Criminal Law 2010-11

Tutorial 10 Substantive defences In this tutorial we consider the substantive defences of duress, necessity and the use of 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 for reform 3) an ability to apply the law to a hypothetical set of facts to determine whether the defences of duress, necessity or the use of force in private or public defence 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] CrimLR 347 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

Discussion Questions 1) What is the difference between a justification and an excuse? Does duress have an excusatory or justificatory rationale? What about necessity? What about use of 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 take in its report Murder, Manslaughter, Infanticide? Do you agree? 4) Should a defendant who honestly, but mistakenly, believes that unless he commits the crime he will be killed or seriously injured be able to rely on the defence of duress by threats or should the law require that his belief be based on reasonable 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 difficulties associated with investigating and disproving the defence of duress, where policy choices had to be made in the context of the defence, he was inclined towards tightening the defence rather than relaxing it. In what ways could it be said that Lord Bingham endeavours to tighten the defence in this case? 6) (a) Dario is a former cocaine addict. Abuse of the drug over many years has rendered him an unusually paranoid and vulnerable individual. He owes Gareth a large sum of money. Gareth has become impatient for repayment and sends his small nine year old son Timmy round to Darios house to ask for 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, been convinced that Gareth is out to kill him. Terrified, he takes some money from a 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 to Gareth. Gareth is angry. He telephones Dario and says he is coming round to 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, the postman, 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-social behaviour. As part of an initiation into the group the other boys demand that he carry out a series of acts of minor vandalism and petty theft. Jason, scared of what they might do to him if he refuses, carries out these offences. One day the boys set him his final task to rob an elderly lady. Jason says that he wont hurt anyone, but the boys insist he carry out the offence or they will cause him some serious damage. Jason pushes over Mary, a frail old lady, and steals her handbag.

Would Jason have a substantive defence: (a) to the series of acts of vandalism and theft (b) to the robbery? 9) Derek and his son Terence are on a luxury cruise with twenty other passengers. One night disaster strikes, and the cruise boat sinks. There is only 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 life boat. He sees Terence in the distance, struggling to stay above water. Derek is a poor swimmer and so pleads with the other passengers on the life boat to save his son. They all refuse. A few minutes later an obese man named Vincent tries to climb onto the lifeboat. Derek, who has not realised that there are 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 other passengers, Derek pushes Vincent back into the water. Terence and Vincent are never seen again. Discuss Dereks criminal liability, if any 10) Ian Dennis in his July 2008 editorial in the Criminal Law Review describes s. 76 of the Criminal Justice and Immigration Act 2008 as a pointless exercise. Do you agree? Criminal Law 2010-11

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 of homicide). The defences are non-insane automatism, insane-automatism and intoxication. The response of the law to a defendants lack of (or impaired) capacity for rational choice 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 law provides a complete and general (i.e. to all crimes) defence known as noninsane automatism. (2) If the cause is internal to the defendant (such as mental illness) a defence of insane-automatism (more commonly called the insanity defence) may be available but this is a special not guilty verdict which permits the court to order coercive measures to be taken against the individual (such as indefinite detention in a special hospital). (3) If the cause is self-induced (most commonly alcohol or drugs) the defendant will be convicted of basic intent crimes despite absence of mens rea. In these cases a doctrine of prior fault operates. Preparation for, and participation in, this tutorial should equip you with: 1) Knowledge and understanding of the defences of sane and insane automatism and intoxication; and 2) An ability to apply the law to a hypothetical set of facts to determine whether any of the mental condition defences may be successfully relied upon 3

Essential Reading Herring, Criminal Law: Text, Cases and Materials (4th ed), relevant sections of Defences chapter. DPP v. Majewski [1977] A.C. 443 (House of Lords) (particularly from page 469 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 logical that an individual who through voluntary intoxication does not form the requisite mens rea necessary for a specific intent offence can be acquitted, whilst an individual who through voluntary intoxication does not form the requisite mens rea for a basic intent offence would be convicted? What is Lord Salmons answer to this question (see p. 482 of Majewski)? (3) Consider the following scenarios. Explain whether Dan is criminally liable in each case: a) Dan drinks ten pints of beer after work. Vera accidentally knocks over his eleventh pint. Dan pushes Vera so hard against a glass door that she crashes through it and suffers very nasty facial injuries. Dan attends a party. He asks whether the fruit punch is alcoholic. He is incorrectly told that it is alcohol free. He drinks a large quantity of the punch and gets very drunk. When Vera accidentally bumps into him, Dan reacts by pushing her down the stairs. Vera is badly injured.

b)

