Criminal MOCK EXAM (Full Paper) SEM 1 2022 PDF

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Criminal Mock Exam(JAN/MAY/JULY INTAKE)Candidates should answer FOUR of the following EIGHT questions.Question 1:Critically evaluate the law relating to criminal liability for omissions.Should there be a general duty to assist persons in peril?To solve this issue, one must first define what constitu...

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Criminal Mock Exam (JAN/MAY/JULY INTAKE) Candidates should answer FOUR of the following EIGHT questions.

Question 1: Critically evaluate the law relating to criminal liability for omissions. Should there be a general duty to assist persons in peril?

To solve this issue, one must first define what constitutes a crime and its aspects, as well as describe the condition of omission liability in order to determine if such an inquisition is warranted and fair.A crime is a transgression committed against the state that is punishable by the state. The prosecution will have to prove the existence and synchronicity of the Actus Reus, or guilty act, and the Mens Rea, or guilty thought, in order to get a conviction.

In most cases, the Actus Reus is established by a positive act that is performed voluntarily and that, in the event of a result crime, causes that outcome. The requirement to show the presence of a positive deed stems from the concept that a person should only be held accountable for what they have done. In state-of-the-art crime, there are two exceptions: being held liable for the actions of others and omission liability.A failure to act is defined as an omission, and the usual rule is that criminal culpability should be imposed only where there is a duty to act. This obligation to act might occur in a variety of circumstances, and the focus of the response is on the fairness of these circumstances.

A statute creates the first occurrence of such a duty. A law is a piece of legislation adopted by parliament that may mandate a person to operate in a specific manner. If a person fails to perform in a way that is required by law (statutory duty), criminal culpability may be imposed as a result of that failure. In R-v-Firth, the defendant was a doctor who neglected to notify an NHS hospital, as required by law, that he was transferring a non-NHS patient to it. As a result of his failure, he was convicted of one of the old deceit offences under Section 2 of the Theft Act 1978 ('TA1978').

On the surface, the imposition of such obligation appears to be reasonable because legislation constitute adopted law that applies equally to all members of a society. However, imposing such obligation becomes unjust if the law is onerous and/or severe. The question then becomes whether any safeguards exist in relation to the enactment of criminal law. One could argue that if criminal law were to be enacted in accordance with the principle of minimal criminalization, as suggested by academics, then such imposition would have to be fair, because only the actions or omissions with the most serious consequences would be criminalised. In that circumstances, criminal law would be the bare minimum necessary to protect the public and maintain the peace.

The second instance where one can be held criminally accountable under common law is when law enforcement authority fails to act. As an example, consider the case of R-v-Dytham. The defendant in this case was a police officer who was nearing the end of his duty when he witnessed a fight and did not intervene to stop it, despite the fact that it sounded violent. The victim died as a result of this. He said that he didn't intervene since he was nearing the end of his shift and didn't want to work any longer. The previous instance involved a police officer, while the current one concerns a civilian (R-v-Brown). A riot was about to break out in this case, and the police urged the defendant to assist them in halting it. Because the defendant refused, he was found guilty of aiding and abetting.

In Dytham's situation, it is reasonable to hold him criminally accountable for his failure to act. As a police officer, he represents the law, and he should have acted sooner rather than later when he heard and saw the incident. He may have requested assistance and backup. A citizen was killed as a result of his failure to act. He offered the explanation that he was towards the end of his shift and didn't want to work overtime, which does not reflect well on the police force. People will not feel protected if the entire police force follows Dytham's lead. Brown's case is unique in that the police requested assistance from a civilian. Though the civilian had a responsibility to assist the police, Mr Brown was not a law enforcement officer, and intervening in this case could have put his life in jeopardy, so he should not have been charged with omission liability.

The following omission liability is linked to a contractual obligation. A person who forms a contract is bound by its terms, and any breach of the contract could result in legal liability. The defendant in R-v-Pittwood was hired by the railways to close and open railway crossing gates. He went out for lunch one day and left the gate open, allowing two individuals in a hay waggon to cross the track and get hit by the train, killing one of them and critically injuring the other. Manslaughter was charged against the defendant.

