Chapter 1

To what extent should the law interfere with our actions?

John Stuart Mill argued that the State should only interfere with an individual’s actions in order to prevent harm being caused to another. The principle is a satisfactory one but the difficulty sometimes is in defining what amounts to harm. We know that criminal offences such as theft, robbery and assault cause harm to us and therefore are prohibited by society, but harm is more difficult to assess where a woman steals nappies for a child or a homeless person steals a loaf of bread. What harm is caused here? Whilst theft is unlawful, it is difficult to accept there is harm being caused to the shopkeeper who is a victim. Indeed, one could argue that harm is being caused by society to the person who finds it necessary to steal.

Thus harm sometimes has a subjective interpretation but laws cannot be made with differing standards in mind. Hence, the extent to which the law should interfere with our actions depends on the expectations of the State together with society’s values. For example, homosexuality was unlawful between adult consenting males over the age of 21 until the Sexual Offences Act 1967, as society failed to recognise the legitimacy of homosexual practice. Indeed, it was not until the Criminal Justice and Public Order Act 1994 that the age of consent was reduced to the age of 18. The change in public attitudes recognised that harm was not caused by activities of consenting males of the appropriate age, and homosexuality ceased to be unlawful. Harm, therefore, has a fluctuating meaning given the standards of the State in which we live. There are still many countries in the world where homosexuality remains unlawful.

More recently, the issue of assisted suicide has been tested by the courts on various occasions. Assisted suicide is unlawful (Suicide Act 1961, section 2(1)). Society wishes to protect the vulnerable and disabled from potential abuses if assisted suicide were legalised. But if we deny a person’s wish to determine how to end their life, who is suffering harm? One may argue that the person who is harmed is the person being denied autonomy to decide when to end their life.

As a general concept we accept that society should interfere to prevent harm being caused, despite the fact that the term ‘harm’ can sometimes be difficult to define.

Chapter 2

Critically discuss the development of the law of recklessness.

The case of Cunningham (1957) set down a subjective test for recklessness. In order for a defendant to be convicted of a criminal offence where the mens rea was recklessness, it was necessary to prove that the defendant foresaw there was a degree of risk but chose to take the risk. The case of Stephenson (1979) illustrates the application of the subjective test. Here, a paranoid schizophrenic failed to recognise the risk of settling fire to a haystack in order to keep warm. His appeal against conviction under section 1 of the Criminal Damage Act 1971 was successful on the basis that he failed to recognise the risk, possibly due to his medical condition. However, the case of Caldwell in 1982 saw the test for recklessness change to an objective test. Here, the House of Lords held that a person would be negligent if he did an act which created an obvious risk of damage and when he carried out that act, he gave no thought to the risk, or recognised the risk and carried on regardless. The difficulty with this test was that it produced some harsh results as it failed to consider the person who was unable to recognise that the risk existed. Take, for instance, the case of Elliot v C, a 14-year-old girl with low intelligence who failed to recognise the risk of setting fire to white spirit. Whilst this satisfies the test in Caldwell, it seems unjust to convict a defendant who is unable to recognise any risk at all. In 2003, the House of Lords took the opportunity to change the law once more with the case of R v G and R. This case saw the conviction of 2 young boys who failed to see the risk of leaving lit newspapers close to a wheelie bin. £1 million worth of damage was caused as a result of the fire. At first instance, it was argued that the risk of extensive damage would be obvious to the reasonable person. However, the defendants in this case were not the reasonable person, just two young boys who failed to recognise any risk at all. The case of G and R overruled Caldwell and the test for recklessness reverted to a subjective test. Caldwell was widely criticised and, by reverting to a subjective test, gross unfairness for defendants who fail to recognise a risk should now be eliminated.

Chapter 3

Bernie is employed as a life guard. His elderly and ailing grandfather, Alfie, has moved in with him which Bernie finds particularly trying. Bernie is distracted whilst on duty and does not see Kylie, who is having difficulty swimming. Kylie begins to struggle and quickly drowns.

