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Criminal Law Generic Feedback 2020
Criminal Law (LW2220)
University of Leicester
Preview text
2019/20 Generic Feedback
THE FOLLOWING REPRESENTS GUIDELINES ONLY. IT SHOULD NOT BE SEEN AS
A CHECKLIST ON HOW TO ACHIEVE A HIGH MARK. ANSWERS ARE LOOKED AT
AS A WHOLE AND THE QUALITY JUDGED ACCORDINGLY.
Department Law
Module Title and code Criminal Law LW
GENERAL STATISTICS
Median mark for module 63.
Average mark for module 60.
General comments on paper:
There were some very good papers for this exam, with the highest mark for the paper being 86. 75% of students obtained either a first class or upper second-class mark in this exam, with very few students obtaining either a fail or third-class mark.
Information on assessment adjustments due to industrial action and COVID-19:
The topics of robbery, burglary, and fraud were excluded from the examination. These topics were not lectured owing to the industrial action that took place during this academic year. The tutorials were amended to remove these topics and ensure that all lectured topics were fully covered in tutorials.
Question 1 topic: Moral luck and constructive manslaughter.
Median mark for question: 65 Comments: This question asked students to consider the role that moral luck should play, if any, in establishing liability for constructive manslaughter. Students were expected to identify that it is possible to construct liability for manslaughter in circumstances where D may have had no foresight of death or serious injury. Take, for example, the case where D punches V, V falls and hits her head on the kerb and dies. These one-punch manslaughter cases have been the subject of much academic and judicial debate. In discussing these issues, students should identify the basis upon which liability in these cases is established. E. an unlawful act + dangerousness + causing death = liability for UAM, with reference to relevant cases, particularly Church.
In answering this question, students could have critically discussed the ‘change of normative position’ argument proposed by Horder. Students could have discussed the Law Com proposals to introduce a new offence of Criminal Act Manslaughter, with the requirement that D kills V intending to cause injury or foreseeing a serious risk of injury.
However, this remains questionable given D could have no culpability relating to death or serious injury and receive a possible penalty of life imprisonment. Other areas that students could have discussed are causation, particularly in the drug-supply and victim response cases, and outcome vs choice-based liability.
Common mistakes were that some candidates did not display an adequate understanding of moral luck; the best candidates, for instance, clearly linked moral luck to the mens rea requirement of UAM (or the lack of one, outside a requirement of dangerousness). Additionally, and linked, some candidates made no reference to academic commentary and important principles such as change of normative position or the importance (or otherwise) of the correspondence principle.
Question 2 topic: Omissions
Median mark for question: 62 Comments: This question asked students to critically evaluate Ashworth’s proposal for general omissions liability rather than a specific statutory duty. In answering this question, students were expected to demonstrate their understanding that omissions liability currently requires a duty to act and could have discussed a variety of different issues. Examples of areas that students could have focused on are:
Arguments against general omissions liability.
Causation issues – Hogan, Hart & Honoré, Leavens, Katz, Husak
Personal autonomy, omissions are qualitatively different to acts, practicality, infringement of personal autonomy – Moore, Glanville Williams, Dressler, Simester, Fletcher, Duff
Arguments for general omissions liability
Avoids problem of determining whether act/omission, obligations of social responsibility, low cost to D compared to high risk to V – Ashworth, Tadros, Freeman, Hughes, Feinberg
This question was generally answered by students well. Common mistakes were that some students spent too much time focusing upon a specific duty of easy rescue, which was not the substantive issue raised by the question. Similarly, descriptive answers which simply listed the scenarios in which a duty to act will arise under current law without engaging with the proposal for change typically did no better than a 2:2.