Pittwood was employed by the railways and signed a contract to close the gates when a train was passing and to open them after the train had passed so that the road could be used by the general public again. Pittwood was in breach of his contract and was found liable for his failure to fulfil the terms of his contract. The question is whether the law is just. The law was fair in this category of omission liability (contractual duty), because he owed his employers a duty under his employment contract. Which is simple; if he violates the terms of his contract, he will be held accountable. It's worth noting that the defendant owed a contractual commitment to the employer rather than the victim.

A person can also be held accountable if he deliberately claimed responsibility for the wellbeing of another person and then failed to do so. Assumed duties are a subcategory of omission liability. There are three subcategories within this category. The first is a father's responsibility to his child; a parent is immediately liable for the child's care. As a result, the parent may be held legally accountable for any act that harms the child. In the instance of Gibbons and Proctor, the man provided the woman money to buy groceries for the family, but the woman, as the guy's second wife, didn't like the man's youngest child from a prior marriage and thus refused to feed him. The man was aware of the situation yet did nothing to save the child from starvation. Both of them were accused and convicted of murder for their failure to act; the man, as the child's father, was aware of the situation and did nothing, while the woman, who collected the money from the child's father, allowed her to starve to death. Despite the fact that she was not the mother, she assumed the role of mother and was obligated to feed the child. The second subcategory would be any other relationship that does not come under the husband and wife (long-term partner) category, such as a relationship between siblings. R-v-Stone, R-v-Dobinson (hence referred to as R-v-S&D), and Evans are the most common cases in this group (Gemma). The defendants in R-vS&D were cohabitees with lower-than-average IQ who lived on welfare. The victim, Mr Stone's sister Fanny, was allowed to stay with them. They took care of the victim since she had anorexia and bulimia; however, they eventually stopped because it became too much for them; even when the victim's neighbours requested that they take her to the doctor, they did nothing, and the victim was found dead in her room in horrible conditions (starved to death with her excrement around her). The couple was charged with murder for their failure to intervene, but the charge was reduced to manslaughter once their medical condition was considered. In the Evans (Gemma) case, the elder sister brought home heroin, which the younger sister overdosed on, and neither the mother nor the older sister sought for aid when she was in serious condition. For her failure to act, the mother was judged guilty of murder. When parties are jointly engaged in dangerous or hazardous actions, the last subcategory under assumed duties is created. Parties that engage in harmful activities together owe each other a duty of care. In the case of Lewin-v-CPS, a friend left his other inebriated friend in the car on a hot day, and the heat and alcohol combined to kill the other friend. The defendant in this instance was found not guilty because the action was not determined to be harmful.

Question 2:

To what extent have the statutory definition of consent in section 74 of the Sexual Offences Act 2003 and the presumptions contained in sections 75 and 76 eased the burden of prosecution and the vulnerability of rape victims to intrusive court procedures?

Among the crimes against autonomy, rape is one of the most heinous. Consent is the single most important aspect of consent against autonomy. As a result, behaviours like as sexual intercourse, kissing, slapping, or even touching someone might result in criminal charges if consent is not given. This answer would describe consent and the relationship between consent and rape. Furthermore, one could question the two presumptions added by the SOA 2003 in its s.76 and s.75, the former referred to as conclusive presumption and the latter as evidential presumptions, to make it easier for the courts to discover consent. Finally, one might look at s.74, stressing the conventional method of demonstrating the absence of permission before concluding that the presumptions in s.76 and s.75 have unquestionably made the burden of prosecution lighter. According to SOA 2003, one is accountable for this offence if he purposefully penetrates another person's vagina, anus, or mouth with his penis while knowing that the other person does not consent. This demonstrates that the sheer existence of consent makes a similar act of penetration legal.

