. The quote opening this Chapter came from Windle.

3. The defence of automatism applies when the cause is external.

4. The defence of insanity applies when the cause is internal.

5. A case example for each of these defences to show this difference could be Quick where theinsulin was external so automatism applied and Sullivan where epilepsy was held to be adisease of the mind and so insanity applied.

Chapter 16 Intoxication

Task 42 (this is in the book but repeated here)

A possible defence in Lipman is insanity. He clearly had a ‘defect of reason’ and he did not know‘the nature and quality’ of his act. He thought he was fighting snakes not strangling his girlfriend.However, the defect was not caused by a ‘disease of the mind’ but by the LSD. This is an externalfactor so consider automatism. The defence of automatism fails because the loss of control was self-induced (taking LSD). It was voluntary. The defence of intoxication can be argued. The effect of thedrug meant he did not have the required mens rea. He had no intent to kill or seriously injure so wasnot guilty of the specific intent crime (murder), but as the intoxication was voluntary, he was guiltyof the related basic intent crime (manslaughter).

Task 43

Insanity, automatism or intoxication apply as follows:

Lipman 1970: This is intoxication. It was not insanity, as that must be caused by an internal disease.Automatism fails because any loss of control was self-induced. Intoxication can succeed for murder(a specific intent crime) if it negates mens rea and will reduce it to manslaughter.

Bailey 1983: Again, it cannot be insanity, as any defect of reason must be caused by an internaldisease and insulin is an external factor. Automatism is likely to fail because his loss of control wasself-induced (although the court indicated it was a possibility). Intoxication can succeed for GBHonly if charged under s 18, (a specific intent crime) if it negates mens rea. He would still be guilty ofthe related basic intent crime under s 20.

Hardie 1984: Here automatism can succeed, as the taking of a drug meant to calm you is different totaking an unpredictable drug and not seen as self-induced. Intoxication could also succeed as itwould not be seen as voluntarily taking an unpredictable drug as he thought it would calm him.

Self-test questions

1. The difference between specific and basic intent is that the first does not includerecklessness.

2. A crime for each type is murder, which is a specific intent crime and assault, which is a basicintent crime.

3. ‘Dutch courage’ is where D drinks to summon up courage to commit a crime and it is nodefence because D has mens rea (intent to commit the crime once intoxicated).



4. If D successfully pleads intoxication to a specific intent crime such as murder the result is aconviction for a basic intent crime e.g., manslaughter.

5. The quote at the beginning of this Chapter came from Attorney General for NorthernIreland v Gallagher.

Chapter 17 Self-defence

Task 44

I have repeated the scenarios in the task here for clarity.

Amy is walking down the street one dark and rainy night when a young man steps out of a doorwayright in front of her. Being a paranoid sort of person, she thinks she is being attacked and strikes outin alarm, cutting his cheek. In fact, he was just coming from his own house.

Answer: Amy can use self-defence based on her mistake. Her mistake need not be reasonable aslong as it is genuine (Williams (Gladstone). This was confirmed in Martin and by S 76 CriminalJustice & Immigration Act 2008. Her defence should succeed, resulting in an acquittal.

Walking home from the pub in a drunken haze, Amy sees what she thinks is a man with a weaponcoming towards her. She picks up a brick and hits him over the head, causing severe concussion anda nasty cut. It turns out he is from the local radio and is interviewing people on the streets for theirviews on violence at closing time.

Answer: Amy cannot use the defence of self-defence based on a mistaken belief that she was beingattacked. According to O’Grady and confirmed by S 76, it is not possible to rely on a mistaken beliefcaused by voluntary intoxication. Her defence will fail.

Amy is walking down the street when she sees someone whom she believes is assaulting a youngman. She intervenes and attacks him but he promptly arrests her. It turns out he is a policeman inplain clothes.

Answer: Amy can use self-defence. Even though she is not personally under attack, defence ofanother is covered by the defence. Also, as explained above, it is her belief that is important(Williams (Gladstone) / Martin / S 76). Her defence should succeed, resulting in an acquittal.

Self-test questions

1. The two main questions for the jury are

a. Did D honestly believe the action was justified?

b. Was the degree of force reasonable in the circumstances?