Robin, another lifeguard, has dropped a burning cigarette in the locker room. He can see that it has ignited a towel left on the floor but he is late for his bus and runs out. The fire spreads quickly, suffocating Colin, who dies.

Bernie arrives home and sees that Alfie’s condition has deteriorated but does not call the doctor. Alfie dies overnight. Bernie feels the need to escape from the house. As he does, he sees Cyril, his elderly neighbour, clutching his chest in apparent agony. Bernie ignores him, walking swiftly past.

Explain the law relating to omissions to act and comment on Bernie and Robin’s liability for the deaths of Kylie, Colin, Alfie and Cyril.

This is a problem question on omissions and you should address the problem question in detail and recognise that criminal liability generally cannot be imposed by an omission or failure to act. Some exceptions are contained in statute and some in common law, as this problem question shows.

Kylie: you should recognise that criminal liability would be imposed for a failure to act as Bernie is under a contractual duty. Refer to the case of Pittwood by clearly expressing the principle from the judgment.

Colin: this is a Miller situation and liability is imposed on this basis. Miller created a dangerous situation himself and then did nothing to counteract it. However, Robin would be guilty under the Miller principle as he created the dangerous situation and did nothing to resolve the situation.

Alfie: in this situation Bernie has assumed a voluntary duty of care and so the situation becomes synonymous with cases such as Stone v Dobinson and Instan. It would be a good idea to comment on whether Bernie was able to care for his grandfather and whether he was doing his subjective best. However, subjectivity is irrelevant as shown by Stone v Dobinson. In contrast to this case, however, it does appear right that he is convicted. It would also be correct to refer to Downes, Gibbons and Proctor and Hood. Whilst they involve different relationships, they illustrate the same principle.

Cyril: the law does not impose criminal liability for failing to help a stranger. One may criticise the lack of moral responsibility attached to the law in England and Wales as opposed to other jurisdictions. One may also refer to Instan (1893) wherein it was stated that not every moral responsibility imposes a legal obligation.

Chapter 4

Ray is filling up his car with petrol when three masked men speed into the petrol station on motorbikes, brandishing baseball bats and knives. They run into the petrol station demanding money. They take no notice of Ray but the shock causes him to have a fatal heart attack. A post-mortem shows Ray had a weak heart.

The three men are charged with manslaughter. What form of manslaughter would be most appropriate and what are the chances of a successful conviction?

As this question is very clearly about involuntary manslaughter you should focus on this area and not discuss murder at all. The question invites you to consider both forms of involuntary manslaughter, unlawful act manslaughter and gross negligence manslaughter. You should quickly realise that no duty of care is owed to Ray by anyone (save for in relation to their driving!). Therefore, once you have set out the elements of gross negligence manslaughter, these can be quickly eliminated from the discussion. A brief consideration of Bateman and Adomako will be enough but you should be able to define gross negligence manslaughter accurately.

Your attention should then turn to unlawful act manslaughter. Ensure your answer is carefully and clearly structured. Refer to the elements and the principle in Larkin. Then move through each element using case law in support.

Intentional act: Newbury and Jones and Larkin are the relevant cases. The act must be intentional, but the consequences do not need to be. Is this an intentional act? Yes it is. The first element is satisfied.

Unlawful: this act is clearly an unlawful act and you should refer to Fenton and Franklin for authority on this point. Lamb is also relevant in this respect. You may refer to the drug cases although you should take care not to digress too far from the real issue. Is robbery an unlawful act? Of course it is!

The act must be dangerous: this attracts quite a wide interpretation. You should refer to Church where Lord Edmund Davies refers to the risk of some harm as being a necessary element. One might assume that the three marked raiders’ acts do lead to at least a risk of some harm but it is objectively tested and the ordinary reasonable onlooker is not endowed with the knowledge of Ray’s condition. They are unlikely to be liable for UAM. In order to support this you should refer to Dawson where the appeal was allowed as there had to be some risk of physical harm. Even though the act does not need to be directed at the victim (Dalby and Goodfellow), reference to Ball and Dawson should allow you to conclude that the masked men are unlikely to be convicted of Ray’s death.

