Criminal Law Semester 2 Tutorials

7/28/2019 Criminal Law Semester 2 Tutorials

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Criminal Law 2010-11

Tutorial 10

Substantive defences

In this tutorial we consider the substantive defences of duress, necessity and the useof force in private or public defence.

Preparation for, and participation in, this tutorial should equip you with:

1) a knowledge of the requirements for establishing the defences of duress,necessity and the use of force in private or public defence

2) an ability to critically assess the present law and evaluate some proposals forreform

3) an ability to apply the law to a hypothetical set of facts to determine whetherthe defences of duress, necessity or the use of force in private or publicdefence can be established

Essential Reading

Herring, Criminal Law: Text, Cases and Materials, (4rd ed.) relevant sections

of Defences chapter.

R v Hasan [2005] UKHL 22, [2005] 2 WLR 709

The Law Commission, Murder, Manslaughter, Infanticide, Report No. 304,2006, pp 111 144. (available http://www.lawcom.gov.uk/docs/lc304.pdf)

Criminal Justice and Immigration Act 2008, section 76.

Further Reading

Leverick, Is English Self-defence Law Incompatible with Article 2 of the

ECHR?, [2002] CrimLR347

Smith The Use of Force in Public or Private Defence and Article 2, [2002]

CrimLR 958

Leverick, The Use of Force in Public or Private Defence and Article 2: A reply

to Professor Sir John Smith [2002] CrimLR 963

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Discussion Questions

1) What is the difference between a justification and an excuse? Does duress havean excusatory or justificatory rationale? What about necessity? What about useof force in public/private defence? Does it matter?

2) What is meant by a substantive defence (as opposed to a failure of proof

defence)?

3) Should duress be a defence to murder? What view did the Law Commission takein its report Murder, Manslaughter, Infanticide? Do you agree?

4) Should a defendant who honestly, but mistakenly, believes that unless hecommits the crime he will be killed or seriously injured be able to rely on thedefence of duress by threats or should the law require that his belief be based onreasonable grounds? What view did the Law Commission take in its report Murder, Manslaughter, Infanticide? Do you agree?

5) In Hasan Lord Bingham observed that because of the unique difficultiesassociated with investigating and disproving the defence of duress, where policychoices had to be made in the context of the defence, he was inclined towardstightening the defence rather than relaxing it. In what ways could it be said thatLord Bingham endeavours to tighten the defence in this case?

6) (a) Dario is a former cocaine addict. Abuse of the drug over many years hasrendered him an unusually paranoid and vulnerable individual. He owesGareth a large sum of money. Gareth has become impatient for repaymentand sends his small nine year old son Timmy round to Darios house to askfor it back. Timmy requests that Dario give him the money there and then,

adding in a squeaky voice, that he does not mind how he obtains it and,steal it if you have to. Dario has for a while, and without foundation, beenconvinced that Gareth is out to kill him. Terrified, he takes some money froma secret stash belonging to his flatmate and gives it to Timmy.

Would Dario have a substantive defence to a charge of theft?

(b) Dario has not in fact given Timmy sufficient money to meet the debt owed toGareth. Gareth is angry. He telephones Dario and says he is coming roundto sort it out. Dario is too scared to move. Minutes later the door bell rings,Dario, terrified, grabs his flatmates shotgun and fires at the door. Sam, thepostman, is killed.

Would Dario be convicted of murder?

8) Jason is a shy, timid and lonely teenager who is desperate for some popularity.He becomes involved with a gang of local youths well known for their anti-socialbehaviour. As part of an initiation into the group the other boys demand that hecarry out a series of acts of minor vandalism and petty theft. Jason, scared ofwhat they might do to him if he refuses, carries out these offences. One day theboys set him his final task to rob an elderly lady. Jason says that he wont hurtanyone, but the boys insist he carry out the offence or they will cause him someserious damage. Jason pushes over Mary, a frail old lady, and steals herhandbag.

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Would Jason have a substantive defence: (a) to the series of acts of vandalismand theft (b) to the robbery?