2. Self-defence was rejected by the jury in Martin because the force used was excessive andunreasonable.

3. Yes, according to Williams, and confirmed in Martin and by s 76 Criminal Justice &Immigration Act 2008 you can rely on a mistaken belief to justify using force.

4. It was decided in Hatton, and confirmed by s 76, that D cannot rely on a mistaken beliefcaused by voluntary intoxication.

5. The result of a successful plea of self-defence is an acquittal.

Chapter 18 Duress

Task 45

I have repeated the scenarios in the task here for clarity.Can I successfully use the defence of duress in the following situations?



I am threatened with being exposed as a cheat and a drunk if I do not steal a packet of smoked

salmon from the supermarket. I do so and am charged with theft.

Answer: No, there must be a threat of harm (Valderrama-Vega/Van Dao).

I am chased by a man who is threatening to hit me. I steal a car to escape. I drive to a nearby house

where I have friends. I am charged with theft.

Answer: Yes, probably, as I have only driven a short distance to my friends (DPP v Bell).

I am at a party and a bit drunk. As I live 50 miles away I intend to stay overnight. An old enemy

turns up and threatens to beat me up. I run outside and see my car in the drive. I get in and drive all

the way home. I am charged with driving with excess alcohol.

Answer: No, here I have not driven a short distance to safety but all the way home. I was not in

danger at the time, as was the case in Mulally 2006.

Self-test questions

1. The test for duress was established in Graham2. Hasan confirmed that D must have good cause for the belief3. The test for self-induced duress is an objective on (Ali 2008)4. Quayle confirmed that the source of the threat must be external, not from D

Summary Task 46

I have only added the principle here. For the facts, refer to the relevant cases.

Case Principle

AG’s Reference (No. 6 of1980) 1981

that consent could be implied in certain activities such as sports andsurgery

Sullivanthe defence of insanity is appropriate where the defect is caused byan internal factor (and epilepsy is a disease of the mind, internal)

Broome v Perkinsif D is able to exercise some control then automatism is notavailable as a defence

Kingston a drunken intent is still an intent

Majewski intoxication is no defence to a basic intent crime

Williams (Gladstone) D is judged on the facts as they appear to be

Task 47 Application Practice

Diminished responsibility is a defence to murder which comes under the Homicide Act 1957 s 2(1) as

amended by s 52 of the Coroners and Justice Act 2009.

Mrs Freaney would first need to show that she was suffering from an ‘abnormality of mental

functioning’ at the time of the killing. Under the old law, in Byrne 1960, it was said that ‘abnormality

of mind’ meant a state of mind so different from that of normal human beings that the reasonable

man would deem it abnormal. It is likely that abnormality of mental functioning will be interpreted

in the same way. The abnormality must arise from a ‘recognised medical condition’. Severe stress is

likely to amount to a recognised medical condition; in Gittens 1984, chronic depression was

accepted as such. Therefore her ‘abnormality’ arose from, or was caused by, the severe stress. She

will then need to convince the jury that the abnormality of mental functioning, which arose from her

stress, substantially impaired her ability to do one of the 3 things set out in s 52. These are



(a) to understand the nature of her conduct;

(b) to form a rational judgment

(c) to exercise self-control.

In Lloyd 1967, the court held that substantial did not mean total but the impairment must be more

than trivial, and again this is likely to apply to the law since the 2009 Act. She seemed to understand

the nature of her conduct, but it is possible she could not form a rational judgment due to the stress.

It is also arguable that she was unable to exercise self-control at the time of the killing. The

abnormality of mental functioning would appear to have caused, or at least significantly have

contributed to, the killing of her son. Her plea of diminished responsibility is likely to succeed under

the new law, so she would be convicted of manslaughter not murder.

In the actual case her plea of diminished responsibility was accepted and she was sentenced to a

supervision order.

Examination practice Tasks 48 and 49

There are no answers for these two tasks.

Task 50 Examination paper 7162

Multiple choice questions 1 to 5, one mark for each correct answer.

Question 1 D

Question 2 C

Question 3 A

Question 4 B

Question 5 A

Question 6

I would explain to Damon that ABH is an either-way offence and there are two possible extrahearings before the actual trial for such an offence. One is a plea before venue. I would tell him thatit is called a ‘plea before venue’ procedure because it is before the venue is decided on, which couldbe either the magistrates’ court or the Crown Court. It is at this hearing that Damon will plead guiltyor not guilty, and this will affect what happens next.

