LW104 CRIMINAL LAW 2000-01

The good news is that no one is doing too badly for Term 1. You all read the question and tried to answer it. Now how can you increase your marks?

The following are common mistakes (Sort it!)

Not stating the crime. Students launched into mens rea or actus reus or would talk about serious harm etc, but the actual crimes are not being identified. For instance, T intended to get rid of M and she removed a manhole cover knowing he would fall into it and hoping that she had got rid of him, M sustains a broken arm. Students should have gone straight to the law of assaults. Given the extent of the injury students should begin with s.47 OAPA 1861, which is an assault occasioning actual bodily harm. State that the section requires assault or battery to be established. The requirement of battery i.e. the actus reus and mens rea. Is relevant on these facts. Once stated students should see whether the requirements for s.47 are satisfied on the facts i.e. is there a relevant actus reus (hostile touching Collins), an indirect battery will do Martin, T did not touch M directly. Then consider whether T had the mens rea i.e. intention or recklessness Savage and Parmenter. Students could also pick up points by briefly stating why they would or would not consider ss.20 and 18 OAPA.

Discussing the mens rea of a crime without discussing the actus reus and visa versa. Students must consider the actus reus and the mens rea of each crime they think may be relevant.

Conflating the victims. Students assumed that because an accused caused harm to more than one victim, they should discuss the victims at the same time. No. The point of writing the problem in this way is to get you to untangle the web. In order to do that you must treat the victims separately. Where victims are linked such as in the case of transferred malice then make it clear that this is the issue and discuss it clearly.

A cardinal rule you must all observe is that you do not repeat facts. It is a waste of time to write the facts again. It is better to use that time thinking about how to answer the question.

Repeating facts of cases. Unless it is, absolutely, relevant to the question in issue, do not repeat facts of cases. What you need to repeat and apply are the legal principles of the cases.

Forcing the legal principle to fit the facts. A big no no! Your job is to apply the legal principles to the facts and, where there is doubt as to its application, please state this - shows you are thinking on your feet.

State your sources of law. If you are relying on a case or a statutory provision please state it. All cases should be considered, but it is detrimental to your answer if you do not know the basic cases - easy points to pick up.

Lastly, please watch your language. Do not write the way you speak!

Comments from another tutor

CONSIDERATION OF PROBLEM QUESTION

Knuckles is the karate champion for Great Britain. He was due to fight to retain his title but has come up against protesters. He recently had some bad publicity because it was leaked to the press that he was suspected of downloading pornographic material from the Internet. He has also been released on bail pending an investigation into the allegation by Harriet of date rape.

Harriet belongs to a group called 'People Against Sex Offenders' (PAXO). Various members of the group - Keita, Sam and Mohammed agree that they should lobby as many people as possible to give maximum negative publicity about Knuckles, with the aim that promoters would pull out of sponsoring the karate championship. Mohammed agreed to spy on Knuckles and feed back information to PAXO.

Mohammed followed Knuckles on several occasions. Much to the annoyance of Knuckles and his bodyguards. Mohammed would hurl abuse at Knuckles until the guards chased him off. Knuckles laughed it off. However, Tamari, one of the bodyguards, thought that if she could stop Mohammed from pestering Knuckles she would become top guard. Tamari left a manhole cover open knowing that Mohammed would not see the opening and fall into a 50-foot hole. Mohammed fell down the hole and lay unconscious. Later, Sinead, a child playing nearby in the park, also fell down the hole. Although Mohammed and Sinead were rescued Sinead, an asthmatic, died on her way to hospital. Mohammed received a broken arm caused by the fall.

Tamari told Knuckles how she had 'got rid' of Mohammed. Far from being pleased Knuckles sacked her. Tamari, a Jamaican, called Knuckles an ignorant, sex-starved English bulldog. Incensed Knuckles aimed a karate kick in Tamari's direction. He did not intend to hit her but ended up doing so which sent Tamari flying across the room. She fell against Myrtle, the hotel maid, who had just entered the room to make the bed. Myrtle, who was deaf, and did not realise that when she knocked on the door she had not been told to come in. Knuckles, thinking Myrtle was dead, put her body in a bath full of water to make it look as though she had slipped into the bath whilst cleaning it. Myrtle was pronounced brain stem dead. Doctors decided not to treat her and she died.

Discuss the criminal liabilities of the parties.