9) Derek and his son Terence are on a luxury cruise with twenty otherpassengers. One night disaster strikes, and the cruise boat sinks. There isonly one lifeboat, which will sink if it has more than sixteen people on board.In the chaos Derek is separated from Terence. Derek climbs on board the lifeboat. He sees Terence in the distance, struggling to stay above water. Derekis a poor swimmer and so pleads with the other passengers on the life boat tosave his son. They all refuse. A few minutes later an obese man namedVincent tries to climb onto the lifeboat. Derek, who has not realised that thereare already sixteen people on board, begins to help pull him out of the water.The lifeboat begins to sink and so, with encouragement of the otherpassengers, Derek pushes Vincent back into the water. Terence and Vincentare never seen again.

Discuss Dereks criminal liability, if any

10) Ian Dennis in his July 2008 editorial in the Criminal Law Review describes s. 76of the Criminal Justice and Immigration Act 2008 as a pointless exercise. Do youagree?


Tutorial 11

Automatism and Intoxication

In this tutorial we consider defences relating to the mental condition of defendants(with the exception of diminished responsibility which we covered under the law ofhomicide). The defences are non-insane automatism, insane-automatism andintoxication.

The response of the law to a defendants lack of (or impaired) capacity for rationalchoice is crucially dependent on the cause of that incapacity:

(1) If the cause is an external one (such as a blow to the head) then the lawprovides a complete and general (i.e. to all crimes) defence known as non-insane automatism.

(2) If the cause is internal to the defendant (such as mental illness) a defence ofinsane-automatism (more commonly called the insanity defence) may beavailable but this is a special not guilty verdict which permits the court toorder coercive measures to be taken against the individual (such as indefinitedetention in a special hospital).

(3) If the cause is self-induced (most commonly alcohol or drugs) the defendantwill be convicted of basic intent crimes despite absence of mens rea. In thesecases a doctrine of prior fault operates.


1) Knowledge and understanding of the defences of sane and insane

automatism and intoxication; and2) An ability to apply the law to a hypothetical set of facts to determine whetherany of the mental condition defences may be successfully relied upon

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Essential Reading

Herring, Criminal Law: Text, Cases and Materials (4 th ed), relevant sections of

Defences chapter.

DPP v. Majewski [1977] A.C. 443 (House of Lords) (particularly from page469 onwards)

R v. Heard [2007] EWCA Crim 125

R v. Kingston [1994] 3 All ER 353, (House of Lords)

A.P. Simester Intoxication is never a defence, [2009] Crim LR, 3.

(1) Give the meaning, and provide examples of offences involving:(a) 'specific intent,';(b) 'basic intent.'

What is the significance of the distinction?

(2) Is it logicalthat an individual who through voluntary intoxication does not formthe requisite mens rea necessary for a specific intent offence can be acquitted, whilstan individual who through voluntary intoxication does not form the requisite mens reafor a basic intent offence would be convicted? What is Lord Salmons answer to thisquestion (see p. 482 ofMajewski)?

(3)

Consider the following scenarios. Explain whether Dan is criminally liable in eachcase:

a) Dan drinks ten pints of beer after work. Vera accidentally knocks over hiseleventh pint. Dan pushes Vera so hard against a glass door that she crashesthrough it and suffers very nasty facial injuries.

b) Dan attends a party. He asks whether the fruit punch is alcoholic. He isincorrectly told that it is alcohol free. He drinks a large quantity of the punch andgets very drunk. When Vera accidentally bumps into him, Dan reacts bypushing her down the stairs. Vera is badly injured.

(4)

Rick and Neil attend a concert by the rock group The Pitchdark. When Rick was

younger he found it impossible to resist the thrill of getting up on stage and diving intothe crowd at such events. In recent years Rick, having put on a bit of weight, hascontrolled his impulse to stage dive, frightened that he might hurt someone.

At the concert Neil gets increasingly frustrated by Ricks insistence that they admirethe bands performance quietly from their seats at the back of the hall. Neil takessome amphetamine and also slips some into Ricks soft drink. Soon thereafter Neiland Rick push their way to the front of the crowd and begin to dance frenetically.Neils dancing becomes so manic that he elbows Katie, another concert goer in theface breaking her nose.

