Postgraduate Diploma in Law/CPE
LWM05: CRIMINAL LAW
Outline Solutions, 22 May 2015
Question 1
This is to enable wide and discerning discussion of the nature, purpose and context of
self defence in the criminal law with a focus on the term ‘reasonable force’ as a problem
area. Critical evaluation of operation and common law development of this area, with
reference to broad range of caselaw expected - Palmer, Williams (Gladstone),
Beckford, Owino etc. Concept of necessary and reasonable force. Genuine belief even
if proactive but no allowance for unreasonable/ disproportionate force being used
Clegg, Martin, Dewar. Intoxicated mistake as to the need for self defence generally no
defence O'Grady and R v Hatton. Consider s.3 CLA 1967, Criminal Justice and
Immigration Act 2008, s76. The new householder exception and grossly
disproportionate force. The defence of Self-Defence as exoneration. Proposals for
reform. Critique.
.
Question 2
Critical and rigorous discussion of attempt with reference to relevant case law. Actus
reus of Attempt s1 CAA 1981 “an act which is more than merely preparatory”- the
notion of a proximity test. Critical discussion of development/interpretation of this notion.
Analysis/critique of extensive caselaw. Gullefer , Jones , Campbell, Attorney-General's
Reference , Geddes , Tosti and White, Toothill, Nash . Impossibility issue– Shivpuri.
Stricter requirements where inchoate crime is on the threshold of substantive criminal
offences, although not committed, and why. Public safety and protection of society etc.
Critique of current position, lack of rationality in decisions, etc
Page 1 of 4
OUTLINE SOLUTIONS
LWM05 Criminal Law
Postgraduate Diploma in Law
May 2015
Question 3
A broad ranging problem question on homicide, causation, non fatal offences against
the person and the defence of intoxication.
T: Murder of C and D ? Elements and definition: unlawful killing with malice
aforethought. Query mens rea Moloney, Nedrick, Woollin. TRANSFERRED MALICE
Latimer ; If no MR for murder, consider constructive (UDA) manslaughter, Mitchell,
Church, Newbury & Jones – requirement for an unlawful act (an assault here), that is
objectively dangerous and causes the death(s).
CAUSATION: Factual causation, but for test, White. Legal causation. The culpable act
must be more than a minimal cause of the consequence - Pagett Smith Malcherek and
Steel Cheshire - must be an operating and substantial cause, or contribute
significantly to the (proscribed) result. The culpable act need be neither the sole nor the
main cause Benge. - T must take the victim (C) as he finds him -eg Hayward Blaue.Is
C’s ‘minor wound’ a substantial cause of his death? Do intervening events/acts amount
to a novus actus interveniens? Medical treatment of D- Jordan, Smith, Cheshire.
ATTEMPTED MURDER of G?: (CAA 1981 s.1(1)),s.4(3)). Gullefer . Mens rea: only
intention to kill will do: Mohan, Whybrow .
If no attempted murder of G, then at the very least, common assault (G is terrified)
Ireland, Logden v DPP.
DEFENCES: Voluntary self-induced intoxication is no defence to offences of "basic
intent", whereas it may be sufficient to negative intention for offences of "specific intent"
(murder here): D.P.P. v. Majewski, Sheehan and Moore, Lipman.
Defences vis a vis Derek: self defence? Criminal Justice and Immigration Act 2008, s76
Requirements for necessary and reasonable force, Owino Scarlett. Necessary element
is subjective- based on defendant’s perception (Gladstone Williams), but force must be
proportionate, Palmer otherwise defence fails Clegg. Unlikely to be viewed as
reasonable here. Pre-emptive strike permitted, Beckford.
Partial defence of Loss of Control, CJA 2009 s56. Qualifying Trigger has to be fear of
serious violence against self – query whether serious violence feared Dawes;
Requirement for reasonable person of same age and gender to react in same way
Zebedee– questionable here. Did T incite violence? Successful plea - murder reduced
to voluntary manslaughter
Page 2 of 4
OUTLINE SOLUTIONS
LWM05 Criminal Law
Postgraduate Diploma in Law
May 2015
Question 4
A broad ranging problem question on property offences, offences against the person
and the defence of duress.