Question 3 topic: Defences
Median mark for question: 65 Comments: This question focused on the categorisation of general defences in criminal law. Students were expected to know that defences can be broadly categorised into two groups: those that provide a justification for D’s conduct and that excuse D’s conduct but might have also noted that there are other categories, such as exemptions, and questioned the usefulness
Ashley: Injuries can be aggregated (Grundy). A broken bone and PTSD would certainly amount to ABH (interfere with health and comfort Miller, more than transient and trifling DPP v T) and more likely amount to GBH (Smith). Causation needs to be discussed. H is responsible for injuries caused by Ashley’s non-daft actions of running away from an apparent axe murderer (Roberts). Liability depends on MR. s can be immediately discounted – there is no intention to cause GBH. s. Subjective recklessness as to causing some harm (Mowatt) needs to be discussed. s. Mens rea of simple assault (see above re Simone)
Derek: Although an axe is involved, the injuries are minor. Cut could amount to a wound (Moriarty v Brooks) but in total injuries are only just at the ABH level. Students may conclude this is just a battery. Reference may be made to CPS guidance. Injury caused semi-directly, but some students may discuss cases like DPP v K to establish that H is responsible for Derek’s injuries. If pursuing wound, need to discuss s and s and respective mens rea. As the axe was thrown at the van intention to cause GBH is unlikely. Subjective recklessness as to causing some harm may be easier to establish, although still difficult. Battery mens rea must be discussed if that is the student’s chosen offence.
Common errors included:
The most common error when answering this question was that students tended to completely miss/overlook the causation issue concerning Ashley (see above).
Some students failed to acknowledge that a small cut is unlikely to amount to a wound re Derek. Students saw 'cut' and immediately jumped for a s. 20 offence without any further contemplation of whether it would be the most appropriate offence.
Some students did not understand the difference between s. 18 and s. 20 GBH and thought both sections required intention or recklessness.
Question 6 topic: Sexual offences
Median mark for question: 62 Comments: This was a question about rape and sexual assault. It was by far the most popular problem question answered on the paper. There was a fair bit of conduct to discuss, but the main issues for each part of the question were not always dealt with. An outline answer appears below:
Arm around Bernice Sexual assault (s SOA 2003) Touching: can be through clothing (s(8)) Sexual? This is more of an issue. Potentially three categories of behaviour:
- Never sexual – circumstances and purposes presumably irrelevant
- Sexual by nature – circumstances and purposes irrelevant by s(a)
- By nature may be sexual – consider circumstances and purposes
H says decide whether conduct is unambiguously sexual. If it is not, determine whether it could be sexual. If it could, determine whether it is objectively sexual in this case, due to the circumstances and/or purposes of any person in relation to it.
Here it may be sexual in view of what follows – it seems to be A making sexual overtures to B, so his purpose is sexual, and the circumstances of them being on the bed, lying down, could contribute to that objective reading of the conduct.
Touching must be intended (here it is) but the sexual characterisation of the act need not be intended (see above).
Consent and D did not reasonably believe in consent – see discussion below Students may note that if the touching is not sexual, it could still amount to battery, but they could still achieve a 2 level without mentioning battery. For battery there needs to be a lack of consent and a lack of belief in consent. Better students will note that a genuine, if unreasonable, belief in consent would suffice to prevent A from being criminally liable for battery (Morgan v DPP)
Digital penetration of the vagina Assault by penetration (s) because a body part is used to penetrate the vagina. Need to intend to penetrate – clearly there is such intention here. It is not rape because the body part is not A’s penis. Needs to be without consent and reasonable believe in consent – see below
Vaginal sex Rape s SOA 2003. Intentional penile penetration of the vagina – all made out here. Without consent and reasonable belief in consent – see below.
Consent Relevance of presumptions. There is no deception (so s is out) and none of the s. situations are relevant (although B was in A’s flat, it would be a stretch to say that she is unlawfully detained).
Lack of consent s? Has B agreed to the sex by choice, when she has both the freedom and capacity to make that choice?
B and A have both been drinking alcohol, but very little (one glass each) and there is nothing to suggest that B has reached the stage where she has lost capacity (Bree).