Meanwhile, Rick has made his way onto the stage and Neil watches as he appears

to leap towards a large man in the crowd below. Unfortunately, however, he missesthe man and lands squarely on top of Debbie, a small teenage girl, who is knocked to

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the ground. She is then crushed to death by a surge forward in the crowd. Thesecurity staff could not rescue her because Graham, the concert promoter, hadallowed too many people into the show.

Discuss the criminal liability, if any, of the people involved.(from the criminal law exam, May 2004)

(5) How have the courts distinguished between cases of sane and non-insaneautomatism? Are the distinctions drawn just?

[N.B. To answer this question you will need to be familiar with the decisions in: Quick([1973] QB 910 CA; Hennessy([1989] 2 All ER 9 CA)? ; Sullivan ([1984] 1 AC 156HL); Burgess ([1991] 2 QB 92 CA) ; and R v T([1990] Crim LR 256 Crown Ct)]

(6) Below is an example of an essay question on the subject of intoxication from aprevious year. Think about how you would set about answering this questionand produce an essay plan.

The law of intoxication, as a defence to criminal liability, lacks intellectual coherenceand allows too many people to avoid responsibility for their choices.

Discuss


Tutorial 12

TheftIntroduction

In this tutorial we will consider the law of theft, handling stolen goods and robbery


1) a knowledge of the requirements for establishing the offence of theft, handlingand robbery

2) a knowledge and critical understanding of the key cases on the concept ofappropriation

3) a critical appreciation of the challenge of directing a jury in accordance withthe decision in Ghosh

Essential Reading

R v Gomez[1993] AC 442

R v Hinks [2001] 1 Cr App R 252

R v Ghosh [1982] 2 All ER 689

Herring, Criminal Law: Text, Cases and Materials (4th ed.), chapter 8.


(1) In all three ofLawrence, Gomezand Hinks the appropriation took place with theconsent of the owner. How was the consent that the owner gave in Lawrence

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and Gomez different from the consent given in Hinks ([2001] 2 AC 241 HoL)?According to the House of Lords in Hinks does this make any difference as towhether there has been an appropriation?

(2) You tell me that you left your wallet at home (which is true), and ask me to lendyou 5.00. I give you a five pound note. You put it in your pocket. In terms of S.1 Theft Act 1968, have you appropriated it?

(3) Analyse the following imaginary directions to a jury. Indicate which, if any, conflictwith the law laid down in Ghosh.

(a) In deciding whether the defendant thought his acts were dishonest you may askyourself whether you, in those circumstances, would have thought them dishonest. Ifyou would, then he was dishonest.

(b) In deciding whether the defendant thought her acts were dishonest you may askyourself whether you, in those circumstances, would have thought them to be

dishonest. If you would, then you may wonder whether she is telling the truth abouther beliefs.

(c) It is your decision, not mine, not the defendants; do you believe the defendantbelieved his acts were not dishonest?

(d) The rationale for a jury is to adopt community standards. Therefore if you thinkthat this behaviour was dishonest then he is dishonest. If you do not then you muststill ask if the defendant so thought. If she did she is dishonest.

(e) You may, like me, Members of the jury, find the Defendants story incredible. Butif you believe the Defendant believed it then he is entitled to be acquitted. But you

should consider how reasonable it is to believe that he believed it.

(4) Would the characters in the following scenarios be regarded as dishonest underthe Theft Act?

(a) One day David takes some paper and coloured pens from the office in which heworks to give to his small children to draw with. He claims it is a perfectly normalthing to do and that all his colleagues take things from the office.

(b) Viv is a human rights activist. She finds out that company based in her town isselling guns to a state known to be committing genocide. She arranges a break in tothe companys warehouse, takes the guns and melts them down. She says that no

one knowing the facts of what these guns would be used for could possibly regardher actions as dishonest.

(c) Sam, a solicitor, has some cash flow difficulties and takes money from the specialaccount where his clients money is held. Sam knows that he is forbidden to do this,but he intends to repay the money when a big cheque he is due comes through acouple of days later.