CONSPIRACY AND PARTIES (5 marks)

Conspiracy requires an agreement to commit an offence, s.1 (1) Criminal Attempts Act 1977, with another human conspirator McDonell. When members of PAXO agree to create negative publicity for Knuckles, there is an agreement but it unclear that the agreement is to commit a crime.

There is insufficient evidence of 'joint enterprise' because Mohammed (M) appears to be acting outside the scope of the agreement, one that does not appear to amount to a crime in any event.

HARASSMENT (5 marks)

Criminal harassment is covered in the Protection from Harassment Act 1997 (PHA). S. 1(1) provides that the offence of criminal harassment is created if a person pursues a course of conduct (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other. By s. 7(4) 'conduct' includes speech. The course of conduct must occur on at least two occasions s.7 (3).

Clearly hurling abuse at Knuckles on several occasions could amount to harassment, and M's knows or ought to know that it would. The question is whether M's conduct amounts to alarming Knuckles (K) or causing him distress (s, 7(2))? - K 'laughs it off' indicating that he is not distressed by M's behaviour. Since no 'harm' appears to have been caused to the intended victim, it is unlikely that M would be charged with an offence under the PHA.

COMMON ASSAULT (5 marks)

For the offence of common assault, the victim must apprehend Smith the immediate application of unlawful force to his or her person. When M is chased off by the guards, it could be argued that he apprehended the immediate application of force since he has only to be put in fear of a battery. The question is whether the action of the guards was unlawful. s.3(1) Criminal Law Act 1967 provides that a person may use reasonable force to prevent a crime. They could argue that they were acting in self- defence to prevent the harassment, although it is not clear that the crime of statutory harassment has been committed.

ASSAULT - S.47 OFFENCES AGAINST THE PERSON ACT 1861 (10 marks)

For an assault where a broken arm results the law requires that the actus reus and mens rea of assault must be proved as well as the aggravating factor - actual bodily harm (s.47 OAPA). A battery is the unlawful application of force against a victim Collins, which is generally hostile Wilson, (cf. F v West Berkshire Health Authority). Although T has not applied unlawful force directly to M, force can be applied indirectly Martin - the defendant put out the lights in a theatre and barred the exit with the intention of causing panic and fear, several members of the audience fell and were injured. The men rea of battery is an intention to apply unlawful force or subjective recklessness Savage, Parmenter. T clearly intended a battery to M. S.47 applies because there has been actual bodily harm. This means any hurt or injury calculated to interfere with the health or comfort of the victim Miller. M sustained a broken arm; this seems to satisfy the requirements of the section.

 MURDER CONSTRUCTIVE MANSLAUGHTER OR GROSS NEGLICENCE MANSLAUGHTER BY OMISSION (20 marks)

Murder requires an unlawful killing of a person in being under the king's peace with malice aforethought, malice aforethought requires an intention to kill or cause serious bodily harm, death resulting. On these facts S is unlawfully killed. The question is whether T has the intention, and if so whether that intention can be transferred from the intended victim to S? T intends to cause serious harm to M but her conduct also causes harm to S. It is possible to transfer the intention from M to S Saunders and Archer, but in that case the intention was transferred because there was a mistake as to the victim. In this case there is no mistake as far as M was concerned. M has been injured but S has been killed. In A-G Ref (No. e of 1994) Lord Mustill said, that in such a case the malice is not transferred, rather a new malice is created, one that was not there to start with. It would be difficult in this case to talk about transferred malice.

The requirements for Constructive manslaughter are satisfied when the defendant performs an unlawful and dangerous act likely to cause physical harm and death results. The unlawful act must be criminal in nature Andrews, and the actus reus and mens rea of the act must be identified Lamb. One difficulty with T's conduct is whether it could be construed as an unlawful act? What is the offence? Removing a manhole cover is not of itself a crime - although it may be a breach of civil law. However, there is the authority of Newbury. In that case the court held the defendants criminally responsible for the death of a guard. This occurred where the defendants pushed a paving stone over a bridge and the stone hit a passing train. On this authority it might be argued that, as the court held in Newbury, there is was an intention to do acts which constitute the crime.