Chapter 5

Question 1

Ali returns home to discover his wife in bed with another man, Mo. Ali picks up his son’s cricket bat and hits Mo over the head, killing him. Ali has been charged with murder, but argues that he was so overcome by his wife’s infidelity that he lost his self-control. Ali believes he can rely on the defence of loss of self-control (originally referred to as provocation). Advise Ali.

The problem question deals with the law of loss of self-control. Section 54(1) of the CJA 2009 states that a person will not be convicted of murder if

1. the defendant loses his/her self-control; and
2. the loss of self-control has a qualifying trigger; and
3. a person of the defendant’s age and sex, with a normal degree of tolerance and self-restraint and in the circumstances of the defendant might have reacted in a similar way.

Ali has lost his self-control and in order to decide whether there is a qualifying trigger, we have to consider s 55(3), (4) or (5). We ask whether Ali’s loss of self-control was attributable to a thing or things done or said (or both) which a) were circumstances or an extremely grave character? It is indeed possible that, in Ali’s opinion, this subsection is easily satisfied. Section 55(4)(b) asks whether Ali will have a justifiable sense of being seriously wronged. It would appear that Ali might well be able to rely on loss of self-control as both the above would be satisfied. However, s 55(6)(c) specifically excludes sexual infidelity as a qualifying trigger. However, the recent case of R v Clinton (Jon-Jacques) (2012) held that the sexual infidelity could be taken into account as far as the surrounding circumstances were concerned. Ali may be successful in relying on the defence of loss of self-control.

Question 2

Explain the development of the law of provocation and loss of self-control.

Answer

Provocation was a historical offence, created by common law with its origins around the seventeenth century. Due to inconsistencies, s 3 of the Homicide Act 1957 put provocation on a statutory footing. The statutory definition in s 3 was subsequently interpreted by common law to such an extent that the test, which was originally intended to be objective, became largely subjective. The Coroners and Justice Act 2009, s 54 sought to redefine provocation (now referred to as loss of self-control) and revert to a more objective test whilst also remedying the defects of the common law (see battered wives syndrome).

Chapter 6

Problem question

Anna has a lot to drink one night and cannot remember getting home or going to bed.  A few days later she is arrested for the murder of a young woman.  Witnesses saw Anna hitting the woman with a brick in the street.  Advise Anna of any defences she might use.

Answer

Anna’s best defence  - her only one in the circumstances – may be intoxication.  Intoxication is not a true defence, but it can be used as a denial of mens rea.  Anna has been charged with murder.  This is a crime of specific intent, it can be committed only with intention.  If Anna was so intoxicated that she was incapable of forming the intention to kill or to cause grievous bodily harm to her victim she cannot be guilty of murder.  This denial of mens rea applies only to offences of specific intent.  This seems  to be good for Anna as unless the prosecution can prove beyond reasonable doubt that she intended to kill or cause GBH then conviction for murder seems unlikely.  However, there is a downside to Anna’s defence, as intoxication cannot be used as a defence for crimes of basic intent.  The prosecutor would probably reduce Anna’s charge to one of manslaughter which can be committed recklessly.  Where intoxication is voluntary, as here, the Majewski rule applies to crimes such as manslaughter which are basic intent crimes.  This means that Anna’s recklessness in getting drunk will form the recklessness mens rea required for the manslaughter charge and it only falls to the prosecution to prove that Anna committed the actus reus of the offence. 

Essay question

Explain the defence of duress in English criminal law.

Answer

Duress is an excusatory defence which can be pleaded when a defendant claims he only committed the crime because he had been threatened  that if he didn’t, he would be killed or seriously injured .  The defence is a general defence, and a complete defence, but it cannot be pleaded in cases of murder (Howe) or attempted murder (Gotts).   The test for duress is a two stage test formulated by Lord Lane in the case of Graham

1. Was the accused, or may he have been, impelled to act as he did because, as a result of what he reasonably believed the person issuing the threat had said or done, he had good cause to fear that if he did not so act that person would kill him or cause him serious personal injury?
2. If so, have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the accused, would not have responded to whatever he reasonably believed the person making the threat said or did by taking part in the killing.  The fact that an accused’s will to resist has been eroded by the voluntary consumption of drink or drugs, or both is not relevant to this test.

