Chapter 5

Orwina is a drug addict and is continually taunted for being a redhead by Albert. She stabs Albert in a fit of rage. Albert dies. Would this amount to provocation for the purposes of the Homicide Act 1957?

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Answer

Under Smith, the fact that she is a drug addict would be a characteristic that would be taken into account when determining the identity of the reasonable man (for deciding whether the reasonable man would have lost his control the way Orwina did). The taunts would probably satisfy the gravity of the provocation. Under Holley the reasonable man is only endowed with the characteristics of the age and sex of the defendant. The Coroners and Justice Act 2009 reflects the decision in Holley. Orwina may also be able to argue, under s 55(4)(a) that her loss of self-control was attributable to things said which were of an extremely grave nature and caused her to have a justifiable sense of being seriously wronged.

Chapter 7

On the spot question

Sahid is walking along the street when his friend, Will, comes along and hits him on the back of the head.  Is this an assault?

(Remember the legal definition of the word.)

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Answer

A criminal assault has a specific legal definition.  In order for the offence to be committed, all the actus reus and mens rea elements have to be present.  The actus reus of assault is found in the case of Fagan – Any act which causes another to apprehend immediate, unlawful, personal violence.  The mens rea of assault is intention to cause another such apprehension, or recklessness as to whether that apprehension was caused, as defined in the case of Venna.  Apprehension carries its ordinary English meaning of ‘seeing something is about to happen’.  As Sahid is hit from behind, he has no apprehension of the violence and therefore the actus reus of assault is not present.  There is no assault here.  A better charge may be for battery. 

On the spot question

Rose is devastated when her boyfriend Kenny dumps her.  Rose sends letters and emails to Kenny, pleading with him to get back with her, sometimes dozens a day.  She also sends flowers, bottles of his favourite wine and designer clothes which she thinks he will like.  When she begins to wait outside his house to beg him to go out with her again, Kenny speaks to his doctor.  He is very anxious and unable to sleep – he is also afraid to go outside in case Rose is waiting for him.  The doctor gives Kenny anti-depressants and arranges an appointment with a psychiatrist.  Is Rose guilty of an offence under the Offences Against the Person Act 1861?

Tip: Think about all the elements of the offence before you decide!

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Answer

At first sight this may seem to be an example of psychological harm forming the actus reus for a charge of ABH under s47 or GBH under s20 as in the cases of Ireland and Burstow.  In these cases it was decided that psychological harm was ‘bodily’ harm for the purpose of these offences provided that the harm resulted in a medically diagnosed mental illness.  Kenny’s depression would amount to this, so the actus reus of one of these offence would seem to be made out, depending on how severe the harm was.  The mens rea for either s47 or s20 is intention to cause the harm or recklessness as to whether or not the harm is caused.  This is subjective recklessness, which means that Rose must foresee the risk that Kenny will be harmed by her actions, and go on to do them anyway.   It is unlikely that Rose intends to harm Kenny, she is trying – however misguidedly – to profess her love for him.  It is also unlikely that Rose foresees a risk of harm so that she can be called reckless. She is, after all, trying to make him happy with her gifts and make him understand how much she wants him back.  With no mens rea, there can be no crime, so it would appear that there can be no charge against Rose, irrespective of the harm caused to Kenny. 

Chapter 8

On the spot question

Jon is married to Debbie.  Jon threatens to slap their three year old daughter if Debbie does not have sex with him.  Frightened, Debbie agrees.  Is Jon guilty of rape?

(Tip - consider s76, then s75 and then s74).

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Answer

At first sight it seems that Jon cannot be guilty of rape as Debbie has agreed to have sex with him, and he is her husband.  It must be remembered that since the case of R v R in 1991, a husband is perfectly capable of raping his wife.  Although it appears that Debbie has consented to the intercourse, it is necessary to see what the Sexual Offences Act 2003 has to say about the  situation she was in at the time.  As a criminal offence, the actus reus and mens rea of rape must be present.  There seems little doubt that there was intentional penetration of Debbie’s vagina with Jon’s penis, so Debbie’s consent and Jon’s reasonable belief in her consent are the only issues to be discussed.  S76 of the SOA 2003 gives two situations where there will be no consent and no belief in consent, but neither of these situations would appear to apply to Debbie and Jon.  S75 gives a rebuttable presumption under s75(2)b in the circumstances where the complainant (Debbie) was caused to fear that violence would be used against another person (the daughter).  In this situation, the presumption would be that Debbie did not consent to sex and Jon had no reasonable belief in her consent, unless Jon could present some evidence to the contrary.  S74 gives a definition of consent,  ‘if he agrees by choice and has the freedom and capacity to make that choice.’  Although Debbie, agrees to have sex with Jon, it could be argued that her decision was not made freely as she was frightened for her daughter’s welfare.  The case of Olugboja makes it clear that agreement to sex through fear is not true consent.  It seems likely that Jon will be guilty of rape here.  Debbie has not given her consent to the intercourse, and it is unlikely that Jon has a reasonable belief that there was.

Chapter 9

On the spot question

Jamil asks to borrow a friend’s textbook to look up a case.  The friend agrees and Jamil picks up the book and open it.  Has Jamil appropriated the book?

