Criminal law practice exam 2018, questions and answers PDF

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Criminal law practice exam 2018, questions and answers...

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INSTRUCTIONS FOR CRIMINAL LAW STUDENTS: The exam will last for 2 hours. The paper contains 2 sections. You must:  

Answer 1 question from Section A Answer 1 question from Section B

You must answer a total of TWO questions 

All questions will carry equal marks

INSTRUCTIONS STUDENTS:

FOR

BL2295

PRINCIPLES

OF

CRIMINAL

LAW

The exam will last for 2 hours. The paper will contain 2 sections. You must:  

Answer 1 question from Section A Answer 1 question from Section B

You must answer a total of TWO questions All questions will carry equal marks

Section A Lionel is angry at Cristiano, and his friend Karim, for ‘chatting up’ his girlfriend in a nightclub. Lionel decides to confront Cristiano and Karim to ‘chat it out – man to man’ at the gym they all attend regularly. However, very quickly, an argument ensues. At some stage during the argument, Cristiano picks up a metal dumbbell and waves it at Lionel. Lionel manages to knock the dumbbell out of Cristiano’s hand. At this point Lionel ‘snaps’ and in a sudden fit of anger he picks up the dumbbell and hits Cristiano over the head with it numerous times. He then grabs a metal bar from the rack and strikes Karim multiple times to his head and body. At this point, fellow gym members Gareth and Luis manage to restrain Lionel

Cristiano is dead. However, Karim is still alive. Although Luis has a first-aid certificate, he panics when he sees all of the blood covering Karim. Gareth calls an ambulance, but is advised that, due to heavy traffic, it will take at least thirty minutes to arrive. Fearing this is too long to wait, Gareth decides to drive Karim to the hospital himself. He picks Karim up but, unfortunately, gets his feet caught in skipping ropes left on the gym floor. Consequently, he trips and drops Karim. When Gareth gets Karim to the hospital, he has a brain scan. Dr Zinedine, a junior doctor, misreads the scan and wrongly decides that Karim needs urgent brain surgery. Karim lapses into a coma during the operation. Doctors subsequently indicate there is no chance of recovery. With Karim’s family’s agreement, the doctors turn off the machines that have been keeping him alive. Consequently, Karim dies.

Lionel is charged with the murder of both Cristiano and Karim. Assess Lionel’s potential criminal liability in relation to both victims.

Stage 1 To begin with, the question requires the student to identify the elements of murder: 

AR = the unlawful killing of a human being under the Queen’s Peace (Coke’s Institutes).



MR = malice aforethought (intention to kill or intention cause GBH: ‘grievous’ means serious R v Moloney applies)

Stage 2 MR (intention): Has Lionel formed the necessary intention? If so is this direct or oblique intention? This is likely to be direct intention as the prohibited consequence (Cristiano’s and Karim’s deaths) are quite clearly the purpose or aim of Lionel’s actions.

However, to demonstrate knowledge, it would be prudent for students to still set out the test for oblique intention (although this doesn’t apply in this case). If it did apply, it would be as follows: Cristiano’s and Karim’s deaths are a virtual certainty as a result of Lionel’s actions and Lionel has appreciated that to be case (R v Woollin applies) Stage 3 Next we must deal with causation. Both factual and legal causation tests must be applied. Factual causation: But for Lionel’s acts Cristiano and Karim would not have died (R v White). Lionel is the factual cause of death. Legal causation: Provided Lionel’s act was more than a minimal cause of the deaths, it need not be the sole cause (R v Kimsey [1996] Crim LR 35 and R v Pagett)

Stage 4 Students should then consider potential NAIs.

Luis –is a trained, rather than professional first-aider. There is no indication in the facts that this ‘training’ relates to his job. Luis has omitted to act. Is there liability? As a general rule of thumb, there is no good Samaritan principle in English law. Luis is not required to act unless he owes a duty of care to Karim. This would only arise in the following circumstances: (i) contractual; (ii) assumption of care; (iii) duty arising out of relationship; (iv) starting a chain of events; (iv) statutory. It doesn’t appear, on the facts, as though any of these apply to Luis. Gareth dropping Karim: This should be considered in light of the facts in R v Smith. Clearly, in applying this case, Gareth dropping Karim would not break the chain of causation.