(5) I am at work and realise Ive forgotten my packed lunch and have no money onme. So I borrow 5 from the safe, and during my lunch hour go to the chip shop,have lunch, go home, collect 5, and place it back in the safe in the afternoon. Did Ihave an intention to permanently deprive? (See Velumyl[1989] Crim LR 299 CoA).Have I committed theft?

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(6) Imagine that you were the prosecutor in the Oxford v Moss case [1979] Crim LR119 QB. Can you build a case alleging that the student committed theft of the pieceof paper the exam was printed on?

(7) Bob decides to steal a can of baked beans from Tescos. He goes to his localbranch, walks into the store, walks to the aisle containing baked beans, and puts thecan into his shopping basket. Before he gets a chance to turn round and walktowards the door, a store detective accosts him and accuses him of stealing the tin ofbeans.

Has Bob committed theft?

(8) Tom sees Jims painting, and thinks it is a Constable worth hundreds ofthousands of pounds. So he offers Jim 100,000 for it. Jim realises that Tom hasmistaken the painting for a Constable, when in fact it was painted by his sister! It isonly worth 100. Jim immediately accepts Toms offer. An enforceable contract isthus made. The next day Jim is arrested for theft of the 100,000.

Has Jim committed theft?

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Tutorial 13

Property Offences

Following on from our tutorial on theft last week we complete our study of theproperty offences by looking, in particular, at offences created by the new Fraud Act2006.

We will also develop understanding of the property offences in general and work onskills of problem analysis through attempting a number of problem style questionsbased on previous exam papers.

Essential Reading:

Herring, Criminal Law: Text, Cases and Materials (4th ed.), chapters 9, 10 &

11.

Fraud Act 2006, sections 1,2,3,4,5 and 11

David Ormerod The Fraud Act 2006 Criminalising Lying, 2007 Criminal

Law Review, March, 193-219


(1) Why was it thought necessary to introduce the new offence of Fraud?

(2) The offences created in sections 1 5 of the Fraud Act 2006 are overlyinclusive, indiscriminate and lacking in sufficient legal certainty.

Critically discuss this view.

Problem Questions

(note these covers issues across all the property offences studied on thecourse not just the Fraud Act 2006 offences)

(3).

Sheila, an Australian business executive, is visiting the United Kingdom for the firsttime and is travelling to Edinburgh via London Heathrow. Upon arriving at Heathrowshe takes what she thinks is her suitcase and noticing that there are no spare trolleysavailable she simply removes another passengers luggage from the trolley next toher and uses it. She walks quickly towards the check-in desk for her Edinburgh flight.On the way, however, she notices that she has taken the wrong case. She abandonsthat suitcase and walks back and reclaims her own bag.

While checking in for her Edinburgh flight she claims that standard seating conditionswill probably cause severe pain in her legs and demands a seat with extra leg room.In fact, she is an experienced traveller and has never suffered any ill effects from air

travel. Although the airline usually charges extra for these seats, they agree to herrequest as a gesture of good will.

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Sheila is informed that her flight will be delayed. Unimpressed by the airports generalfacilities she follows a businessman through a security door to the airports ExecutiveLounge. She is not completely sure she is entitled to use the Lounge (which she isnot as it is a members only club) but her experience of Australian airports in delayeddeparture situations leads her to believe she might be.

In the Lounge a waiter brings her a newspaper, some champagne and somepeanuts, all of which are provided on a complimentary basis to Executive Loungemembers. She then orders and consumes a meal which she knows she will have topay for. When a waiter issues her a bill, she waits until his back is turned, and thenbegins to walk towards the exit. The waiter stops Sheila before she leaves but shepersuades him to agree to allow her to withdraw some cash from the cash-pointoutside the Lounge. She leaves and does not return.

Discuss the criminal liability, if any, of Sheila.

(4).

Kenny is a rich business man. Each summer he employs a student to work in hisoffice. He pays them a nominal fee and provides valuable work experience. Eilidh isdesperate for the position. She claims in her application that her performance in herfirst year at university was excellent. In fact her tutors regarded her efforts as fairlyaverage. She also claimed to have been heavily involved in the university debatingsociety whereas in reality she attended only the first meeting. Kenny is impressedwith Eilidhs application and, at her subsequent interview, her confident answers toquestions and her short skirt. She is given the work placement.