If Damon pleads guilty, the court can move on to sentencing unless a pre-sentence report is needed.If he pleads not guilty, a date will be set for a mode of trial hearing to decide whether to allocate thecase for trial at the magistrates’ court or the Crown Court. At this hearing, if the magistrate decidesto try the case he will ask Damon if he prefers to be tried by a jury. If the magistrate decides thecase should be sent to the Crown Court then Damon has no choice in the matter. Finally I would tellhim that the burden of proof refers to who has the task of proving the case, which in a criminal caseis the prosecution. The standard of proof is the degree to which the case must be proved. Theprosecution must prove that D is guilty beyond reasonable doubt. 5 marks

Question 7

The Criminal Attempts Act 1981 s 1(1) provides that a person can be guilty of attempting to commitan offence if that person intends to commit the full offence and does an act which is more thanmerely preparatory to the commission of it. It is not always clear what amounts to an act which ismore than merely preparatory. It is a matter for the jury based on the particular facts. Many casesbefore the Act suggest that Brad must have reached the point of no return to be guilty, and it is



unlikely that this is the case as the word ‘approaches’ suggests that he has not actually reached thedoor. Cases since the Act have not clarified what amounts to more than merely preparatory. InTosti 1997, D was examining a padlock on a barn door while deciding whether he could break in andthis was enough for attempted burglary. Here though, Brad has not yet reached the door. InGeddes 1996, D was found in a boys’ toilet in a school. He ran off when challenged by a teacher, butleft behind a bag containing a large knife, a roll of tape and rope. His conviction for attempted falseimprisonment was overturned on appeal because he had not approached any victim. This is likely tobe the same for Brad.

Again, in Campbell 1991, a conviction of attempted robbery was overturned on appeal on the basisthat D’s act was no more than preparatory. D was arrested within a yard of a post office carrying afake gun but said that although he had intended to rob it (so he had mens rea) he had changed hismind and was walking away. These facts are similar to Brad’s case and that is why I would say that acharge of attempted robbery is likely to fail. 5 marks

Question 8

It is an offence under s 20 to unlawfully and maliciously wound or inflict grievous bodily harm.

The actus reus requires Dave to inflict serious harm (Saunders) and the mens rea is intention orsubjective recklessness (Cunningham) to cause some harm (Parmenter). Dave threw the brick asTommy passed by so must have seen a risk of some harm occurring. There is no need to foreseeserious harm, this was established in Mowatt and confirmed by the HL in Parmenter. So Dave hassufficient mens rea.

The main issue is causation. The sprain is not enough for GBH but the permanent injury is. Theprosecution must prove both factual and legal causation. The first is seen in White where a mantried to kill his mother but she would have died anyway. It could not be said that ‘but for’ his actionshe would not have died so he was not guilty of murder. In Pagett, a man held a girl in front of himand she was killed when he shot at the police and they returned fire. Here it could be said that butfor the fact that he held her in front of him when he fired at the police she would not have died, sohe was guilty. For legal causation, there must be an unbroken link between D’s actions and theresult. The chain can be broken by an intervening act but only if it is unforeseeable. In Pagett, it wasforeseeable that the police would return fire so it did not break the chain. It is not often thatmedical treatment will break the chain as seen in Cheshire. Even though the treatment was wrongand part of the reason the man died, the court said it did not break the chain of causation. Medicaltreatment would only break the chain if it was ‘palpably’ wrong and if D’s act made a significantcontribution then causation will be proved even if another, intervening act also contributes.Applying the rules we can say that Tommy would not have been hurt ‘but for’ Dave’s actions andtherefore would not have gone to hospital and had his wrist treated incorrectly, thus the permanentinjury would also not have occurred ‘but for’ Dave’s actions. Dave can argue the poor treatmentbroke the chain of causation but Cheshire shows this argument is likely to fail. It was also said inCheshire that if D makes a significant contribution to the result then the chain is not broken, and inRoberts it was said that a foreseeable event will not break the chain. Throwing the brick made asignificant contribution to Tommy’s injury and it is foreseeable that any hospital treatment givencould go wrong in some way. Dave has therefore caused Tommy’s permanent injury, so he will beliable under s 20 Offences against the Person Act for inflicting grievous bodily harm as he has boththe actus reus and the mens rea. 10 marks

Examiner’s comment: No marks will be awarded for a discussion of either s 18 or s 47 even if youback it up as the question is very specific as to which offence you need to discuss. Sometimes you willbe directed to a specific offence, but if not then it may be necessary to discuss more than one asthere is an overlap. Always read the questions carefully.