B struggles to verbalise, but that does not mean that she has consented, or that she lacks capacity to agree by choice. There is no requirement that B verbalise or demonstrate lack of consent (although it is evidentially relevant) (Malone). Through her physical responses she is unhappy about the (sexual) assault and assault by penetration. There is ample reason to find that that B is not consenting to the sexual assault or the assault by penetration.
Does she submit to the vaginal sex? Is submission enough? Despite Watson, submission in the sense of giving in when D has continued despite protestations is not consent (Doyle). This situation can be distinguished from Doyle in that there C only ‘let him get on with it’ after penetration, whereas here B can be argued to have taken a ‘let him get on with it’ approach prior to penetration – but the distinction does not make a material difference as
Common law offence. Students may discuss Coke’s definition, but this is not necessary. The offence requires D to unlawfully kill another person and do so intending to kill or cause serious bodily harm (GBH per s. 18 OAPA). D’s conduct – repeatedly hitting V with a lamp. D’s conduct causes death, thus satisfying causation, in a direct and mechanical sense. D’s intention (e. aim or purpose)? Whether D intended to cause death is indeterminate but is likely to amount to intention to cause serious bodily harm and this is sufficient.
Loss of control The partial defence is available to D if he kills while having lost his self-control owing to fear of serious violence or because of his justifiable sense of being seriously wronged. LOC is defined by the Coroners and Justice Act 2009, ss. 54 and 55.
The rationale of the defence is that D kills with the intention of murder, but D’s level of culpability is lower owing to circumstances of justified anger, and is overwhelmed by a violent passion, which is likely to have affected others similarly in his position. Three elements must be satisfied: (1) D’s role in killing must arise from a loss of control (2) D’s loss of control must arise from a qualifying trigger (e. fear of violence/ or things said or done of extremely grave character which caused D to have a justifiable sense of being wronged) (3) A reasonable person, of D’s age and sex, might have reacted in the same way.
D must lose his self-control Meaning of this? The CA in Jewell held the term should be interpreted to mean extreme emotion and or a loss of control. NB: D is no longer required to have a sudden and temporary loss of control. D clearly acted with extreme emotion in this case arising from the rape and subsequent mocking. Was this a loss of control, though?
Qualifying trigger. It is likely the second trigger of being seriously wronged by things said or done is more applicable here. This is partly subjective and objective. The ‘things said or done’ does not need to be by V. This is important, since in our case it is V’s wife, Yasmin, who laughs and mocks D. D is likely satisfy the first limb, feeling personally and seriously wronged. However, was it justifiable to lash out at V in the manner described? Extremely grave, justifiable sense, and seriously wronged as very vague terms. Thus, there is leeway as to whether the defence will be available.
The reasonable person How would a person of normal tolerance and self-restraint react in similar circumstances? Thus, it must be objectively understandable, with respect to D’s age and sex. See Camplin [1978]. The facts of this case are very similar to that of the problem, but students are not expected to have knowledge of all provocation cases. S. 54(1)(c) explicitly allows for D’s age and sex. So, the question becomes whether a reasonable 14-year-old male might have acted similarly after being subjected to similar things said or done. What of D’s drinking? Not relevant - see Asmelash [2013]. D’s intoxication was only relevant to D’s general capacity of self-control and therefore excluded. The inclusion of this characteristic his would undermine the third limb as the reasonable person would slowly become the D due to being infused with too many of the D’s characteristics.
Whether D is afforded the defence is based on a critical analysis of these three requirements. Students should reach a reasoned conclusion based on an evaluation of D’s response to V’s, and his wife’s, ‘things said or done’.
The burden of proof is on the prosecution to disprove LOC. If they fail to do so, D will be convicted of manslaughter rather than murder.
Self-defence Students should cite the CLA 1967, s. 3; the CJIA 2008, s. 76; and case law when discussing self-defence, identifying the common law defence and the prevention of crime variants.
