LWM05 SOLUTIONS Criminal Law 2013

Postgraduate Diploma in Law/CPE
Outline Solutions, 13 June 2014
Question 1
In-depth critical analysis of the common law relating to the defence of intoxication.
Intoxication as the ingesting of intoxicants Lipman. Distinction between crime of
specific or basic intent. Defence available for former only if unable to form the mens
rea for the crime charged Sheehan and Moore, DPP v Beard, DPP v Majewski,
Rowbotham. The limits of the defence re-stated in Lee Heard. Where intoxication
was caused by alcohol or illicit drugs, defence unavailable DPP v Majewski, where
caused by misuse of medication, defence available if no mens rea formed for the
crime charged. Key question, whether reckless behaviour by D Hardie; Bailey;
Lipman. R v C : R v McGhee : R v Harris.
Intoxicated mistake as a defence if it is one that might equally have been made by a
sober person, and is therefore reasonable as well as honest.O'Grady, Hatton.
Discerning analysis expected, with focus on inconsistencies in judicial decisions,
problem areas, and need for reform.
Question 2
In-depth critical analysis of the common law on murder and constructive (UDA)
manslaughter, with particular focus on defects which exist.
Murder analysis should focus on the concept of mens rea. Intention as purpose/ aim/
goal; direct/ oblique intention; probability / virtual certainty- in particular, Moloney
Nedrick, Woollin, Stringer.
Unlawful and Dangerous Act manslaughter – discussion and critique thereof.
Elements Mitchell, Lamb, Goodfellow etc and on ’dangerous’ D.P.P. v. Newbury,
Larkin, Church etc. Problem areas – ‘dangerousness’ (potential for clash with thin
skull rule) – Watson, Dawson - causation issues Kennedy, Carey. Recent
developments in case law, R. v M; Bristow, Bristow, Dunn & Delay.
Proposals for reform. Wide and discerning discussion expected.
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LWM05 Criminal Law
Postgraduate Diploma in Law
June 2014
Question 3
This is to enable wide and discerning discussion of the law on sexual offences.
Detailed discussion of caselaw, and critical evaluation of the situation which exists
Rape, s1. Focus on those elements of rape which are substantially changed by 2003
Act, the AR and in particular, the mens rea (esp Morgan). The problem of definition
of consent, s1(1), s 1(2) Reasonable belief in consent - ‘having regard to all the
circumstances’, objective standard, Braham, Fotheringham. The specific provisions
on consent - defined in s.74 – Olugboja, Doyle; the irrebuttable and rebuttable
presumptions, s75-76, Ciccarelli; Justine Mcnally.
s1 SOA 2003 –– meaning of deception as to ‘nature and purpose’ of act- Flattery,
Williams;s.76 - Jheeta, R v B. Bree, Dougal – the problem of drunken consent, and
apparent consent, R v C.
S2 (assault by penetration), deception as to gender Justine Mcnally
S3 Sexual assault: The problem of consent, s1(1), s 1(2) s.78, on the definition of
‘sexual’ Price; Court; R v H .
Analysis of new legislation and vigorous critique thereof. Good use of examples from
caselaw expected.
Question 4
A broad ranging problem question on voluntary manslaughter, offences against the
person, causation and defences.
N’s liability for death of J. Murder – elements. MR present –– N intends to cause
gbh, Moloney. Consider voluntary manslaughter. Loss of control CJA 2009, s54,
requirement for loss of control and trigger, problem of sexual infidelity as trigger s55
R. v Clinton; reasonable man requirement R v Dawes; R v Hatter; R v Bowyer.
Transferred malice –Latimer.
Causation: factual White; legal, the culpable act must be more than a minimal cause
of the consequence - Malcherek and Steel, Pagett, an operative and substantial
cause, but need be neither the sole nor the main cause Benge. Re allergy, N must
take the victim (J) as she finds her – Hayward, Blaue. Do intervening events - poor
medical treatment - amount to a novus actus interveniens? - Jordan, Smith Cheshire
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LWM05 Criminal Law
Postgraduate Diploma in Law
June 2014
Phone calls to D- Assault? Offences Against the Person Act 1861: Discussion or AR
and MR of relevant sections. Words alone (or silence) as an assault, Constanza,
Ireland (s47), Burstow (s20). Are D’s symptoms sufficient? Chan-Fook.
Automatism as a defence. External trigger (insulin & Cola). Consider authorities –
Quick, Charlson, Bailey and Hardie etc to illustrate operation. Self-induced
automatism no defence - Crucial with non-insane automatism that there is no prior
fault- lack of recklessness as requirement.
Question 5
A broad ranging problem question on property offences, offences against the person,
attempts and defences.
Taking petty cash. Burglary, TA 68 s9, elements, query whether AR and MR present
- trespasser, Collins, Jones and Smith etc. Query whether the counter is ‘part of
building’ -Walkington. Theft as an essential element of burglary offence here, so
discussion of definition of theft, TA 68, s1 - elements, dishonesty, s2, Ghosh test, s3,
Attempted murder or gbh, s1 CAA 1981 “an act which is more than merely
preparatory” Gullefer , Jones , Campbell, Geddes; mens rea for attempt, Whybrow
(query whether intention to kill).
Duress as a defence – Query the nature of the Threat: Singh, Valderrama-Vega;
Query Nexus - Threat and Offence: Cole. No nominated offence here. Test for
Duress - subjective and objective elements. Graham, Bowen. Unlikely to succeed.
Not available to murder, Howe.
Common assault of manager? apprehension of immediate harm? Logdon
Breaking jaw as abh s47 or gbh s20 or18 OAPA 1861. On ABH, Donovan, Ireland,
Venna. On "GBH", D.P.P. v. Smith, Brown and Stratton, Ismail. On s20 "maliciously"
Mowatt, Savage and Parmenter, Wilson. On the Specific Ulterior Intent for s18,
Mistake as to self defence. Mistake permitted if genuine: Williams (Gladstone). Even
if proactive (Beckford, Bird) but no allowance for unreasonable/ disproportionate
force being used Clegg, Martin, Dewar. Criminal Justice and Immigration Act 2008,
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LWM05 Criminal Law
Postgraduate Diploma in Law
June 2014
Question 6
In-depth critical analysis of the common law and omissions. Generally, the failure to
act, "negative actions"/ omission does not give rise to criminal liability. Consideration
of common law imposition of liability for omission in certain exceptional situations,
usually where a duty is involved. Rigorous discussion of exceptions + examples
taken from extensive caselaw, with a particular focus on recent developments and
Tortious Duty- a special relationship is implicated or a responsibility assumed.
Gibbins and Proctor; Stone and Dobinson, Barrass, Hood, Airedale NHS Trust v.
Bland, Khan and Khan, Ruffell ;
Contractual Duty Pittwood;
Public Duty Dytham Cosford.;
Creation of a Dangerous Situation Miller, Evans ;
Statutory Duty , eg RTA 1988, s.36 and s.170 and CYPA 1933, s.1
Critique, arguments both for and against retaining current approach.
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