Robbery: s.8, TA 1968. Theft with use of force Dawson. The force must be used at the
time of stealing and in order to do so. Hale, Vinall. Is robbery still ongoing at time of
violence? All 5 elements of theft (s1 TA1968) also need to be present Robinson
(unproblematic here) – so M also guilty of theft (appropriation, property, belonging to
another, dishonestly, with the intention to permanently deprive).
Burglary s9 TA 1968. M could be guilty of TA s.9(1)(a) or (b), or both. Enters a building
or part of building – staffroom – Walkington; Collins Brown Ryan. Must be as
trespasser, Collins. Consider mens rea re entry as a trespasser and with an ulterior
intention to steal (s.9 (1) (a)) or theft after entry (b).
Battery of elderly lady, Cole and Turner, Venna (subjective recklessness as MR).
Defence of DURESS. Nature of the Threat: Valderrama-Vega etc; Nexus - Threat and
Offence: Cole (so only possible crime applicable here is the robbery).Test for Duress subjective and objective elements. The Prosecution have the burden of proof to
disprove this defence. Graham, Martin, Howe, Bowen. Imminence of Threat:
Opportunities to Escape, Hasan. Query time gap between threat and robbery. Is the
defence of duress available in those circumstances where D has exposed
himself/herself to the risk of compulsion by joining gang? Unlikely: Sharp , Shepherd,
and crucially, Hasan.
Question 5
Wide ranging and discerning discussion of the offences against the person - the extent
to which they can be said to be antiquated and in need of reform. Critical consideration
of how the courts have been imaginative in their interpretation of provisions in order to
address this issue as well as consideration of any proposed reforms in this area.
Good use of relevant caselaw expected. Students should focus on the following: on
meaning of grievous, "GBH", D.P.P. v. Smith, Janjua, Choudury; on bodily harm (s47,
18 and 20) words alone (or silence) as an assault, Constanza, Ireland, and
psychological harm (as abh and gbh) Chan-Fook (s47), Burstow (s20); HIV infection as
biological gbh, Dica, Konzani; herpes infection as gbh Golding. What does "inflict" mean
(s20)? How may it occur? eg Martin. ‘Occasioning’ meaning causing, Roberts (s47).
What does ‘actual ’mean (s47)? Donovan, T v DPP. The mens rea element
"maliciously" – its interpretation as ‘recklessness’, Spratt, Savage & Parmenter, Venna,
Mowatt etc. In depth analysis expected.
Page 3 of 4
OUTLINE SOLUTIONS
LWM05 Criminal Law
Postgraduate Diploma in Law
May 2015
Question 6
A broad ranging problem question on sexual offences, and defences (intoxication and
insanity/automatism).
SEXUAL OFFENCES. Liability as to E: rape SOA 2003, s1. Definition. AR
unproblematic. The problem of consent, s1(1), s 1(2) ‘having regard to all the
circumstances’ - query the reasonableness of A’s belief in E’s consent. Does A’s
aggressive behaviour fall within s75? Ciccarelli. Also general definition of consent s74
– query whether E “agrees by choice"etc ie is it submission or consent? Olugboja,
Doyle. No requirement for positive dissent Larter.
s3 (sexual assault), Does E consent? Is stroking sexual? s.78, R v Price; R v H. If not
sexual assault, then at very least a battery, Cole v Turner etc.
Also, query shouting as common assault (is E frightened?) s39, CJA 1988. Ireland,
Logden etc
Liability as to S: rape? Do conclusive presumptions of s76 apply here? Consent and
impersonations: query if Beckham’s brother ‘known’ to S?.(unlikely). Was S deceived by
D's lies? Whilst they may be deceptive and persuasive do they go to the nature or
purpose of intercourse Jheeta Devonald R v B. Did S consent? Drunken consent is
still consent - or was S too drunk to remember if she consented? Dougal, Bree,
Tambedou.
Defences: Intoxication/mistake – Majewski, voluntary intoxication only defence to
specific intent crimes where D so drunk as to be unable to form MR, Sheehan and
Moore. An alcohol fuelled mistake about consent - no defence: Fotheringham. Is A’s
belief that S is consenting a reasonable belief? Insanity: cerebral tumour. M’Naghten
rules. Requirement for internal disorder - disease of the mind Sullivan, Kemp; defect of
reason Clark; not knowing nature/quality of act or that it was wrong Windle. Better
students may refer to CA in Charlson - erroneously treated tumour as automatism.
Page 4 of 4