Criminal Law Exam Questions PDF

Preview

Summary

Exams on University criminal law....

Description

Dave and Andy belong to the same gang. One night, in retaliation for an attack on their patch, Dave and Andy go out in search of a rival gang member (Fred) in order to kill him. However, seeing the two coming, and realising their intention, Fred grabs Andy and attempts to use him as a human shield to avoid attack. Dave does not want to harm Andy, but realises that if he shoots him there is a small chance that the bullet will pass through his body and kill Fred. Dave even thinks there is a chance that Andy could survive. Dave shoots, killing Andy and Fred. As Dave returns home, he finds his step-son (Pete) dead. Although Pete had lived alone with Dave for many years, the two had begun to hate each other. In recent months, this culminated in Pete refusing to eat and Dave refusing to feed him. Following medical investigation, it was found that Pete’s death resulted from starvation. Dave was aware that Pete could die in this way and is glad he is dead. Discuss Dave’s potential liability for murder For Dave’s liability of murder to be assessed it is important to consider the elements of the offence of murder. The elements to this offence requires an Actus Reus of any unlawful conduct that causes the death of a person, this can either be an act committed by the defendant or an omission. It is also important that the defendant has the required Mens Rea of murder, which is that they must have an intention to kill the victim or cause GBH. Whilst considering Dave’s liability for these offences, his liability will be assessed on a victim by victim basis. I will begin to assess Dave’s liability for murder of Victim 1 [V1], Fred. It is quite clear that Dave has the necessary Actus Reus for murder of V1, which requires any act or omission causing V’s death, D’s act of shooting the Victim satisfies this requirement. Furthermore, Dave also has the prescribed Mens Rea for this liability of the murder of V1, as it was quite clearly Dave’s intention to kill Fred, which was the result element of the Actus Reus. Despite seeing a small chance of Fred surviving D was still reckless and had a direct intent to kill the victim. As a result of this it is rather apparent that there is no available defences that Dave could rely on in a Court of Law, therefore it is clear that Dave is liable for the murder of Fred. Secondly, and more difficulty is the issues surrounding Dave’s liability for the death of his Andy. Despite this, it is still pretty clear that Dave has the necessary Actus Reus as it is the same act which caused the death of Victim 1, Fred. The act of shooting the victim, therefore Dave satisfies the Actus Reus element for the murder of Andy. However, more challengingly is the issue surrounding the Mens Rea element for this specific murder, obviously it was not the direct intention of Dave to kill Andy, however that was still the outcome of the act. However, despite Dave not necessarily wanting to kill Andy it can be argued that Dave knew that his act would result in the death of Andy and that he would have foresaw it as a virtual certainty, which therefore suggests that Dave had oblique intention to kill Andy, following the rules laid down in regards to Oblique intention in the case of Woollin 1998, this case established the rules on oblique intention which states that the act committed by the defendant would have resulted in a virtual certainty [i.e. the death of Andy], and that the

defendant must have recognised this as a virtual certainty. Quite clearly, Dave recognised that it was highly probable that Andy would die due to his acts therefore suggesting that Dave did indeed have the necessary murder for the death of Andy. Failing this, Dave’s mens rea for the death of Andy could also be found through the principle of transferred malice, as seen in Latimer, which rules that the defendants be liable if the target of their mens rea is not the same target as their actus reus. As a result of this analysis it is quite clear that Dave is also liable for the murder of Andy, as well as the murder of Fred. Finding liability for the murder of his step-child Pete however proves to be most difficult, this is due to the lack of information provided. For example, if, hypothetically, Pete is of such a young age that he is still, legally under a duty of care by Dave he could be liable for his murder. As a result, the murder of Pete could have come through an omission by the Dave – this is where the actus reus of Dave is not actually an act causing the victims death, but an omission from doing something resulting in the victim’s death, for example, starving him by not feeding him. Omissions can most clearly be represented through the case of Gibbins and Proctor, whereby both defendants were liable for murder for breaching their duty of care. If, in the same circumstance Dave has breached his duty of care resulting in on omission, his hatred of Pete could form his mens rea of intention not to do something. Therefore, it is possible that Dave could be liable for Pete’s murder, however this is only providing that Pete is of an age where he is still under a duty of care. Thus I conclude that Dave is definitely liable for the murder of Andy and Fred and no defences apply to him, and that Dave could also possibly be found liable for the murder of Pete too, if a duty of care is found and intention of GBH is found.