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Answer

Appropriation of property belonging to another is one of the actus reus requirements of theft.  Appropriation is defined in s3 of the Theft Act 1968 as ‘an assumption of  the rights of the owner.’  In the case of Lawrence, it was held that the consent of the owner is immaterial when deciding if appropriation has occurred.  This was confirmed in the case of Gomez.  Applying this to Jamil, the fact that he asks his friend for permission to borrow the book will not be relevant, so Jamil has interfered with the rights of the owner, by using the book to look up the case.  He has therefor appropriated the book.  Don’t forget this does not make him guilty of theft.  Appropriation is only one part of the actus reus of theft.

On the spot question

Marie is thinking of dumping her boyfriend, Pete, but he hints he has a lovely birthday gift for her.  Marie waits for her birthday and receives a brand new sports car.  The next day Marie dumps Pete.  Could Marie be guilty of theft of the car?

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Answer

In order to be guilty of theft, as defined in s1 of the Theft Act 1968, Marie must have dishonesty appropriated property belonging to another with the intention to permanently deprive the other of it.  The car is property, which originally belonged to Pete and Marie has no intention  of giving it back, so she intends to permanently deprive.  The case of Hinks is authority for the fact that a valid gift – as this seems to be – can amount to appropriation.  Therefore the only decision for the jury, which will determine Marie’s guilt or otherwise, is whether Marie is dishonest.  If the jury find that she is, she will be guilty of the theft of the car.

On the spot question

Sara, a medical student, is dissecting a corpse that has been donated to her teaching hospital.  In order to work on it further, she removes the preserved foot from the corpse and takes it home with her.  Could Sara be charged with theft of the foot?

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Answer

This question concerns the definition of ‘property’ in the Theft Act 1968 and case law.  A corpse is not property, unless or until it is subject to the application of human skill to reduce it into possession.  As the foot has been preserved, it is likely that this would make it property capable of being stolen, after the case of Doodwarde v Spence. It seems that Sara has appropriated the property, and it belongs to another – the hospital to which it was donated.  Don’t forget that the men rea must also be present, so Sara must intend to permanently deprive the hospital of the foot, and be dishonest.  It might be that the jury will not find Sara dishonest.

On the spot question

P’eta takes an umbrella from a stand in a restaurant.  She mistakenly thinks it I her umbrella, but in fact it is a similar one which belongs to Laura. When she realises her mistake, P’eta decides to keep the umbrella.  Is P’eta guilty of theft?

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Answer

When P’eta originally picks up the umbrella in the restaurant, she has appropriated property belonging to another, with intention to permanently deprive.  The only element of theft missing is dishonesty, as she thinks the umbrella is her own.  The case of Lawrence is authority for the fact that all five elements of the offence must be present for a guilty verdict.  S2(1)a of the Theft Act 1968 states that P’eta will not be dishonest if she thinks she has the right in law to appropriate the property.  If she thinks the umbrella is hers, this will apply to P’eta.  However, once P’eta realises the umbrella is not hers and decides to keep it, it might be thought she is dishonest.  S2(1)c of the Theft Act 1968 states that there will be no dishonesty if there is an honest belief that the owner of the property cannot be found by taking reasonable steps.  It may be that P’eta honesty believes that it would be pointless to take a cheap umbrella back to the restaurant as either no-one would claim it, or the owner has taken her umbrella and will not notice the difference.  If this is her genuine belief she will not dishonest, and there will be no theft.  

Chapter 10

On the spot question

Bill needs money.  He takes Jeremy’s bank card one evening and goes along to the cash machine.  There is a person in front of him using the machine, so Bill waits for his turn.  Then he puts the bank card into the slot and prepares to tap in Jeremy’s PIN code.  At this point Bill is arrested.  Could Bill be liable for attempted theft of Jeremy’s money? (Theft of the card is already complete)

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Answer

Clearly theft itself has not yet occurred here, as in spite of Bill’s dishonesty and intention to permanently deprive Jeremy of the money, he has yet to appropriate the property (money) belonging to another (Jeremy).  As Bill intends to steal the money,  the mens rea of attempted Theft is complete.  The actus reus of  an attempted crime under the Criminal Attempts Act 1981 is performing an act which is ‘more than merely preparatory to the commission of the full offence’. Whether this point has been reached or not is up to the jury to decide as a matter of fact.  It could be argued that Bill still has to tap in the PIN, wait for the PIN to be accepted, reject the offer of another service before he can finally take the money, so he has not done more than prepare for the offence.  It could equally be argued that once the PIN is entered, it will be a matter of seconds before the money can be taken and if the law cannot step in at this stage, then the law of attempt is seriously defective.  Frustratingly, the answer to this question is far from clear, which shows one of the major problems in the prosecution of criminal attempt.   

On the spot question

James announces loudly to a room full of people that he intends to steal money from the local bank at lunch time. Has James committed a criminal offence?

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Answer

At this point there is no offence.  There is no conspiracy because a conspiracy needs an agreement between two or more people, and James is a long way from doing an act which is ‘more than merely preparatory to the commission of the full offence’, the requirement for an attempted crime.

On the spot question

James then puts on a disguise and writes a note demanding money and walks down the High Street towards the bank.  Has James committed a criminal offence? (Remember the case of Campbell?)

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Answer

Using the case of Campbell as authority, it is unlikely that James has committed an act that is more than merely preparatory to the commission of the full offence as required under the Criminal Attempts Act 1981.  This means that in this situation there is no criminal offence that James could be charged with.