Criminal Law Spring

Question 1

What is the legal definition of rape under the Sexual Offences Act 2003?

Is this definition gender-specific?

Answer 1

• Rape is defined under section 1 of the Sexual Offences Act 2003 as when a person intentionally penetrates the vagina, anus or mouth of another person with his penis without consent or a reasonable belief that they consented.
• Only a person with a penis can commit rape. Other sexual offences cover acts involving female perpetrators or non-penile penetration.

Question 2

Why is the issue of consent problematic for juries?

Answer 2

• The private nature of sexual acts results in word against word situations, where objective proof might be difficult.
• Juries may be influenced by rape myths, such as false allegations being common, the assumption that rape only happens between strangers and misunderstanding that once consent is given, it cannot be withdrawn.

Question 3

What is the hierarchal approach to consent under the Sexual Offences Act 2003? What are its strengths and weaknesses?

Answer 3

Highest level to lowest level:

• Conclusive presumptions (Section 76): certain depictions or acts automatically mean no consent and no reasonable belief in consent
• Evidential presumptions (Section 75): if certain circumstances exist, such as unconsciousness, the burden shifts to the defendant to prove consent was present.
• General consent (Section 74): Freedom and capacity to choose.
• On one hand, this approach provides clear guidelines for courts, however, on the other hand, consent should be considered holistically, and rigid categories might overlook the complexities of sexual intercourse.

Question 4

What is the definition of theft? What is the actus reus and mens rea of theft?

Answer 4

• In section 1 of the Theft Act 1968, it is stated that a person is guilty of theft if they dishonestly appropriate property belonging to another with the intention of permanently depriving the other of it.
• The actus reus of theft is appropriation of property belonging to another, whilst the mens rea of theft is dishonesty and intention to permanently deprive.

Question 5

What is appropriation under the Theft Act 1968? How has this evolved through case law?

Answer 5

• In Section 3 of the Theft Act 1968, appropriation is defined as ‘any assumption by a person of the rights of the owner.’
• In R v Morris (1984), it was stated that only one right of the owner needs to be assumed, such as switching price labels.
• In R v Gomez (1993), even when the owner consents to the transfer, appropriation can still occur, such as when deception is involved.

Question 6

What is the evolution of tests for dishonesty?

Answer 6

• Initially, the test for dishonesty was the Ghosh test - which asks (1) if the conduct was dishonest according to the standards of ordinary and reasonable people, and if (2) the defendant realised what they were doing was dishonest by those standards.
• The case of Ivey v Genting Casinos removed the second part of the Ghosh test, making the test purely objective. Firstly, the defendant’s knowledge of the facts would be determined, and then assessed if they were honest or dishonest by the standards of ordinary and reasonable people.
• There is now no need to consider whether the defendant realised it was dishonest.

Question 7

What is the significance of the case of R v Hinks (2000) in the case of theft and dishonesty?

Answer 7

• The case concerned a defendant accepting gifts from a vulnerable adult.
• Legally valid gifts can still be appropriation if taken dishonestly.
• Therefore, the key issue was not whether it was a gift, but rather if it was taken honestly.

Question 8

What is the definition of robbery under s.8 of the Theft Act 1968?

Answer 8

• Robbery is when someone steals, and immediately before or after doing so uses any force on any person or put (or seek to put) any person in fear of being subject to force.

Question 9

What is the actus reus and mens rea of burglary? (2 versions)

Answer 9

Under s.9(1)(a) Theft Act 1968:

• Actus reus - entry into a building or part of a building as a trespasser with intention to commit theft, GBH or criminal damage at time of entry.
• Mens rea - Knowledge or recklessness as to being a trespasser, with intention at time of entry to commit theft, GBH or cause unlawful damage.

Under s.9(1)(b) Theft Act 1968:

• Actus reus - Entry as a trespasser, then committing theft or inflicts GBH.
• Mens rea - knowledge or recklessness as to trespass, mens rea for theft or GBH at the time of committing offence.

Question 10

What is ‘effective entry’ in reference to burglary?

Answer 10

• Effective entry means enough of the body has entered (trespassed) a property to allow commission of the offence. The focus is on the capability to commit the crime.
• Example: R v Ryan (1996) - entry does not need to be substantial, being stuck partially suffices if the body is inside.

Question 11

What is the difference between burglary and aggravated burglary?

Answer 11

• Burglary is entry as a trespasser with intent to steal, cause GBH or damage.
• Aggravated burglary refers to burglary committed whilst in possession of a weapon, imitation firearm, explosive or offensive weapon.

Question 12

What are the elements of blackmail under s.21 Theft Act 1968?

Answer 12

A demand is made with menaces, unwarranted demand (unless the defendant believed reasonable grounds existed and menaces were a proper means), with an intention to cause a gain for oneself or a loss for another.

Question 13

According to Ashworth in Robbery Re-assessed (2002), what are the current difficulties with the law on robbery?

Answer 13

Ashworth criticises:

• The low threshold for force.
• The broad application, where even minimal threats amounts to robbery.
• The overlap with theft, which asks the question of when a theft becomes a robbery.
• Calls for clearer distinctions and reform to better reflect moral culpability.

Question 14

What is fraud? What is the actus reus and mens rea for fraud?