The current mens rea for murder is inappropriate, and in need of reform.

The current mens rea of murder has sparked long and lengthy debate in regards to the need for reform. The mens rea of murder requires the defendant to have the intention to kill or cause GBH to another person, this intention can either be direct i.e. the defendant directly intended to kill V, or it can be oblique – i.e. the defendant foresaw that it was a virtual certainty that his or her act would result in the death of V. Issues surrounding the mens rea of murder is largely due to constructive liability approach that is often used in many cases, and the differing views between the current law and Lord Goff’s proposals, as well as the Law commissions recommendations for reform the mens rea for murder. Firstly, a stark and arguably the largest issue with the current mens rea of murder is that it allows for constructive liability. This is where the defendant’s liability is greater and has a lack of correspondence with their mens rea. For example, constructive liability can be seen where the actus reus is the death of a person – i.e. the defendant has caused the death of another, despite their mens rea only being intention to cause GBH, whilst GBH is a most serious offence, it is quite obvious that

it is completely different to murder and raises questions of whether the two should be so closely linked together. For example, as seen in Cunningham 1982, the defendant was charged with murder after killing V by hitting them over the head, despite he death of V not being the intention of the defendant [the intention was GBH], nonetheless they were still charged with murder. Intention to kill and the intention to cause GBH are two very different things, for example, in a hypothetical situation if you compare a defendant who has caused the death of a victim through GBH [quite like Cunningham], and that of a defendant who has maliciously and coldly murdered another for their own gratification or amusement there is quite clearly a difference between the two defendants here. Morally speaking, whilst both acts are clearly very wrong is it not unjust that both defendants are branded as the same: ‘murderers’ despite the intention of both victims being wildly different As a result of this issue with the mens rea of murder a number of reforms have been suggested to improve it. Such reform recommendations have been suggested previously by Lord Goff in 1998. Lord Goff had suggested, much like my hypothetical issue that many people who are branded as ‘murderers’ have not committed the precise act to warrant the title. Therefore, Lord Goff suggests reforming the mens rea of murder to narrow the current law by removing liability where D intends GBH, as opposed to where D intends direct death, however also widening it by finding liability where D is wickedly reckless as to the victims’ death. As a result, excluding those who intend GBH as he believes these defendants a wrongly interpreted as murderers. Goff would also borrow elements of Scottish Law by finding liability where the defendant is wickedly reckless as to death, this would apply not necessarily where D acted with the intent of killing the victim, but where V’s actions showed a complete disregard for the victims’ life. The Law Commission has also put forward a number of recommendations to reform the mens rea of murder. These recommendations call for a new ladder of homicide charges and offences, this ladder contains the traditional first degree where murder, which brings a mandatory life sentence, but only where the defendant has shown a clear intention to kill the victim, and where the defendant kills the victim with the intention of causing a serious injury that carries a serious risk of causing death. The ladder also contains the traditional offence and charge of manslaughter, where the defendant has a defence to murder, which is punished with a discretionary life sentence, the law commission also recommends another category called second degree murder, those defendants that are intended to cause GBH to the victim but the victim dies would fall under this category, this would be punishable with a discretionary life sentence. Similarly to Lord Goff’s recommendations, these mens rea reform recommendations aims to distinguish between defendants that murder with intent, and defendants that do not murder with intent, but still nonetheless satisfy the actus reus of murder, intend to cause GBH and do not have a defence. Arguably, these reforms could lead to the serious misbranding of the term murderer to come to an end, however these mens rea reforms could lead to many inappropriate sentences, for example many defendants who murdered with intent could appeal, stating that they only intended to cause GBH to the victim in hopes of getting a lesser sentence. This could have quite a profound effect in the fact that it could take it more resources during trial and also undermine the justice system by

allowing murderers to slip through the justice system and be convicted for lesser offences. Thus I conclude that whilst it is very clear that there is clear need for reform of the mens rea of murder, particularly due to constructive liability issues, the reform needs to be appropriate and careful in ensuring that the same standard of justice is upheld and that all convictions are safe and appropriate.