(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 into the crowd at such events. In recent years Rick, having put on a bit of weight, has controlled his impulse to stage dive, frightened that he might hurt someone. At the concert Neil gets increasingly frustrated by Ricks insistence that they admire the bands performance quietly from their seats at the back of the hall. Neil takes some amphetamine and also slips some into Ricks soft drink. Soon thereafter Neil and 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 the face 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 misses the man and lands squarely on top of Debbie, a small teenage girl, who is knocked to

the ground. She is then crushed to death by a surge forward in the crowd. The security staff could not rescue her because Graham, the concert promoter, had allowed 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-insane automatism? 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 156 HL); 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 a previous year. Think about how you would set about answering this question and produce an essay plan. The law of intoxication, as a defence to criminal liability, lacks intellectual coherence and allows too many people to avoid responsibility for their choices. Discuss Criminal Law 2010-11

Tutorial 12 Theft Introduction In this tutorial we will consider the law of theft, handling stolen goods and robbery Preparation for, and participation in, this tutorial should equip you with: 1) a knowledge of the requirements for establishing the offence of theft, handling and robbery 2) a knowledge and critical understanding of the key cases on the concept of appropriation 3) a critical appreciation of the challenge of directing a jury in accordance with the 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.

Discussion Questions (1) In all three of Lawrence, Gomez and Hinks the appropriation took place with the consent of the owner. How was the consent that the owner gave in Lawrence 5

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 to whether there has been an appropriation? (2) You tell me that you left your wallet at home (which is true), and ask me to lend you 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, conflict with the law laid down in Ghosh. (a) In deciding whether the defendant thought his acts were dishonest you may ask yourself whether you, in those circumstances, would have thought them dishonest. If you would, then he was dishonest. (b) In deciding whether the defendant thought her acts were dishonest you may ask yourself 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 about her beliefs. (c) It is your decision, not mine, not the defendants; do you believe the defendant believed his acts were not dishonest? (d) The rationale for a jury is to adopt community standards. Therefore if you think that this behaviour was dishonest then he is dishonest. If you do not then you must still 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. But if 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 under the Theft Act? (a) One day David takes some paper and coloured pens from the office in which he works to give to his small children to draw with. He claims it is a perfectly normal thing 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 is selling guns to a state known to be committing genocide. She arranges a break in to the 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 regard her actions as dishonest. (c) Sam, a solicitor, has some cash flow difficulties and takes money from the special account 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 a couple of days later. (5) I am at work and realise Ive forgotten my packed lunch and have no money on me. 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 I have an intention to permanently deprive? (See Velumyl [1989] Crim LR 299 CoA). Have I committed theft?

(6) Imagine that you were the prosecutor in the Oxford v Moss case [1979] Crim LR 119 QB. Can you build a case alleging that the student committed theft of the piece of paper the exam was printed on? (7) Bob decides to steal a can of baked beans from Tescos. He goes to his local branch, walks into the store, walks to the aisle containing baked beans, and puts the can into his shopping basket. Before he gets a chance to turn round and walk towards the door, a store detective accosts him and accuses him of stealing the tin of beans. Has Bob committed theft? (8) Tom sees Jims painting, and thinks it is a Constable worth hundreds of thousands of pounds. So he offers Jim 100,000 for it. Jim realises that Tom has mistaken the painting for a Constable, when in fact it was painted by his sister! It is only worth 100. Jim immediately accepts Toms offer. An enforceable contract is thus made. The next day Jim is arrested for theft of the 100,000. Has Jim committed theft?

Criminal Law 2010-11 Tutorial 13 Property Offences Following on from our tutorial on theft last week we complete our study of the property offences by looking, in particular, at offences created by the new Fraud Act 2006. We will also develop understanding of the property offences in general and work on skills of problem analysis through attempting a number of problem style questions based 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

Discussion Questions (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 overly inclusive, indiscriminate and lacking in sufficient legal certainty. Critically discuss this view. Problem Questions (note these covers issues across all the property offences studied on the course not just the Fraud Act 2006 offences) (3). Sheila, an Australian business executive, is visiting the United Kingdom for the first time and is travelling to Edinburgh via London Heathrow. Upon arriving at Heathrow she takes what she thinks is her suitcase and noticing that there are no spare trolleys available she simply removes another passengers luggage from the trolley next to her 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 abandons that suitcase and walks back and reclaims her own bag. While checking in for her Edinburgh flight she claims that standard seating conditions will 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 her request as a gesture of good will.

Sheila is informed that her flight will be delayed. Unimpressed by the airports general facilities she follows a businessman through a security door to the airports Executive Lounge. She is not completely sure she is entitled to use the Lounge (which she is not as it is a members only club) but her experience of Australian airports in delayed departure situations leads her to believe she might be. In the Lounge a waiter brings her a newspaper, some champagne and some peanuts, all of which are provided on a complimentary basis to Executive Lounge members. She then orders and consumes a meal which she knows she will have to pay for. When a waiter issues her a bill, she waits until his back is turned, and then begins to walk towards the exit. The waiter stops Sheila before she leaves but she persuades him to agree to allow her to withdraw some cash from the cash-point outside 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 his office. He pays them a nominal fee and provides valuable work experience. Eilidh is desperate for the position. She claims in her application that her performance in her first year at university was excellent. In fact her tutors regarded her efforts as fairly average. She also claimed to have been heavily involved in the university debating society whereas in reality she attended only the first meeting. Kenny is impressed with Eilidhs application and, at her subsequent interview, her confident answers to questions and her short skirt. She is given the work placement. Over the course of the summer, Kenny becomes infatuated with Eilidh. Eilidh does not 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 is delighted when he gives her an expensive diamond necklace. Later that night she sells the necklace to her boyfriend Steve, who runs a jewellery shop, for half its true value. 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 of residence to, get my necklace back. The security guard, whom he knows, lets him into the halls and Kenny uses a spare key Eilidh has had cut for him to enter her room. 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 Eilidhs dressing table mirror. In a drawer, he discovers a photograph of Eilidh in a compromising position with a well known local politician, and he later threatens to pass the photograph to the press unless the politician ensures planning permission is granted for a controversial extension to Kennys house. Discuss the criminal liability, if any, of those involved.