Answer 14

Fraud Act 2006:

• Fraud is false representation, failure to disclose information under a legal duty or abuse of position.
• Actus reus: making a representation (express or implied) that is false or misleading. No requirement for anyone to believe the falsehood or for there to be an actual loss.
• Mens rea: dishonesty (objectively following Ivey v Genting Casinos (2017)), and an intention to make a gain for oneself or cause a loss (or risk of loss) to another.
• The defendant must know that the representation is or might be false or misleading.

Question 15

How did the Fraud Act 2006 change the law on fraud?

Answer 15

• The fraud act 2006 replaced older deception offences, and simplified the law into a single offence of fraud with 3 types:
• False representation
• Failure to disclose information
• Abuse of position
• The focus following the Fraud Act 2006 was to criminalise dishonest conduct rather than technical deception mechanisms, making prosecution for fraud much simpler.

Question 16

What is meant by a ‘legal duty to disclose’ in the Fraud Act 2006?

Answer 16

• Fraud can be committed by failing to disclose information when there is a legal duty to do so.
• Duty may arise from statute, contract, relationship of trust or other obligations.
• Case law: R v Rai (2000) - continued acceptance of home improvements after mother’s death without informing the council was deception by failure to disclose.

Question 17

What is the actus reus and mens rea of criminal damage?

Answer 17

According to the Criminal Damage Act 1971:

• Actus Reus: Destroying or damaging property belonging to another without lawful excuse, including temporary or permanent impairment to the property’s value or usefulness.
• Mens Rea: Intention or Recklessness as to damaging or destroying property belonging to another.
• Recklessness test is subjective (R v G and Another (2003)) - the defendant must foresee the risk of damage and unreasonably take the risk.

Question 18

What is meant by ‘damage’ in criminal damage offences?

Answer 18

• ‘Damage’ refers to any physical harm that impairs the value, usefulness or normal function of any property. It does not need to be permanent.
• Roe v Kingerlee (1986), Hardman v Chief Constable of Avon and Somerset (1986), etc.

Question 19

What are possible defences to criminal damage?

Answer 19

s.5 Criminal Damage Act 1971:

• s.5(2)(a): D believed the owner would have consented to the damage.
• s.5(2)(b): D believed the damage was necessary to protect property belonging to himself or another.
• Important: It is based on D’s belief, not whether the belief was reasonable (R v Denton [1982]).

Question 20

How does aggravated criminal damage differ from ordinary criminal damage?

Answer 20

• Aggravated criminal damage refers to damage to any property with intent or recklessness as to another life being endangered by the damage.
• R v Sangha (1988) - actual endangerment is unnecessary, but rather the intent or recklessness.

Question 21

What is the difference between a principal and secondary party? What makes up a secondary party? How has the ruling on secondary parties changed after R v Jogee (2016)?

Answer 21

Principal - the person who directly commits the actus reus of the offence.

• Secondary party - a person who assists, encourages or otherwise helps the principal party commit the crime.
• A person might be liable as a second party by aiding, abetting, counselling or procuring (setting up necessary conditions for the act to occur).
• Mere presence is not enough unless there is also an intent to assist (R v Clarkson (1971)).
• A secondary party must have knowledge of the essential matters of an offence. Not necessarily the full details, but the type of offence (Maxwell v DPP (1978)).
• General foresight is not enough after R v Jogee (2016), intention to assist/encourage is necessary.

Question 22

What is the difference between insanity and non-insane automatism? What are some criticisms of these distinctions?

Answer 22

Insanity:

• Arises from a disease of the mind.
• Results in a defect of reason so that the defendant does not know the nature or quality of their act and why it was wrong.
• Not guilty by reason of insanity.

Non-insane automatism:

• Arises from an external factor such as a blow to the head or attack by bees.
• The defendant acts in a totally involuntary way.
• Complete acquittal if successful.

Criticisms:

• ‘Disease of the mind’ is a legal, not medical definition. By legal logic, epilepsy = insanity (R v Sullivan (1984)).
• This definition stigmatises mentally ill defendants.
• Automatism leads to leads to full acquittal, whereas insanity leads to hospitalisation.

Question 23

What is the rule of intoxication from DPP v Majewski (1977)?

Answer 23

• Two types of intoxication - voluntary (willingly chose to drink) and involuntary (unknowingly intoxicated such as through a spiked drink)
• Voluntary intoxication is no defence to crimes requiring basic intent such as assault or criminal damage.
• Intoxication may negate intent in specific intent crimes such as murder if they were so intoxicated that they could not form the necessary mens rea.

Question 24

What is the nature of the test for self defence according to Palmer v R (1971)?

Answer 24

• Was the force used reasonable in the circumstances as the defendant believed them to be?
• If the defendant genuinely believed they were under attack, even if they were mistaken, the defence may still apply, as this is a subjective test.
• However, if the force was grossly disproportionate, then the defence fails. To determine the reasonableness of the force, the courts consider the immediacy of the threat, the proportionality of the response to the threat and whether the defendant acted honestly and instinctively. This is an objective test.

Question 25

What is the difference between duress and necessity?

Answer 25

- Duress refers to a threat of death or serious injury that compels the defendant to commit a crime. - The threat in question must be immediate and inescapable. - Not applicable for murder or attempted murder (R v Howe (1987) - Necessity refers to the defendant acting to prevent a greater harm. - Less about external threat and more about a lesser of two evils. - Both rarely succeed and are narrowly interpreted by courts.