Over the course of the summer, Kenny becomes infatuated with Eilidh. Eilidh doesnot particularly like him but senses an opportunity to alleviate her large overdraft.She starts a relationship with Kenny, falsely telling him that he is the one, and isdelighted when he gives her an expensive diamond necklace. Later that night shesells the necklace to her boyfriend Steve, who runs a jewellery shop, for half its truevalue. When Steve asks where she had got it from Eilidh said simply, dont ask.

Kenny finds out from his business partner that Eilidh is going out with Steve. Furious,he storms off exclaiming that he is going round to Eilidhs university halls ofresidence to, get my necklace back. The security guard, whom he knows, lets himinto the halls and Kenny uses a spare key Eilidh has had cut for him to enter herroom. Having failed to find the necklace, Kenny angrily kicks a box and breaks the

expensive vase inside. He then uses lipstick to write a rude message on Eilidhsdressing table mirror. In a drawer, he discovers a photograph of Eilidh in acompromising position with a well known local politician, and he later threatens topass the photograph to the press unless the politician ensures planning permission isgranted for a controversial extension to Kennys house.

Discuss the criminal liability, if any, of those involved.

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Tutorial 14

Inchoate Offences

Introduction

This tutorial examines the underlying principles, and develops and tests yourunderstanding, of the substantive law of the inchoate offences.


1) an understanding of the underlying principles relating to inchoate liability

2) a knowledge of the law relating to assisting and encouraging, conspiracy andattempts to commit crimes

3) an ability to apply your knowledge of the inchoate offences to an analysis ofa hypothetical set of facts in order to determine the nature, and extent, of thecriminal liability of the various characters involved

Essential Reading

Herring, Criminal Law: Text, Cases and Materials, (4th ed), chapter 14.

Serious Crime Act 2007, Part 2

Spencer & Virgo, Encouraging and Assisting Crime: Legislate in haste,repent at leisure, [2008] Archbold News, Issue 9, 7-9.

Ormerod, Smith and Hogan Criminal Law, (12th edn), 446-64


(1) The present law of attempts in English criminal law is unprincipled andrequires reform.Write a memorandum for the Home Secretary in which you defend this statementand set out a principled reform proposal.

You should prepare an outline of an answer to this question and bring this to thetutorial

In preparing your outline you must ensure you move beyond description of

the present law on attempt.

You will have to think about the principles upon which the law of attempts

might be based. Should it be based on a culpability-centred theory or aharm-centred theory?

How shouldthe law deal with the problem of moral luck? What is Ashworths

view? Do you agree?

Should there be equivalence between the treatment of attempts and

completed crimes?

How are incomplete attempts dealt with presently? How should they be dealt

with?

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What does Anthony Duff argue the mens rea of attempts should be? Do you

agree?

How does the law deal with impossible attempts at present? How should it?

(2)A and B agree to kill V. Unknown to them, V is already dead. Are they guilty of

conspiring to murder V? Do you think A and B should be convicted for agreeing to dosomething which they could never actually do?

(3) What loophole in the law does Part 2 of the Serious Crime Act 2007 seek to fill?

(4)Archie and his long term Italian girlfriend Sara, own a home removal company. Theirpremium service involves packing the customers possessions in boxes supplied byArchie and Sara, before they are transported to the new property. They do notunpack the boxes at the new property and the customers pay a deposit of 5 per boxto them for the boxes, which Archie and Sara keep until the boxes are returned tothem.

Archie and Sara are a bit strapped for cash. They get drunk one evening and Sarasuggests a practice she claims is perfectly normal back home in Italy. She proposesthat they continue to tell the customers that the fee of 5 per box is a deposit.However, she says, when the customer tries to return the boxes we say we do notwant them back and tell the customer he has bought the boxes. We then get to keepthe money. Archie drunkenly agrees that it is a brilliant idea, and says, lets do it.