Criminal Law 2010-11

Tutorial 14 Inchoate Offences

Introduction This tutorial examines the underlying principles, and develops and tests your understanding, of the substantive law of the inchoate offences.
Preparation for, and participation in, this tutorial should equip you with: 1) an understanding of the underlying principles relating to inchoate liability 2) a knowledge of the law relating to assisting and encouraging, conspiracy and attempts to commit crimes 3) an ability to apply your knowledge of the inchoate offences to an analysis of a hypothetical set of facts in order to determine the nature, and extent, of the criminal 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

Discussion Questions (1) The present law of attempts in English criminal law is unprincipled and requires reform. Write a memorandum for the Home Secretary in which you defend this statement and set out a principled reform proposal. You should prepare an outline of an answer to this question and bring this to the tutorial 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 a harm-centred theory? How should the 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? 1

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 do something 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. Their premium service involves packing the customers possessions in boxes supplied by Archie and Sara, before they are transported to the new property. They do not unpack the boxes at the new property and the customers pay a deposit of 5 per box to them for the boxes, which Archie and Sara keep until the boxes are returned to them. Archie and Sara are a bit strapped for cash. They get drunk one evening and Sara suggests a practice she claims is perfectly normal back home in Italy. She proposes that 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 not want them back and tell the customer he has bought the boxes. We then get to keep the 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, who is an old family friend. She tells her it is a special low price deal. In reality, as Sara suspects, 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 from Elizabeth for the boxes left behind after her move. Elizabeth returns the boxes to the firm a week later and when Archie refuses to give her any money, Elizabeth threatens him with a knitting needle. A trembling Archie gives her the 100. Elizabeth also says that she is so appalled by her treatment that she will not pay the removal fee and promptly walks out. Sara provides a removal service to Bobby the following day. She finds him a sweet old man so feels guilty. She telephones Archie, who tells her they are about to go broke 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 the boxes, from a coffee table whilst Bobbys back is turned. Discuss the criminal liability, if any, of those involved.

Criminal Law 2010-11

Tutorial 15 Complicity

This is our last substantive tutorial and examines the substantive law of complicity.
Preparation for, and participation in, this tutorial should equip you with: 1) a knowledge of the substantive law relating to accessorial liability for offences; 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, and extent, 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 weeks after joining, two of the group, Peter and Tony, tell her they need some help to free some rabbits from the university laboratory which is using them to test experimental medicines. Monique initially agrees to the request but changes her mind when she hears that Peter and Tony intend to take guns. When she informs them that she no longer wants anything to do with the plot, they insist that that they will not use the guns. They also warn her that if she does not take part they will post compromising 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 security will stop them. Monique, Peter and Tony don white lab-coats and simply walk past 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 the rabbits in a large sack. On the way out Frank asks them about the sack. Peter pulls out his gun and points it at Frank. Frank makes for a security alarm and Tony, who unbeknown to Monique and Peter has taken a loaded gun, opens fire 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 girl band. Anna, Beryl and Charlie fall out with their erstwhile friend Donna after
1

becoming frustrated by being continually overshadowed by her. Anna suggests to Beryl and Charlie that they go around to Donnas house and tell Donna to agree to the girls having a more prominent role in the groups next record and to increase their share of the royalties. Anna says that if Donna does 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 other girls to Donnas place but she never thought the plan to hurt Donna would actually be carried out, and did not want anything to do with violence. Charlie distracts the security guard whilst Anna and Beryl sneak into Donnas house. Before they find Donna, Beryl tells Anna she no longer wants to carry out the plan. Anna is furious and says she will tell the newspapers that Beryl is cheating on her boyfriend unless she goes ahead. She also shakes her fist at Beryl who, because she is a particularly pliable individual, is persuaded to continue with the plan. They find Donna and make their demands, with Beryl threatening 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. She wrongly assumes it was one which was awarded to the group at a recent awards show, whereas in fact it was an individual award for best female artist awarded solely to Donna. She takes the disc and gives it to Charlie who is waiting in the car outside. Charlie knows it was awarded solely to Donna but takes it and puts it on her bedroom wall. Discuss, the criminal liability, if any, of the people involved .