Examiner’s comment: Note that the following answers for the extended writing questions maycontain more than you would have time for. The main thing in an application question is to be sureyou can accurately identify and state the law, and then apply it in a logical manner to reach yourconclusion. That way you should earn good marks even if your answer is a little briefer. Similarly, inan essay you should identify the issue in the question and then deal with these issues in a logical wayleading to a conclusion as appropriate.

Question 9

The rules on constructive manslaughter are that there must be an unlawful act, which is dangerousand which causes death. That is the actus reus. The mens rea is intent or recklessness as regardsthe unlawful act. Here Luke and Jill have committed arson which is a form of criminal damage, this isthe unlawful act. Lighting a fire inside a building is likely to be seen as dangerous by ‘all sober andreasonable people’ as required by Church. This is a matter for the jury but it is likely that Luke andJill’s act is dangerous in the Church sense. The unlawful act has caused the Billy’s death both in factand in law. It can be said that Billy would not have died ‘but for’ their actions so factual causation isclear. According to Cheshire if D makes a significant contribution to the result this will suffice. Heretheir actions in setting the fire have made a significant contribution to the death, as in Nedrick.There is nothing to break the chain of causation so they have also legally caused Billy’s death. Asregards mens rea, they do not need to intend or be reckless as to causing death, or even harm, theyjust need mens rea for the arson. Even though they did not know the man was there, they intendedto set fire to the duvet so also have mens rea. They will be liable for unlawful act, or constructive,manslaughter.

Fault has an important role to play in law as a person is not usually liable without proof of fault, orblameworthiness. This is particularly the case in the criminal law where the main types of fault areintent or recklessness to commit the criminal act. The rules on unlawful act manslaughter do notseem to meet the usual requirement of fault. Although they were at fault in setting the fire this isnot the same level of fault as that usually required for killing someone. This type of manslaughterinvolves constructive liability. This is where the actus reus and mens rea do not match and it hasbeen criticised by the Law Commission (most recently in its report on the non-fatal offences in2015). As explained above, Luke and Jill can be guilty of the serious crime of manslaughter withoutthe usual requirement that there is mens rea as regards the death, just the much lower level of faultof intending or being reckless in committing the unlawful act of arson. In its 2006 report ‘Murder,manslaughter and Infanticide’ the Law Commission proposed a three-tier system for homicide.Manslaughter would consist of unlawful killings caused by acts of gross negligence and unlawfulkillings caused by a criminal act that was intended to cause injury or by a criminal act foreseen asinvolving a serious risk of causing some injury. These are the two forms of manslaughter as now, butfor unlawful act manslaughter there would have to be mens rea at least as regards a risk of injury.This would be a higher level of fault than now but would still be wide ranging as it would onlyrequire intent or recklessness as to some injury. This would seem fairer than the current law.

I agree with the Law Commission that constructive liability is wrong and that the accordanceprinciple (where the actus reus accords with the mens rea) is to be preferred. It is important notonly to prove fault in criminal law but also to set it at the right level for the crime. In criminal law, Iwould suggest that liability should usually depend on fault and certainly should do for all ‘real’crimes, as suggested by the House of Lords in Sweet v Parsley, where it was held that an Act ofParliament should be presumed to require fault unless it specifically states otherwise.

A more recent example is Taylor 2016. D took a car without consent and collided with a scooter.The scooter rider later died and D was charged with aggravated vehicle taking. This offence includestaking a vehicle and causing injury ‘owing to the driving’. The prosecution argued that mens rea wasonly needed as regards the taking of the vehicle and nothing more. The Supreme Court pointed outthat this was not a regulatory offence, referring to Sweet v Parsley, and that there must be some



element of fault in the driving which contributed to the death. The fact that he had taken the carwithout consent was not enough, that did not cause the death. It seems right that, unlike the caseof Luke and Jill, there should be a higher level of fault required in cases involving a death. As theSupreme Court pointed out, it was not a regulatory offence where there is a greater argument forhaving liability without fault because these are usually minor offences.