In order to be found guilty of rape, the prosecution must show that the victim was not consenting. This is easier said than done, because most people carry out such acts in private and without supervision evidence. This puts the victim in a difficult situation, as V was unable to prove the crime in R v Bree. SOA 2003 established two presumptions: conclusive presumptions (s.76), which cannot be rebutted, and evidential presumptions (s.75), which can be rebutted but are extremely difficult to do so. Starting with s.76, the prosecution's responsibility is to establish any of the two circumstances listed in the presumptions beyond a reasonable doubt, rather than proving the absence of consent. Deception about the nature and purpose of the

conduct, as well as deception about the identity of the perpetrator the first factor, deceit as to the nature and intent of the conduct, would be discussed presently. This might be better understood if R v Williams was used. In this example, a singing teacher advised his student that her singing would improve if she had sexual relations with him. The only thing the student knew was that the teacher was lying to her and that the teacher's main purpose was to have sex. This is deceit as to the nature and intent of the act, and as a result, the consent was void, and the teacher was found guilty of rape. In Linekar's case, a prostitute had a sexual encounter with D, who subsequently refused to pay her. The courts determined that there was no misrepresentation of the nature of the conduct because she received exactly what she agreed to. This is a contentious case because the ruling also stated that intoxication will only vitiate consent if it affects the person's capacity to consent and freedom of choice. "A drunken consent is nonetheless a consent," the Dougal courts said. As a result, the victim must expressly inform D that he or she does not consent to the sexual encounter. In the case of R v Kamki, the courts ruled in favour of the victim, holding that there is no consent even if the V had self-intoxicated and then engaged in sexual intercourse that they would not have had they been sober. This demonstrates that the scope of consent is not defined, which explains why the courts have such a difficult time determining consent. Furthermore, in R v B, it was found that if D did not inform V of any diseases he had, such as an STD, and they had a sexual intercourse, D would not be held accountable for rape if the victim agreed to the intercourse.

As the nature and aim of the act were not mislead, D would only be liable for GBHunter s.20 of OAPA. Furthermore, if V imposed any express requirements on D, and D did not comply, D would be convicted of rape, as shown in R v Assange and R v DPP, where the victims requested D to wear a condom and not ejaculate, and D did not, and was convicted of rape. S.76 and s.75 have made it easier for the prosecution to prove the absence of permission, which was formerly a difficult task for both the prosecution and the victim. This was the primary reason why the guilty were frequently released while the victims were frequently labelled immoral. To prosecute D for rape, the prosecution must now establish either the two deceptions stated forth in s.76 or one of the six requirements set out in s.75. The usual method of establishing the absence of permission is effective, but it is a long shot and not a sure thing.

Because the rape victim may get exhausted or lack the resources to fight to the finish, s.74 is not the preferable method of prosecution when it comes to consent. However, if the prosecution is unable to establish one of the presumptions, s.74 will be their only option. S.76, s.75, and s.74 demonstrate that the law makes every effort to find the guilty, however this may not always be the case due to judicial interpretation. To summarise, one may confidently argue that sections 76 and 75 have significantly reduced the prosecution's burden of proof. To prove the absence of consent, the prosecution must establish the prerequisites of any of the presumptions. They always have a way out under s.74 if they are unable to do it this manner.

Question 5: Outline and discuss critically the present law on intention and recklessness, giving suggestions for reform. Because there is no clear definition of what constitutes recklessness, it is a difficult area of criminal law to navigate. Although statutes provide for the presence of recklessness, they do not define it precisely, thus it is up to the judges to decide what is meant by recklessness. As a result, case law is the most straightforward way to define it.

To determine what constitutes recklessness, judges have had to depend on "explanations in major case reports." This has necessitated sifting through a massive number of recklessness cases in order to determine whether the case in question comes within the parameters established. Recognizing the difficulty, the Law Commission has attempted to address the situation by producing many working papers on the subject.

This assignment will begin by presenting a basic history of reckless intent. Case law such as Cunningham [1957], Caldwell [1982], and RvG [2003] will be used to track the evolution of the law in this area. The existing definition of recklessness in criminal law will be evaluated in this study.