The unlawful act must also be dangerous, i.e., such that all sober and reasonable people would inevitably recognise must subject the person to, at least, the risk of some harm resulting therefrom, albeit not serious harm Church. The harm that the reasonable man must foresee is physical harm. It could be argued that the removal of the manhole cover might subject the victim to some harm and that a reasonable person could foresee this. However, T's conduct was not aimed at S. S is an unintended victim? Must T be responsible for all the consequences that arise from her conduct? In A-G Ref (No 3 of 1994) the House of Lords held that the defendant must accept all the consequences of his act so long as he did what he did intentionally, that it was unlawful and dangerous. Clearly T intended to remove the manhole cover in order to cause harm to M. Given the authority of A-G Ref (No 3 of 1994) there is no reason why she should not be held responsible for the death of S.

Another way of dealing with T's conduct is to treat this as Gross Negligence manslaughter by omission. The requirements are that there is a duty of care by the accused towards the victim, the accused is in breach of that duty, there is a causal link between the breach and the harm and that the breach was so bad as to be grossly negligent Adomako.

It is submitted that by removing the manhole cover T was responsible for creating a danger - which is a common law duty - Miller. T owed a duty to S to replace the cover, by not doing so she is in breach of her duty, there is a causal link between the breach and the death of S. The difficulty here is to establish that her breach was so bad as to be grossly negligent.

 CAUSATION AND BLAUE (5 marks)

Regarding S's asthma, the courts would expect the accused to take the victim as she finds her - the egg shell-skull rule Blaue. The fact that S was an asthmatic is unlikely to break the chain of causation between T's conduct and the death of S.

ASSAULT S. 47 OAPA (10 marks)

S. 47 requires an assault occasioning actual bodily harm. The assault would satisfy the requirements of the actus reus of battery - which is the unlawful application of force Collins, and that the application of force is hostile Wilson. It is clear from the facts that Knuckles (K) committed a battery, the question is whether he had the requisite mens rea? The men rea is that the accused should either have intended or foreseen that the unlawful act might cause some physical harm to some person, albeit of a minor character, might result Savage, Parmenter. Since K did not intend to hit T it is unlikely that he has the mens rea for intention, arguably he should have foreseen that his unlawful act might cause some physical harm to T, even if he considered the risk and then when on to take it Shimen. Thus the elements of battery are satisfied. For a s.47 offence, the battery must amount to actual bodily harm. Although we are not told what harm T has suffered, it is likely that when K kicked her across the room the force of the kick caused her bruising.

MURDER/ TRANSFERRED MALICE/ CONSTRUCTIVE MANSLAUGHTER (20 marks)

Murder requires the unlawful killing of a person in being, under the King's peace, with malice aforethought. On these facts the actus reus of murder has been satisfied, Myrtle (M) has been unlawfully killed. The question is whether K had the requisite intention? The mens rea for murder is satisfied where either K had specific intent to kill or cause harm, death resulting or, if the defendant realised that death or serious harm would be virtually certain (barring some unforeseen event) to result from his voluntary act, then it is a fact from which the jury may infer intention Nedrick, Woolin.

On these facts it is unlikely that intention has been satisfied. K had no intention to kill or cause serious harm in either sense of the meaning of intention in law. Given that he did not have the required intention, the fact that he was provoked into reaction by a racial taunt is irrelevant (although it may have some bearing on sentencing). If there were sufficient intention in at least the Nedrick, Woolin sense then we would have to consider provocation as a partial defence to a charge of murder.

If K had the required intention for murder the question of transferred malice would arise. The person killed was not T but M. Can the malice be transferred from T to M? There are cases that malice directed at the intended victim can be transferred to the actual victim Saunders and Archer, but the doctrine was questioned in A-G Ref (No. 3 of 1994). The difficulty is that there is no malice to transfer. We have already said that K did not have the mens rea for murder, the relevant mens rea for battery, on these facts, is subjective recklessness, Savage, Parmenter.

K may be held responsible for M's death under the law of constructive manslaughter. Constructive manslaughter requires an unlawful act (battery of K on T) which is also dangerous - such that all sober and reasonable people would inevitably recognise would subject the person to, at least the risk of some harm resulting therefrom, albeit not serious harm Church. It could be argued that when K aimed a karate kick at T he did subject her to the risk of some harm, it is harder to argue that he also subjected M to some harm. However, an indirect battery Martin would bring K's conduct within

CONCURRENCE. CAUSATION AND BLAND (10 marks)

The mens rea and actus reus of a crime must coincide in law or in time. On the facts, the actus reus of manslaughter occurs after the mens rea. In such a case the court treats the conduct of the accused as a 'series of transactions' Thabo Meli. The fact that M was deaf is irrelevant since K has to take the victim as he finds her Blaue.