There are two objective – reasonable – standards in this test.  Firstly, the defendant’s reasonable belief in the threat that was made, and secondly, the reasonable firmness of the person against whose standards the defendant is judged.  This reasonable person also, according to the second test, has to share some of the characteristics of the defendant.  Which characteristics these are were set out in the case of Bowen.  In Bowen, the  judge said that relevant characteristics would be, ‘Age, possibly sex, pregnancy, serious physical disability, recognised mental illness or psychiatric condition.’

The most recent case House of Lords case which reviews the defence of duress is the 2005 case of Hasan.  Here the judges laid down the seven essential elements of the defence.

1. Duress is no defence to murder, attempted murder or treason
2. There must be a threat of death or serious injury
3. The threat must be directed against D or his immediate family or someone close to him, or someone for whom D would reasonably regard himself as responsible
4. D’s perception of the threat and his conduct in response must be objectively assessed
5. The conduct which the duress is sought to excuse must be directly caused by the threats D relies on
6. There must be no evasive action D could reasonably take, and
7. D cannot rely on duress to which he has voluntarily laid himself open.

The final element refers to the point that if a person associates with criminals so that it is foreseeable that he may come under pressure to commit crimes, he will not be able to plead the defence of duress. 

Chapter 7

Problem question

Ranvir gets into a fight at the local gym.  He pushes Lionel, who falls over backwards and sprains his ankle.  Ranvir then kicks Sean repeatedly in the head, giving him a fractured skull.

Advise Ranvir of any offences against the person he may have committed.

Answer

This problem question deals with non fatal offences under the Offences Against the Person Act 1861 and common law.  It makes sense to deal with each situation separately.  When Ranvir pushes Lionel it is likely that he commits a battery as the touching is intentional and unlawful in the see that Lionel does not consent to it.  This battery then causes actual bodily harm in the sprained ankle.  The definition of actual bodily harm comes from the case of Miller – any hurt or injury calculated to interfere with the health an comfort of the victim.  This would clearly include a sprained ankle.  A charge under s47 of the Offences Against the Person Act 1861 would then seem possible.  The actus reus of s47 is an assault or battery which causes actual bodily harm.  The mens rea of s47 – following Savage – is simply intention or recklessness as to whether the assault or battery was committed.  No further mens rea relating to the bodily harm is necessary.  As Ranvir intended the push – the battery – then mens rea for s47 is present.  The actus reus of the battery also clearly ‘caused’ the sprained ankle, the three rules of causation should be applied here.  It is likely that Ranvir would be convicted of this offence.

Sean’s fractured skull would be defined as grievous bodily harm (GBH), where the word ‘grievous’ means ‘serious’ as defined in the case of Saunders.  This would suggest a charge of s18 or s20 of the Offences Against the Person Act 1861.  In each section, the actus reus is the same, that is an act which causes serious harm to another. As Ranvir’s kick caused the fracture – again applying the three rules of causation, the actus reus seems to be present.  S18 and s20 differ however, in the mens rea requirement.  For Ranvir to be convicted of a s18 offence, he must have intended GBH.  This intention can be either direct, or oblique.  If Ranvir did not directly intend to cause GBH, the jury will be asked to consider whether oblique intention was present using the Nedrick/Woollin test.  This test asks two questions; Was it virtually certain that the defendant’s acts would cause the prohibited consequence? And did the defendant know this? If this is applied to the situation, it would perhaps seem virtually certain that kicking someone repeatedly in the head would cause serious injury, and most people would know that, including Ranvir, so the answer to both questions is yes and the test is satisfied.  The jury may then conclude that Ranvir had intention to seriously harm Sean and the s18 offence is complete.  Conviction for the s18 offence would seem likely.

Essay Question

Explain the non fatal offences against the person that are found at common law.