Dr Zinedine’s treatment of Karim: Dr Zinedine is a junior doctor. Pursuant to

Wilsher v Essex Area Health Authority [1987] QB 730 (a tort case) the

standard of care to be expected from a doctor is to be determined by considering the nature of their post and the tasks which it involves. Thus, Dr Zinedine’s post must be distinguished from his rank or status: If the junior doctor is performing a role normally performed by someone more senior, the junior doctor will be judged by the same standards as their more senior colleague. You would be expected to apply and discuss the cases of R v Jordan and R v Cheshire. In applying these you may or may not decide that Dr Zinedine’s treatment has broken the chain of causation (no wrong answer so long as answer is based on relevant authority).

R v Jordan: ‘palpably wrong’ R v Cheshire: death attributable to D’s actions. See Beldham LJ judgment: Directing the jury where they have to consider whether negligent treatment caused death as opposed to injuries inflicted by D: “...Even though negligence in the treatment of the victim was the immediate cause of the his death, the jury should not regard it as excluding the responsibility of the accused unless the negligent treatment was so independent of his [the defendant’s – in this case Lionel’s] acts, and in itself so potent in causing death, that they regard the contribution made by acts as significant.”

Fourth: Turning off the life support machine does not break the chain of causation (R v Malcherek and Steel) Stage 5 It is likely you’ll find that the chain of causation has not been broken (even if you do, you should still go through the following stages). Thus, Lionel is liable for the deaths subject to any partial defences.

Outline what partial defences are available (provocation/Loss of self-control, diminished responsibility, suicide pacts) and their effect (a charge of murder is substituted for one of manslaughter). What partial defence could be applicable here?: loss of self-control pursuant to s54(1) of the Coroners and Justice Act 2009. Set out s54(1):

(1) Where a person (“D”) kills or is a party to the killing of another (“V”), D is not to be convicted of murder if— (a)D's acts and omissions in doing or being a party to the killing resulted from D's loss of self-control, (b)the loss of self-control had a qualifying trigger, and (c)a person of D's sex and age, with a normal degree of tolerance and selfrestraint and in the circumstances of D, might have reacted in the same or in a similar way to D. Deal with (a) to (c) in turn, as follows: 54(1)(a): Under this provision the loss of self-control does not need to be sudden. It is enough that Lionel anticipates an attack from Cristiano and Karim, loses self-control and then kills them. In this instance there is no evidence of a ‘plan’ or considered desire for revenge on Lionel’s part: R v Jewell. Therefore, this appears to be satisfied.

It also appears that the qualifying triggers ( s54(1)(b)) are satisfied (at least in relation to Cristiano, but maybe not Karim). However, this requires consideration of s55 as loss of self-control may only be relied on where it is attributable to one or both of the qualifying triggers set out in this section: S55(3): Lionel’s fear of serious violence from Cristiano against him which resulted in his loss of self-control: R v Ward and/or…(s55(3) wouldn’t apply to Karim, however s55(4)(a) and (b) may apply to Karim).

S55(4) (a) and (b): Cristiano’s use of the dumbbell (and perhaps Cristiano and Karim chatting up Lionel’s girlfriend) amounted to circumstances of an extremely grave character giving Lionel a justifiable sense of being seriously wronged: R v Lodge

In fact, both triggers could be operating together (s55(5)): R v Dawes and R v Lodge.

S54(1)(c): Lionel appears to be a person with a normal degree of tolerance and self-restraint: Burden of proof is on the prosecution to disprove beyond reasonable doubt that ‘a person of Lionel’s sex and age, with a normal degree of tolerance and self-restraint and the circumstances of Lionel, might have reacted in the same or similar way’. This is an objective test.

Section B R v Dudley and Stephens (1884-85) LR 14 QBD 273 seemed to establish that necessity is no defence to murder. Discuss whether more recent case law has changed this position.

Students should answer the question by applying recent cases that have dealt with this issue. Answering this question should involve an introductory discussion of R v Dudley and Stephens. Subsequent case law on this area can be dealt with briefly (for example F v West Berkshire HA). However, the student should refer in detail to Re A (the judgments of Brooke, Ward and Walker LJ). This question requires analysis of the interpretation of their Lordships as to the context in which necessity exists (and does not exist as a defence) and cases such as Shayler and Nicklinson (see below).