I recognise that for minor regulatory offences liability without fault (strict liability) may beacceptable. There is little stigma involved in being found guilty of such offences and it saves thetime and expense of a court action. However, I believe that in most cases criminal liability should bebased on fault. I think no-fault liability should only apply to health and safety matters, where publicsafety is at risk. An example is Jackson 2006, where the CA held that flying an aircraft at a heightlower that 100 feet was a strict liability offence under the Air Force Act. The Judge referred toSweet v Parsley and ruled that the statute created an offence of strict liability and did not requirethat D knew he was flying too low. D’s argument that the prosecution needed to prove at leastrecklessness was rejected. The creation of the offence was to protect the public and the publicinterest overrode the need to prove mens rea.

Possibly liability without fault could be extended to matters of serious social concern, e.g., inAlphacell v Woodward 1972, the HL held that the offence of causing polluted matter to enter a riverwas a strict liability offence because pollution was a matter of the “utmost public importance”. Inthese cases, imposing strict liability protects the public and it also makes people more careful. I donot think it should apply to cases like that of Shah, where an employer had told his staff not to selllottery tickets to anyone underage but was still guilty when a member of staff did so.

In conclusion, I believe the role of fault in the criminal law is an important one but is not always setat the appropriate level, as with Luke and Jill. The level of fault should reflect the seriousness of theact committed e.g., for murder there should be intent to kill not seriously injure, and for unlawful actmanslaughter there should be intent or recklessness as regards at least some injury. I believe thatliability should normally, but not always, depend on fault as it is acceptable on occasion for there tobe no-fault liability. This protects the public and makes people more careful, however such casesshould be restricted to minor regulatory offences, matters of health and safety or serious matters ofsocial concern. 15 marks

Examiner’s comment: Although this answer is brief on manslaughter it covers all the necessaryelements of the offence and applies these in a logical manner to reach a conclusion. The discussionof fault covers everything required by the question; the importance of fault, the extent to which therules on constructive manslaughter meet the usual requirement of fault and whether liability shouldalways depend on fault. The conclusion is good as it ties these points together and refers back to thequestion.

Note that this question was based on JF 2015, where two teenagers were convicted of manslaughteron these facts.

Question 10

Olga may be liable under the Theft Act s1 for theft in respect of both the coffee and keeping theexcess change. She could also be liable under s 8 for robbery when she pushed the other shopper. Ifshe says she would not have taken the coffee had she been sober she may try to rely on the defenceof intoxication. Taking these issues in turn, theft is the appropriation of property belonging toanother with the mens rea of dishonesty and intention permanently to deprive. When she put thecoffee in her pocket Olga appropriated it as described in s 3 and Morris. S 3 defines appropriation as‘any assumption by a person of the rights of an owner’.

In Morris, it was made clear that a shopper has appropriated a product if doing somethingunauthorised, in that case switching labels and with Olga, putting the coffee in her pocket. Thecoffee is clearly property under s 4 and belonged to another as required by s 5, the supermarket. At



the time of the appropriation, she intended permanently to deprive the owner of it. All that remainsis to prove she acted dishonestly. This is not defined in the Act and s 2 does not apply, so dishonestymust be established by using the Ghosh test. This asks two questions and is a matter for the jury.The first question is whether Olga’s act was dishonest by the ordinary standards of reasonable andhonest people. If not, she is not dishonest. If so, the second question is whether she realised the actwould be regarded as dishonest by such people. In this case, I think most people would regardputting the coffee in her pocket as dishonest and I also think Olga would realise this. All theelements of theft are therefore present and the fact that she later put it in her basket is irrelevant asthe theft has already been committed. It could be hard to prove though, in which case attemptedtheft is a possibility, but that is outside the scope of this question which refers only to the Theft Act.

As regards the excess change, s 5(4) covers this type of situation. This provides that if someonereceives something by mistake and there is an obligation to return it, then not doing so can be theft,because the property is deemed still to belong to the person giving it. A case example is AG’sReference No 1 of 1983 where D received an overpayment of wages and was guilty of theft forkeeping it. Olga knew she had been given too much change because she ‘rushed to leave’, this alsoindicates both dishonesty and intention permanently to deprive.