CONGRATULATE YOURSELVES ON A JOB WELL DONE. MOST OF YOU DID REASONABLY WELL AND SEEMED TO GET THE GENERAL DRIFT OF THINGS. BELOW IS A SUMMARY OF COMMON MISTAKES AND SOME POINTERS TO ANSWERING THE QUESTION

Lack of structure. Be careful in the way material is organised the KISS rule is a good way of thinking about organising you answer - 'Keep It Simple Stupid'.

Do not use a draft criminal code as an answer to a legal problem. Since it is not law it has no bearing on determining the extent of a person's criminal liability.

Do not state a case unless it has some relevance - no matter how brief, state what the case stands for - do not expect the reader to guess.

Most people have got the idea of ILAC but are not consistent in their approach. Think of the reader! Starting off well and then running out of steam midway is a killer if you give the impression of a 'white knuckle ride' so, be consistent throughout your paper. If you get started, stop, have a break and come back to it later. It was in the area of 'Gross Negligence manslaughter' that most people seemed to run out of steam.

For some reason the mens rea of a crime was not linked to the actus reus of the crime. Guilty minds are not enough under English law. You must state the actus reus and mens rea of the offence at the minimum.

Please put cases into the body of the text rather than footnotes.

 ON WHAT BASIS CAN THE CROWN ARGUE THAT THE PRISON OFFICIALS COMMITTED AN ACTUS REUS?

The essential elements of a criminal offence are the actus reus, conduct element, and the mens rea, mental element. The Crown could argue that the prison officials committed an actus reus, in relation to the old man by considering a crime of commission by omission.

A court might impose a duty to act as an implied term in a contract of employment Pitwood, or decide that there is a misconduct of office Dytham. The officers have contracts of employment which contain express or implied terms that hold them responsible for the behaviour of prisoners in their care. They may be held criminally liable for failure to perform their contract by allowing Lionel to 'escape' and cause harm. Conversely, it may be stretching an implied term too far to say that the officers are responsible for everything that Lionel does when he escapes.

Professional carers can incur a duty to care for a third party. In Bland Lord Keith said, 'Where one individual has assumed responsibility for the care of another who cannot look after himself or herself, whether as a medical practitioner of otherwise, that responsibility cannot lawfully be shed unless arrangements are made for the responsibility to be taken over by someone else.' It could be argued that on this basis the officers are criminally responsible for Lionel. What militates against the imposition of a duty under this limb is that in Bland the duty was to the person in care and not to 'strangers'. The old man is a stranger. 

The questions is whether a persons actions or inactions are responsible for creating a peril? In Miller the House of Lords held that when a person becomes aware that he has done a physical act which, whether or not he appreciated that it would cause damage at the time when he did it, does in fact create a risk that property of another would be damaged, provided that, at the moment of awareness, it lies within his power to take steps prevent or minimise the damage, he is under a duty. The officers took Lionel out into the community knowing he had a criminal record, it could be argued, that in so doing they created a danger and were under a duty to minimise it. On that basis they could be held responsible for the old man's death.

Mens rea is the term which refers to the mental element of a crime. It cannot be dealt with in the abstract and must attach itself to a specific crime. On these facts we are looking at a murder charge. The mens rea of murder requires malice aforethought - intention. Intention means either that the accused intended to cause death or serious injury to the deceased, or that it was 'virtually certain' that in pursuing a course of conduct, death or serious bodily harm would result Nedrick, Woolin. The facts do not suggest that the officers had the mens rea for murder.

 DID THEIR ACTS CAUSE THE OLD MANS DEATH?

Here the criminal law is concerned with moral blameworthiness. The test devised is the test of causation. To hold the officers responsible one must be able to say 'but for' their inaction, the death would not have resulted. It could be argued that but for the failure to supervise Lionel at the time he injured the old man, the old man would not have died, therefore there is sine qua non causation Hensler - necessary but not sufficient. The related question is whether the officers' inaction should be deemed the legal cause of the old man's death. It could be argued that the failure of Vett to adequately help the old man is a novus actus interveniens, the second omission preventing the officers conviction. To be effective such an argument must pass the tests laid down in cases like Jordan where the intervention of a third party is 'palpably wrong', in any event the courts are reluctant to hold rescuers criminally liable.