The next day Sara gives a quotation for a removal to an elderly lady, Elizabeth, whois an old family friend. She tells her it is a special low price deal. In reality, as Sarasuspects, the price is little different to what their competitors would have charged.Elizabeth is fully aware of this, as she has researched the market carefully, but

decides to use the firm because she likes Sara. Sarah takes a 100 deposit fromElizabeth for the boxes left behind after her move. Elizabeth returns the boxes to thefirm a week later and when Archie refuses to give her any money, Elizabeththreatens him with a knitting needle. A trembling Archie gives her the 100. Elizabethalso says that she is so appalled by her treatment that she will not pay the removalfee and promptly walks out.

Sara provides a removal service to Bobby the following day. She finds him a sweetold man so feels guilty. She telephones Archie, who tells her they are about to gobroke and that she must do it or he will leave her. Sara asks Bobby for the deposit,and when he refuses Sara simply takes 50, which is the approximate value of theboxes, from a coffee table whilst Bobbys back is turned.

Discuss the criminal liability, if any, of those involved.

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Tutorial 15

Complicity

This is our last substantive tutorial and examines the substantive law ofcomplicity.


1) a knowledge of the substantive law relating to accessorial liability foroffences;

2) an ability to apply your knowledge of the law of accessorial liability to an

analysis of a hypothetical set of facts in order to determine the nature, andextent, of the criminal liability of the various characters involved

Essential Reading

Herring, Criminal Law: Text, Cases and Materials, (4th ed), chapter 15.

Questions

(1) Monique is a university student. Feeling lonely, she decides to try and

make friends by joining a club which supports animal welfare. A few weeksafter joining, two of the group, Peter and Tony, tell her they need some help tofree some rabbits from the university laboratory which is using them to testexperimental medicines.

Monique initially agrees to the request but changes her mind when she hearsthat Peter and Tony intend to take guns. When she informs them that she nolonger wants anything to do with the plot, they insist that that they will not usethe guns. They also warn her that if she does not take part they will postcompromising pictures of her on the internet and will beat up her brother.

Monique reluctantly agrees to fulfil her role as lookout but is sure that securitywill stop them. Monique, Peter and Tony don white lab-coats and simply walkpast Frank, the lone security guard, with a smile. They enter the laboratory.Monique keeps watch as Peter and Tony break open the hutches and put therabbits in a large sack. On the way out Frank asks them about the sack. Peterpulls out his gun and points it at Frank. Frank makes for a security alarm andTony, who unbeknown to Monique and Peter has taken a loaded gun, opensfire on Frank, killing him instantly. They release the rabbits into the wild.

Discuss, the criminal liability, if any, of the people involved.

(2) Anna, Beryl, Charlie and Donna are four members of a successful girlband. Anna, Beryl and Charlie fall out with their erstwhile friend Donna after

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becoming frustrated by being continually overshadowed by her. Annasuggests to Beryl and Charlie that they go around to Donnas house and tellDonna to agree to the girls having a more prominent role in the groups nextrecord and to increase their share of the royalties. Anna says that if Donnadoes not comply with their demands then Beryl should slash Donnas face

with a knife. Beryl agrees this is a good idea. Charlie agrees to drive the othergirls to Donnas place but she never thought the plan to hurt Donna wouldactually be carried out, and did not want anything to do with violence.

Charlie distracts the security guard whilst Anna and Beryl sneak into Donnashouse. Before they find Donna, Beryl tells Anna she no longer wants to carryout the plan. Anna is furious and says she will tell the newspapers that Berylis cheating on her boyfriend unless she goes ahead. She also shakes her fistat Beryl who, because she is a particularly pliable individual, is persuaded tocontinue with the plan. They find Donna and make their demands, with Berylthreatening her with a knife. Donna refuses to comply with their demands.

Beryl then goes berserk and stabs Donna several times. Donna dies.

On the way out of the house Anna notices a gold disc on the wall. Shewrongly assumes it was one which was awarded to the group at a recentawards show, whereas in fact it was an individual award for best female artistawarded solely to Donna. She takes the disc and gives it to Charlie who iswaiting in the car outside. Charlie knows it was awarded solely to Donna buttakes it and puts it on her bedroom wall.

Discuss, the criminal liability, if any, of the people involved.

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