As she pushed another shopper out of the way there is some argument she has committed robbery.This is theft with the addition of force, or the threat of it. However, the force must be at the time ofthe theft and ‘in order to steal’. The coffee had already been stolen so this would probably not berobbery. However, it may be that Olga has committed robbery of the excess change. In Hale, the Dswere guilty even though they had used force after appropriating the property, as the appropriationwas seen as a continuing act. This may be the case here. If so, then the fact that she only pushedthe shopper is likely to be enough. It was made clear in both Clouden and Corcoran that force canbe minimal, and pushing someone is using as much force as snatching a bag.

The final issue is whether she can use the defence of intoxication. This is not often a defence,especially if voluntary, as here, but can be if it removes mens rea. It was established in Majewskithat it could be a defence to a specific intent crime but not a basic intent one. Theft is a specificintent crime because it requires intention permanently to deprive; recklessness is not enough.However, it was made clear in Kingston that even if involuntary, the intoxication must remove mensrea. In Kingston, the man had said he would not have committed the offence had he been sober,which is what Olga said. However, the court held that this was not enough and said that drunkenintent is still intent. Thus, it is likely that Olga will fail in using the defence because not only was thedrink taken voluntarily, but ‘several glasses of wine’ is unlikely to be enough to remove mens rea.

In conclusion, all the requirements of theft are present for both the coffee and the excess change.However, she may say that she only took the coffee absentmindedly, as in Madeley, and when sherealised she put the coffee in her basket. If the jury believe this, then as with Madeley she will befound not guilty. However, ‘she saw she had been given too much change and rushed to leave’ sothe charge of theft in respect of the excess change is more likely to succeed. Also, if the courtdecides that pushing the other shopper was at the time of the theft and in order to steal she may beconvicted of robbery. Whichever charge is brought the intoxication defence is likely to fail, based onKingston. 30 marks

Examiner’s comment: This answer clearly identifies all the issues in the opening paragraph and thendeals with each in a logical manner to reach a sustainable conclusion. It is acceptable that theconclusion is not absolute because it is not clear-cut. The cases are all relevant and briefly explainedas regards the legal principle. It was also correct not to continue with a discussion of attempt.Although this would be possible, the question clearly requires only liability under the Theft Act to bediscussed.



Question 11

Murder is the unlawful killing of a human being under the Queen’s peace. This is the actus reus andit must be done with ‘malice aforethought’, which is the mens rea and means intention. The actusreus is satisfied but it is not clear whether Darpak intended to kill the man. However, it was madeclear in DPP v Smith that it is enough that he intended seriously to injure him. This was seen morerecently in Sindall 2014 where D was attempting to leave a house he had burgled when the ownertried to stop him. D hit the owner several times with a torch he was carrying. The jury accepted thathe did not intend to kill the man, but found that he did intend to cause grievous bodily harm. Hewas therefore guilty of murder. As Darpak was using a knife it seems likely that he at least intendedserious harm so a charge of murder is likely.

If Darpak is charged with murder he may be able to use the defence of loss of control under theCoroners and Justice Act 2009. It is also possible he could rely on self-defence and this would bebetter for him as the first defence only reduces his conviction to one for manslaughter, whereas thesecond would mean an acquittal. I will therefore consider self-defence first.

There are two main questions to consider and these are whether D honestly believed the action wasjustified and whether the degree of force was reasonable in the circumstances. The first is asubjective question, so it is what Darpak believes that matters. He thought the man was going to hithim with the bottle so he may satisfy this first part. However, the second question is objective, whata reasonable person would see as reasonable in the circumstances that Darpak was in. S 76 of theCriminal Justice and Immigration Act 2008 states that the degree of force used by D was not‘reasonable in the circumstances’ if it was disproportionate. This is where he is likely to fail, as inMartin, where the jury rejected a plea of self-defence by a farmer who shot and killed a 16-year oldburglar and seriously injured another. The evidence was that they were retreating and posing nothreat, and the jury felt he used excessive force in the circumstances.

Lashing out with a knife may be seen as disproportionate and if so the defence will fail.

The defence of loss of control under the Coroners and Justice Act 2009 may be more likely tosucceed.

S 54 requires that D’s act resulted from a loss of self-control; the loss of self-control had a qualifyingtrigger as specified in s 55 and a person of D’s sex and age would have reacted in the same way inD’s circumstances.