D must be reasonably responding to violence or imminent threat of violence. Should D defend himself he will be doing two things – preventing crime from being committed or continuing to be committed and protecting himself. The legitimacy of D’s response should be assessed solely in terms of the reasonableness standard set out in s. 3, as explicated in s. 76. The violence/imminent threat of violence: D fears further rape which could be sufficient for this.
Pre-emptive force: The effective prevention of crime or attack may require pre-emptive force. There is no common law, or statutory provision, that requires that D wait until V actually attack him before making a defensive response. If V’s attack is imminent, then D may defend himself. See Kelly [1989]
Reasonable force: consider the necessity to use force, and whether it was proportionate. This is to be established by the jury, based on a broad and liberal understanding of reasonableness. See: Wastie [1972].
Necessary: cannot be justified unless it was necessary. This is determined from the point of view of K. Did K have an honest belief in the need for force?
Proportionate: Force which is disproportionate to the needs of the occasion is unreasonable force. This term is to be given its ordinary, broad, and liberal meaning. There is no specific guidance on how the term is to be employed in the law. See: Palmer [1971].
For P to disprove self-defence. If they fail to do so, D will be acquitted completely (making it a more attractive defence to D than LOC).
Common mistakes included:
- Some students did not address, at all, whether there could be liability for murder, instead moving straight to the defences. Others spent much too long on this relatively straightforward issue.
- On the defences, self-defence was the one addressed less satisfactorily. A lot of candidates failed to reference the statutory provisions. Lots referenced Palmer, failing to fully follow Owino or the statutory confirmation of this. Very few students noted that the first limb of the defence (necessity to use force) is based on an honest belief while the second limb (whether the force used was reasonable) is an objective question.
cutting he is severing the cuttings from the land (s(2)(b)), so this would be regarded as ‘property’. As it is in someone else’s garden, it ‘belongs to another’ for the purposes of theft.
So, he appropriates property (the cuttings) which belong to a local resident and he intends to keep them to grow.
Might he think he would have the owner’s consent if the owner knew of it? Credit consideration of s(1)(b) but do not require it. The general test of dishonesty should also be considered even if s(1)(b) is raised - the Ivey test. Since he ‘slips’ into the garden (which is private property), a jury is likely to conclude that he was dishonest.
(iii) Freddie’s cannabis This is property which belongs to another. The fact that it is property that it is unlawful to possess is irrelevant: Smith. He intends to smoke the cannabis, so he intends to permanently deprive Freddie of the cannabis (Velumyl). Dishonesty: the fact that he intends to pay Freddie does not mean that he is not dishonest: s(2). The Ivey test applies- sensible discussion should be credited.
(iv) Champagne The issue that students may struggle with is appropriation. They may see this as an attempted theft. However, in the light of Morris and Hinks, there is an appropriation when he picks up the bottle as he takes over a right of the owner (possession) with the mens rea of theft (Hinks). There is no issue of consent here, implicit or deceptively obtained or otherwise.
The bottle is property belonging to another and he intends to drink it (intention permanently to deprive as he intends to treat it as his own to dispose of (s(1))) and appears to be dishonest (per Ivey) - since he doesn’t appear to believe that he’s entitled to take the bottle and leaves it when he thinks that he might be detected.
So, the offence of theft is complete when he picks up the bottle (cf Atakpu). Of course, if nobody knows what he has done, he won’t be prosecuted, but technically he has committed theft.
Common mistakes included:
- The biggest error on this question concerned the final part of the question; a good number of candidates suggested this was an attempted theft, rather than a complete crime. This was frequently done when candidates did not fully explain appropriation with relevant cases.
- A significant number of candidates were still using Ghosh, rather than Ivey, for the test for dishonesty.
Generic feedback completed by: Daniel Bansal Date: 24 June 2020
Criminal Law Generic Feedback 2020
Module: Criminal Law (LW2220)
University: University of Leicester
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