Amir and Penny have lived together for 8 years, but their relationship has just ended, after Amir met Lucy at work. Penny has left their home, leaving Amir to

look after their two-year-old child, Dennis. Since leaving she has been feeling very low and has been having difficulties concentrating at work. One day she returns to collect some belongings from the house, and to discuss some financial matters with Amir. She is furious to find Lucy’s belongings in the house, and a mother’s day card from Dennis to Lucy on the mantelpiece. A row breaks out between Penny and Amir, and Amir tells her that he could no longer tolerate her mood swings and her untidy habits, and that Dennis is better off thinking of Lucy as his mother. Penny leaves the house in tears and goes off to try to find Lucy, taking a knife with her. She goes to several places where she thinks Lucy might be, and eventually finds her, after about an hour, outside her office. When she sees Lucy, she runs towards her, stabbing her in the leg. Lucy dies. Discuss Penny’s potential criminal liability for the death of Lucy.

It is clear that Penny has committed an extremely serious offence resulting in the death of Lucy, and therefore the most potential offence for this is a murder conviction. However, whilst discussing this I will also assess the possible partial defences that are available to Penny that could possibly see her charge reduced to that of manslaughter. Penny satisfies the elements for the both the actus reus, through her conduct of stabbing Lucy in the leg, and the mens rea, although it is questionable whether Penny intended to kill Lucy, perhaps more accurately, due to the nature of the attack [stabbing in the leg] Penny had the intent to cause GBH, which still nonetheless, would satisfy a murder or manslaughter conviction. Although, potentially reducing Penny’s sentence to a conviction of manslaughter could be one of two partial defences that she may perhaps be able to rely upon. The first of these partial defences is loss of self control, as defined in the Coroners and Justice Act 2009, particularly S.55 and S.54, which define what loss of self control is and the meaning of a qualifying trigger. The qualifying trigger in this particular circumstance can be found with Amir that Lucy is better off with Dennis [Penny’s child] as his mother, understandably, this is a deeply hurtful remark which could constitute as a qualifying trigger for Penny’s loss of control, which, as described in Jewell 2014 is a “loss of ability to act in accordance to reason”. However, it could be argued that due to the time delay between these comments and Penny’s search for Lucy [Penny had searched several places before finding Lucy], the attack could be considered as more of a revenge attack, and was therefore far too intricate to qualify as a loss of self control act, as Penny would have had time to see reason. Furthermore, it is also very likely that a reasonable person, with similar characteristics to Penny would not have acted in this way, and even if they had loss self control they would have potentially calmed down by the time they had found Lucy and acted in accordance of the Law. Therefore, it is rather unlikely that Penny would be able to rely on this partial defence.

Another partial defence that Penny could rely upon in hope for a manslaughter charge would be that of diminished responsibility. It is mentioned that Penny had been feeling “very low” and had mood swings, potentially, if her mental state was extreme enough it could qualify for clinical depression, which, as a recognised mental condition would satisfy the diminished responsibility defence, as it would clearly show an abnormality of mental functioning, an important feature of diminished responsibility as laid out in Byrne. It is also important to consider Penny’s liability for murder providing that the partial defences fails her. As previously mentioned earlier in this essay, Penny has satisfied the actus reus and mens rea of murder, and arguably, her reliance on the partial defences may not provide a strong case for a defence. For example, in regards to diminished responsibility it is questionable whether just feeling ‘very low’ would equate to depression, the prosecution would suggest that many couples split on bad terms when other sexual partners and children are involved and they do not kill people. Furthermore, I believe that a loss of control would also not satisfy as a defence mainly due to the fact that a reasonable, ordinary person with similar characteristics of Penny would not have acted in the same way as she did. Thus I conclude, Penny is liable for murder.