Answer

This question needs a detailed discussion of the two common law non fatal offences against the person, assault and battery.  The classification of both offences as summary crimes – triable in the magistrates court only – and the penalty upon conviction of up to six months imprisonment and/or a fine, are contained in s39 of the Criminal Justice Act 1988.  The actus reus of assault is defined in the case of Fagan as ‘any act that causes another to apprehend immediate, unlawful, personal violence.’  These elements of the offence need to explained in turn.  The word ‘apprehension’ does not mean the victim has to be fearful of the violence, just that he believes the violence is about to happen.  The violence he apprehends must be ‘immediate’.  Case law has defined this element generously and it does not mean that the violence has to happen in the next few moments. As demonstrated in the case of Lewis, it means the violence must happen in a relatively short space of time.  The violence also has to be ‘unlawful’.  This means that lawful violence, such as that in a case of self defence, cannot form the actus reus of assault. It is important to note that there is no need for the actual violence to happen. The mens rea of assault is defined in the case of Venna – intention or recklessness that another should apprehend immediate, unlawful, personal violence.  Intention here can either be direct, or oblique and the recklessness requirement is for Cunningham recklessness, a subjective test.   If the victim is actually subject to any force, however slight, a charge of battery may be appropriate.  The definition of battery comes from the case of Faulkner v Talbot – ‘any intentional or reckless touching without the consent of that person and without lawful excuse.’  The touching can be direct or indirect as illustrated by the case of Haystead v DPP.  As in the actus reus of assault, the force must also be unlawful, so acting in self defence or for a police officer to make an arrest cannot form part of the actus reus of battery as these are examples of lawful force.  Note also that the force has to be unwanted, so the consent of the victim is a defence to a charge of battery.  In certain situations, such as walking in a busy street, or in a packed concert hall, a person is held to have consented to the natural jostling that will occur by virtue of the situation. The mens rea of battery is intention to apply unwanted, unlawful force, or being reckless as to whether the force was unwanted.

Chapter 8

Problem question

Steven meets  a man called Robert at the local gym.  They go out for coffee a few times, and then Robert invites Steven to a night club.  They both have a couple of drinks and dance until early in the morning.  Then Robert asks Steven to come home with him, and they both get into a taxi.  On the way home, they kiss and cuddle, and when they get to Robert’s house they have coffee and chat for a while.  Robert then says he is tired and is going to bed.  After a few moments, Steven follows Robert to the bedroom, gets into bed and has sex with Robert, who does not protest.  The next morning Robert goes to the police and accuses Steven of rape.  Steven does not deny that sex took place, but says he thought Robert was consenting.

Advise Steven.

Answer

Rape is defined in s1 of the Sexual Offences Act (SOA) 2003.  The Actus Reus of the offence is penetration of the victim’s vagina, mouth or anus with the defendant’s penis, without consent.  The mens rea of the offence is that the penetration must be intentional, and there must be no reasonable belief in the victim’s consent.  A man can be a victim of rape since the Criminal Justice and  Public Order Act 1994.  There seems little doubt here that intentional penetration did take place  and the case will be decided on Robert’s consent and, importantly, Steven’s reasonable belief in the consent.  The SOA 2003 defines consent in s74 as ‘agrees by choice, and has the freedom and capacity to make that choice’.  Here it seems that Robert did not consent, but it appears that non of the rebuttable or irrebuttable  presumptions under s75 or 76 are applicable.  If Robert has not consented, the issue of Steven’s reasonable belief is the final element of the crime to be examined.  The jury must ask themselves two questions, did the defendant believe the victim was consenting?  This is a subjective test.  Here the answer to this question is yes, Steven did believe that Robert was consenting.  The second question is, was that belief reasonable?  This is an objective test, but s1(2) of the SOA 2003 states – ‘Whether belief is reasonable is to be determined having regard to all the circumstances..’  In this case the jury would look back at the context in which the sex took place, and it may be thought that in these circumstances, with the developing relationship, the invite home, the sharing of a bed and the lack of protest from Robert at the time, may be sufficient for Steven to have a reasonable belief in Robert’s consent and Steven would not be guilty of rape.