It is necessary to discuss intention in order to identify and comprehend the concept of recklessness. When committing an offence, defendants had to act ‘maliciously' and 'unlawfully,' according to 19th century criminal law. If the accused fails to provide a legal explanation for his actions, he will be judged to be acting maliciously after he meets the degree of Mens Rea required for the Actus Reus.

The word ‘malicious' adds the Mens Rea requirement. The legal definition of malice is "actual intent to do a certain form of injury that was really done, or recklessness as

to whether such harm should occur or not." The accused anticipated that certain harm would be caused and decided to take the risk anyhow. In English and Welsh law, the term "maliciously" refers to "an intent or irresponsibility” the highest level of Mens Rea is Intention. In Latin, Mens Rea means "guilty mind."Intention varies from recklessness in that it carries a harsh penalty in the criminal justice system and is morally reprehensible, whereas recklessness is not.

With the Motorcar Act of 1903, the term "recklessness" was first used in a criminal statute. Professor C S Kenny believed that recklessness required the defendant to be aware of the likelihood of the specific injury. Kenny saw it as a component separate from risk awareness: indifference to whether the anticipated harm occurred or not. Another viewpoint is that a person is reckless if he takes a knowing risk, even if he fervently believes the foreseeable harm will not materialise.

Cunningham's case, which occurred in 1957, changed the way Recklessness was interpreted. D smashed a gas metre to take the money contained within it in R v Cunningham. Gas seeped into the house next door, where D's mother-in-law was resting, via the damaged pipe. The mother-in-health law's had deteriorated to the point where her life was in jeopardy. Under S.23 of the Offences Against the Person Act 1861, D was found guilty of 'unlawfully and maliciously' giving a poisonous object with the intent to endanger life or inflict grievous bodily damage. Cunningham's conviction was overturned due to the trial judge's misunderstanding of the meaning of malice. Malice, according to the Court of Appeal, does not imply "wickedness," but rather "either (1) a purpose to conduct the particular injury that was done, or recklessness as to whether such harm should occur or not" .

In this context, recklessness is foreseeing the possibility of harm and proceeding with the conduct notwithstanding. This is known as a subjective test, and it means that the accused is irresponsible if he knew there was a chance of gas escaping and endangering someone, but nonetheless went forward with his action. Prof. Kenny noted in his first version of 'outlines criminal law' that, as previously indicated, purpose or recklessness had to be proven. He also stated that, "it neither limits, nor does it indeed necessitate any ill-will toward the person wounded”. To be found guilty of Cunningham recklessness, a defendant must have knowingly taken an unreasonable

risk and be aware that there is a danger involved. However, if he continues to act in this manner, he will be considered risky. The case defined a sort of carelessness in which the defendant's knowledge of the risk of some danger must have entered his mind, even if he suppressed or drove it out. The first leg of recklessness is Cunningham, whereas the second limb comes from the case of MPC v Caldwell (1982).

Caldwell devised a new and broader test for the second Recklessness exam. D had a grievance against the hotel's owner as an ex-employee. He set fire to the hotel, which resulted in some property damage. D was arrested and accused with arson. The original Cunningham test of recognising a risk but proceeding nonetheless was expanded to add a second leg, namely that the D does an act that causes an obvious risk while giving no thought to the likelihood of such a risk. The Caldwell standard for recklessness is objective, meaning that the risk must be clear to a reasonable person who would have realised it if he had given it any thought. Elliott v C [1983] and R v Coles [1994] show that it does not have to be clear to the defendant.

Lord Diplock stated that Cunningham's concept of recklessness was too restricted, and that recklessness should not be limited to the Cunningham interpretation in the Criminal Damage Act 1971. According to Lord Diplock, a person is irresponsible as to whether any property will be destroyed or damaged if he performs an act that presents an obvious risk of property destruction or damage. Furthermore, when the act is undertaken, he has not given any consideration to the potential of such a risk, or he has recognised that there was some risk involved and has nevertheless carried it out .As a result, to satisfy Ca...