One of the reasons for replacing the partial defence of provocation with the partial defence of loss of control was to eliminate anger arising from a partner’s sexual infidelity as a ground for reducing murder to manslaughter. Does the loss of control partial defence succeed in this? Previously, provocation came under a partial defence which would often save someone from a murder conviction, reducing their conviction to that of manslaughter. Provocation was often used as a defence particularly due to sexual infidelity cases, where one partner had killed the other after finding out that the other had been unfaithful. However, was met with constant criticism due to the fact that it was seen to be rather sympathetic towards sexual infidelity cases. As a result, reforms came about and the Coroners and Justice Act 2009 was introduced. This essay will explore the impact of this act and how far this new reform has succeeded in eliminating anger arising from a partner’s sexual infidelity as a ground for reducing murder to manslaughter. The Coroners and Justice Act 2009 had the aim of reforming the law of provocation by replacing it with a more justified defence of loss of control. Loss of control now forms one of the three partial defences to a murder charge as the defendant’s loss of control results in their culpability being lower than that of an ordinary person as a result of a qualifying trigger, as stated in section 54 and section 55 of the act. The act came into force as it was found that the old law of provocation was far too sympathetic, especially towards husbands who had murdered their wives after finding out about their sexual infidelity. As a result, section 56 of The Coroners and Justice Act completely excludes and disregards sexual infidelity as a qualifying trigger for loss of control.

However, it is questionable whether this has had the desired effect that it was intended to have. For example, for us to assess its success it is important to assess cases that show its impact. One such case that is good to assess would be the case of Clinton, where a Husband murdered his Wife after she told him about her sexual infidelity and mocked about his suicidal attempts. The defendant had relied on loss of control, which, as a result of the Coroners and Justice Act 2009 was rejected by the court and the defendant was convicted of murder. However, upon appeal, the Court of Appeal ordered a retrial of the case, they stated that the loss of self control could be considered by the jury as sexual infidelity was not the only qualifying trigger which caused him to lose self control. This has resulted in a number of issues concerning just how much of a difference the Coroners and Justice Act 2009 has actually made. Courts now suggest that providing sexual infidelity was not the only qualifying trigger of a defendants’ loss of self control then this loss of self control can indeed be considered. This has raised issues, for example, most complex relationships that are heard in court usually have more issues just than sexual infidelity, therefore most cases that come to court, the defendant can rely on a loss of self control even if sexual infidelity is involved, despite what the Coroners and Justice Act 2009 says, because it will be considered by the jury as a collection of qualifying triggers, rather than just sexual infidelity on its own. Thus I conclude that the partial defence of loss of control does not completely succeed in removing anger over sexual infidelity as a qualifying trigger, as it can be seen in case law [Clinton] that it will be considered, but just not on an individual basis. Therefore, it is arguable that every time sexual infidelity results in a murder, loss of self control could be relied upon under a collective branch of qualifying triggers, possibly undermining the criminal justice system. I think that in the future the law will become even more general, in the fact that there will be a huge decrease in specific loss of self control triggers and more general approach to these triggers that will fall under large categories, just as sexual infidelity is being considered as a general collection of qualifying triggers, providing there are others involved.

Geraldine and Stavros start dating, having previously met through a mutual acquaintance. Stavros has only just moved to England and has no fixed address so Geraldine asks him to move straight into her flat. Within a matter of

weeks Geraldine begins to monitor Stavros ‟ movements, concerned that he might be seeing other women. She starts by checking his mobile phone and Facebook account daily to ensure he is not cheating on her. Convinced he is still having an affair, Geraldine starts to follow Stavros every day when he visits the Job Centre. Stavros notices that he is being watched by someone and begins to feel ...