Essay question

Discuss the issue of consent in sexual offences as provided for under the Sexual Offences Act 2003.

Answer

Consent is of the highest importance in the prosecution of sexual offences, as in most cases, the lack of consent is the single issue that turns a usually loving act into a serious criminal offence.  It is surprising then, that prior to the Sexual Offences Act (SOA) 2003 there was no attempt to define consent in statute.  In the SOA 2003 consent is defined in s74 as ‘ a person consents if he agrees by choice, and has the freedom and capacity to make that choice.’    This seems straightforward, but a question must arise as to what is meant by ‘freedom and capacity’.  An addict desperate for money for their next fix can hardly be said to be making a free choice if they have sex for payment.  A further problem may arise with this definition in the situation where one or both of the parties involved have been drinking or taking drugs.  Case law such as Bree holds that even drunken consent is true consent, but if an individual was so intoxicated they had lost their capacity to consent, then they could not be consenting.  However the issue of drunken consent is not fully addressed in the SOA 2003 and is potentially problematic. 

The SOA 2003 gives further assistance to juries over the issue of consent by laying down situations where there will conclusively not be consent.  These are covered by s76, and are where the victim is deceived as to the nature and purpose of the act, and where the defendant impersonated a person personally known to the victim.  In these situations, there will be no consent and no reasonable belief in consent.   S75 gives another six situations where there will be an evidential presumption that there was no consent or reasonable belief in consent.  This presumption can be easily overturned by the presentation of evidence of the defendant’s reasonable belief in the victim’s consent, but s75 is still a valuable tool for the jury and helps to clarify the issue of when consent should be held to be present.

Overall, there are still problems with the definition of consent in sexual offences, particularly as regards intoxication, but the Sexual Offences Act 2003 is a real step in the right direction, with the first real definition of consent in English law and the conclusive and evidential presumptions.

Chapter 9

Problem question

Paul goes into a shop and sees a  very expensive toaster that he would like to have, but cannot afford.  He swops the price ticket on the toaster with a cheaper one and puts the toaster in his basket.  On his way to the checkout he picks up an MP3 player and puts it into his pocket, meaning to steal it.  However, he notices a woman watching him, and thinks she may be a security officer.  He puts the MP3 player back on the shelf and goes to the checkout, where he pays the reduced price for the toaster. 

Is Paul guilty of the theft of the toaster and/or the MP3 player?

Answer

Theft is a statutory offence under s1(1) of the Theft Act (TA) 1968.  To be guilty of theft, there must be the dishonest appropriation of property belonging to another with the intention to permanently deprive the other of it.  This breaks down into the actus reus of appropriation of property belonging to another and the mens rea of dishonesty and intention to permanently deprive.  All five of these elements have to be present for theft to be proven.  Beginning with the toaster, this will be property as defined by s4 of the TA, and it belongs to another as the shop has ‘possession and control’ of it, as defined in s5 TA. S3 TA 1968 defines appropriation as ‘any assumption of the rights of the owner’.  The case of Morris, with similar facts to this situation, held that it was one of the rights of the owner to decide the price of the goods, and changing the price tickets on goods amounted to appropriation.  The actus reus of theft is therefore present.  As Paul intends to take the toaster home and use it, he clearly intends  to permanently deprive the shop of  it.  It just remains for the jury to decide if Paul has been dishonest.  The application of the Ghosh test would be used to establish this.  The jury would ask if Paul’s action was dishonest according to the ordinary standards of reasonable and honest people, and did Paul realise that his action was dishonest according to those standards?  In this case it is fairly likely that the answer to both of these questions would be yes, an Paul would be found to be dishonest, and therefore guilty of theft, as all five elements are present.

When Paul picks up the MP3 player he has appropriated property belonging to another, so the actus reus of theft is present as explained above.  As his mental state at this time is also dishonest – he intends to steal the item – and he intends to permanently deprive the shop of the MP3 player, all five elements of theft are present at this point.  Paul has already ‘stolen’ the MP3 player, even though he has not removed it from the shop.