Darpak may have lost control as he ‘lashed out’ with a knife. The qualifying triggers are things doneor said or fear of serious violence. There are two exclusions which could apply here. Firstly, hecannot rely on his wife’s sexual infidelity as a thing said or done and secondly he cannot rely on fearof violence if he incited it ‘for the purpose of providing an excuse to use violence’. The first trigger islikely to be excluded. As for the second, he may have incited the violence as he attacked the manfirst, but he does not seem to have done so for the purpose of providing an excuse to use violence.He could therefore rely on fear of serious violence as triggering his loss of control.

The final question is whether a person of Darpak’s sex and age would have reacted in the same wayin D’s circumstances. Here he can use his wife’s infidelity. This was established in Clinton where aman killed his wife who had been unfaithful. The judge held that the wife’s infidelity should beignored as this was excluded by the Act. The CA held that regard should be had to ‘thecircumstances of D’ and this meant all the circumstances should be taken together, so could includethe sexual infidelity. The effect of the principle of law which resulted from Clinton in a case likeDarpak’s is that he cannot rely on it as a trigger in itself, but it can be taken into account as acircumstance. This means the final question will therefore be whether a person of Darpak’s sex andage would have reacted in the same way on finding his wife asleep on the sofa with another man.



In conclusion, he is likely to be charged with murder and the defence of self-defence will probablyfail. However, he may succeed with the loss of control defence based on fear of serious violence.He must, however, have lost control and this is not clear. If the loss of control defence doessucceed, his conviction will be for manslaughter.

The purposive approach to statutory interpretation is that instead of taking the words of an Actliterally, the judge will look behind the words to try to establish the purpose Parliament had whenpassing it. In seeking to give effect to the purpose of legislation the judge will look at the Act as awhole and at debates during the passing of it. The purposive approach can mitigate the harshness ofthe literal rule so seems to be sensible. Sometimes it is better to consider the spirit of the law ratherthan the strict letter of the law in order to apply it fairly.

In order to use the purposive approach effectively it is necessary to try to find out what Parliament’sintention was at the time the Act was passed. This requires the use of external aids such as LawCommission reports and Hansard (which contains details of the debates during the passing of theAct) and internal aids such as the Act itself. Use of both these can be seen in Clinton, where the CAused Hansard to look at the parliamentary debates during the passing of the Coroners and JusticeAct, when interpreting the rules regarding sexual infidelity. This has only been allowed since thecase of Pepper v Hart and it does mean judges have a better idea of what Parliament intended. TheCA also looked at the purpose of the Act as a whole when determining that sexual infidelity could beincluded in s 54 concerning the circumstances D was in. This did not change the law on what couldbe a qualifying trigger, as the CA interpreted the Act as still excluding sexual infidelity if it was theonly trigger relied on, but as allowing it to be taken into account as one of the circumstances of D.

In conclusion, the purposive approach can be used to achieve justice as long as the judges can findout what Parliament intended. To do this in Clinton they referred to various speeches in Parliamentduring the passing of the Act and also looked at the Act as a whole. This seems to be the correctapproach as the principle of law which arose from the case is that sexual infidelity can be taken intoaccount as a circumstance, but the CA did not suggest that it was a qualifying trigger so s 55 standsas excluding it as such. Overall, I believe that the purposive approach to legislation appears to be areasonable way of interpreting statutes. 30 marks

Examiner’s comment: The Act is well applied to the facts and although the conclusion is not absolutethat is fine as the situation is not clear. As the answer (rightly) excluded sexual infidelity as a ‘thingsaid or done’ trigger it is fine not to discuss that these must be extremely grave and justifiably causeD to feel seriously wronged. The discussion of the purposive approach covers all that was required bythe question, including the effect of the decision on Darpak’s situation.

This scenario is based on Dawes 2013. D relied on self-defence and did not raise the defence of lossof control. The jury concluded that the violence used was excessive so self-defence could notsucceed. The judge did not put the alternative defence of loss of control to the jury and D appealed.The CA confirmed the judge’s decision and made clear that there was no longer a need to put thedefence of loss of control to the jury unless there was evidence that loss of control could apply in thesituation. On the facts there was insufficient evidence of loss of control so his conviction for murderwas upheld.

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