R v Dudley and Stephens Lord Coleridge: necessity is no defence to murder.

Re A: The narrowest interpretation was adopted by Walker LJ. His Lordship stated that duress of circumstances is the third or residual category of necessity with self-defence and duress by threats. His Lordship was only prepared to extend the defence of necessity to these unique circumstances (i.e conjoined twins). A slightly wider interpretation of this decision is that this is an extension of the medical necessity principle. Ward LJ limited his judgment to cases where there was a conflict between a doctor’s duties. A doctor is under a legal duty to do what is best for their patient. In this case there were conflicting duties owed to the twins and, in exercising their duty, the doctors had to make a choice of the lesser of 2 evils. Even this narrower interpretation involves a significant extension of the law in that it allows doctors to kill their patients in these tightly-defined circumstances.

The bolder interpretation is that adopted by Brooke LJ which can be seen as endorsing a true defence of necessity cut free from its theoretical links to duress. Brooke LJ, when dealing with necessity as a defence for murder, was careful to limit his judgment to the killing of those already designated for death.

Students should conclude with answering whether Re A changes the rule in Dudley and Stephens that necessity is no defence to murder.

They may come to the conclusion that arguably it does not (at least to a degree) for the following reasons: a. Re A is not a criminal case, but a civil action by a hospital seeking a declaration to perform an operation. b. There was no charge of murder. c. It is a decision of the CA Civ Div, which has only persuasive effect on criminal courts.

Students should also refer to:

R v Shayler: D was a former employee of the security service, and faced trial for disclosing information in breach of the Official Secrets Act 1989. He contended, inter alia, that the defences of duress and necessity were available to him on the basis that the disclosure was necessary in the public interest to avert damage to life and limb or serious damage to property, or to expose serious and pervasive illegality.

CA held ([2001] 1 WLR 2006 (CA)): Duress and necessity were one and the same defence, but D could not rely on duress in any event as he was not in a position to identify any external action which created an imminent threat to life and limb of members of the general public. The CA’s decision was the subject of academic criticism (see Gardner, Direct action and the defence of necessity, [2005] Crim LR 371) HL held ([2003] 1 AC 247 (HL)): On appeal to the HL their Lordships refused to consider the defence at all, and Lord Bingham specifically said he would not endorse all that the CA had said on the matter. Because the defence was not available on the facts, anything said would have been obiter, but the HL missed an opportunity to clarify whether the defence does actually exist, and if so, what its boundaries might be. R (on the application of Nicklinson v Ministry of Justice), and in particular the Divisional Court’s analysis of the Re A judgment. In this case the Divisional Court had an opportunity to clarify the existence and scope of the necessity defence, but declined to do so. Tony Nicklinson suffered from ‘locked in syndrome’. He was seriously physically disabled, but his mental abilities were unimpaired. He wanted to be able to choose to end his life, but his condition meant he was unable to commit suicide. He sought a declaration from the court that, inter alia, the common law defence of necessity was available on a charge of murder, so that anyone who ended his life at his request could not be prosecuted.

Nicklinson submitted that Re A had established that necessity would afford a defence to a doctor who actively caused the death of a patient, provided the doctor was “acting in accordance with the demands of humanity”, and that the defence, ought, therefore, to be available in a case of voluntary euthanasia. However, the Divisional Court distinguished Re A on the basis that it was a case with “highly unusual features” and “highly exceptional facts”. In Re A, it was only Brooke LJ whose conclusions were explicitly based on the availability of a defence of necessity. Walker LJ thought that the doctors who separated Mary and Jodie would also be able to argue lack of causation and lack of intent on the basis that Mary’s death was not the purpose of the operation, and that she would die anyway because her body on its own was not viable. Ward LJ also referred to the possibility that a plea of quasi-selfdefence would be available on the grounds that, in separating the twins, the doctors were removing the threat of fatal harm from Jodie. Conversely, in the case of Nicklinson, if a doctor were to administer a lethal drug to the applicant, there would be no issues of causation, intention or self-defence. The doctor administering the drug would cause Nicklinson’s death with intent to do so and without acting in defence of another. Ultimately, the court in Nicklinson ruled that necessity was not a defence to voluntary euthanasia....