Essay question

Explain and discuss the problems which have arisen with the definition of the elements of the crime of theft under s1(1) of the Theft Act 1968.

Answer

Section one of the Theft Act 1968 defines theft as the ‘ dishonest appropriation of property, belonging to another, with the intention of permanently depriving the other of it.’  This breaks down into an actus reus requirement of appropriation of property belonging to another, and a mens rea requirement of intention to permanently deprive and dishonesty.  All five of the elements are required, as held in the case of Lawrence.   When the Theft Act 1968 was drafted, replacing the outdated and confusing Larceny Act 1916, it was intended to be a clear and easily understandable statute, with everyday definitions.  However the definition of the terms in the Theft  Act (TA)1968 have been problematic.

Appropriation is defined in s3 of the TA 1968 as ‘an assumption of the rights of the owner’.   After the case of Morris it was held that any single right of the owner was sufficient for an appropriation to have taken place.    The case of Gomez decided that the consent of the owner is immaterial to the fact of whether or not an appropriation has taken place.  This widened the definition of appropriation considerably.  The definition was widened again after the case of Hinks, where it was held that even a validly given gift could be said to be appropriated.  It now seems that whatever anyone does to anyone else’s property, with consent or not, is appropriation for the purpose of s1 of the TA 1968. 

Property is defined in s4 of the TA 1968 and covers, money, real and personal property, and tangible and intangible property.  Information is not property, following the case of Oxford v Moss, and nor are such things as wild animals, corpses, and electricity.

The definition of ‘belonging to another’ in s5 of the TA 1968, is when something is in the ‘possession or control’ of another.  This again is a wider concept than simple ownership, and means it is possible to be charged with stealing one’s own property, as in the case  of Turner.

The AR of theft is therefore very wide indeed, something we all do dozens of times a day when we borrow a friend’s book, or take an item from the shelf in the supermarket.  As a result of this, the mens rea element of the offence is often crucial in deciding who has committed the crime of theft or not.

Intention to permanently deprive is defined in s6 of the TA 1968.  The section is in two parts, which again broaden the idea of what ‘permanently deprive’ will mean.  The first part states that a permanent deprivation will occur when a person uses property which he ‘treats as his own to dispose of, regardless of the other’s rights.’  In the case of Lavender, the words ‘dispose of’ was held to mean ‘ deal with’, so again, this is a wider definition than might first be supposed.  The second part of s6 makes ‘lending or borrowing for a period of time or in circumstances equivalent to an outright taking’ the same as permanent deprivation.  This might be keeping someone’s ticket for a concert until after the date of the show and then letting them have the ticket back.  The ticket is now useless, all it’s goodness and value are gone.

The concept of dishonesty is not defined in the TA 1968 except in the negative.  S2 states that a person is not dishonest if they honestly believe that they had the right to the property in law, that they would have had the consent of the owner of the property, had the owner known of the circumstances, or if they could not have found the owner of the property by taking reasonable steps.  Outside of these limited circumstances, the definition of dishonesty is left to the common law and is defined in the case of Ghosh.  This case puts forward a two stage test to be presented to the jury where the defendant claims he was not dishonest.  Was the defendants action dishonest according to the ordinary standards of reasonable an honest people?  If so, did the defendant realise that reasonable and honest people would regard what he did as dishonest?  If the answer to both of these questions is yes, the jury may find that the defendant is dishonest.

The problems here are obvious.  With the AR of theft so easy to commit, the accurate definition of dishonesty is very important.  The Ghosh test bases this definition on the shaky foundation of an ‘honest and reasonable’ person.  This concept has been widely criticised as unworkable and capable of delivering inconsistent verdicts, a no-one really knows what an ‘honest and reasonable person’ actually is.

The hope of the drafters of the TA 1968 that it would be a clear and precise statute has not been met.  The definitions of the elements of theft that have developed through case law have become either overbroad or unworkable.  There have been consistent academic calls for a statutory  definition of  dishonesty, to at least clarify the MR requirement, but nothing so far has been forthcoming, so juries are forced to continue to struggle with the Ghosh test, and this is unsatisfactory.

Chapter 10

Problem question

Judy  and Ajay decide to burgle  Tony’s  house.  They  plan to go to the house next Sunday evening, because Tony always goes to the cinema on Sunday evening.  Judy is concerned that they will not be able to get away afterwards, so she asks her friend Erin if she can borrow Erin’s car on Sunday evening.  Erin says, ‘OK, why do you need it?’  Judy replies ‘I want to go and visit my Mum, and I don’t like to walk back in the dark.’  Ajay thinks he would like to take a weapon with him on the burglary, in case of trouble, so he contacts his friend Barry and asks to borrow his gun.  He tells Barry that he is ‘going on a job’ and wants to feel in control.  Barry lends him the gun, and says to Ajay, “Hope it goes well.  Do this job right and we could do another one together.  Think of the easy money.”

On Friday evening, Judy is knocked over by a man on a bicycle, and although she is not badly hurt, she has a broken ankle and the burglary does not take place.  Advise Judy, Ajay, Erin and Barry of any crimes they may have committed.

Answer

When Judy and Ajay  plan to burgle the house, they commit a criminal conspiracy under s1 Criminal Law Act 1977.  They have agreed to a course of conduct, which, if carried out according to their intentions, will lead to the commission of a criminal act by one or more of them.  Once the plan in agreed, there is no defence of withdrawal, so the fact that the burglary does not take place does not matter.  The actus reus and mens rea of the crime are already in place. 

Erin could be guilty of an offence of assisting or encouraging crime under s44 of the Serious Crime Act 2007.  She has clearly done an act which is capable of assisting the commission of the crime, and she has done it intentionally.  However she has no intention of assisting the crime, as she does not know about it.  Therefore Erin has no liability for a criminal offence.

Barry could also be guilty of the offence under s44 of the Serious Crime Act 2007.  He has intentionally done an act – lending the gun – capable of assisting the crime of burglary, and he intends the loan to assist the crime.  If Barry believes that Ajay will commit the burglary with the relevant mens rea for burglary, then the crime is complete.  Barry could be guilty of a second charge of encouraging the burglary under s44 by his words to Ajay.   As the point of the inchoate offences is to convict those preparing to commit crimes and those who help them, the fact that the crime does  not take place does not matter.

Essay Question

The offence  of criminal attempt in the Criminal Attempts Act 1981 continues to be problematic for courts and prosecutors.  Explain the actus reus and mens rea of the offence, using case law.

Answer

Criminal attempt is charged under s1 of the Criminal Attempts Act 1981 (CAA 1981)  There is no crime of ‘attempt’ per se.  The charge must be linked to a substantive crime, such as murder or theft.  S1 of the CAA 1981 states that,

‘If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence’.

From this, it can be seen that the mens rea of an attempted crime is intention only.  Even a crime that can be actually committed with a reckless mens rea, has to have intention for its ‘attempted’ liability. Case authority for this is the case of Morgan.  This is relatively straightforward, but it is the actus reus of attempt which can make the outcome of cases hard to predict.  The actus reus of attempt is an act which is ‘more than merely preparatory’ to the commission of the full offence.  The problem is that there is no clear definition of when this point is reached.  The courts have tended to decide on a case by case basis.  For instance in the case of Geddes, a man who was found in the toilets of a school with a rucksack containing rope and tape was found to be preparing to commit the crime of kidnap, and as such had not done anything that was ‘more than merely preparatory’.  Therefore he could not be guilty of attempted kidnapping.  Similarly in the case of Campbell, a man found outside a Post Office carrying a gun with a demand note in his pocket was held not to be guilty of attempted robbery because he had not gone beyond preparing for the crime.  However, in the case of Jones, a man was found to be guilty of attempted murder when he jumped into a car and held a gun to another man’s head.  It was held that he had moved beyond preparing for the crime and was in the act of committing the crime itself.

The actus reus of an attempted crime is vague, but it may be deliberately so.  The flexibility of the definition enables juries to make a decision based on the particulars of the case before them, rather than being forced to follow a rigid legal definition.