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MODEL ANSWERS FOR YOUR EXAM

CRIMINAL LAW

(page 2 to page 20)

AND

CONTRACT LAW

(page 22 to page30)

Important notes:

Only complete Section A, Criminal Law, and Section C, Contract law, in the exam.

Do not complete any questions on Negligence (Section B).

Order to answer questions in the 1hr 30min exam:

1.  Complete ALL the theory questions on Criminal law first, normally the first and last questions on Section A.

2.  Complete ALL the theory questions on Contract Law next, normally the first and last questions on Section C.

3.  Finally complete the application questions on Contract and Criminal law last.

4.  This should help you complete all questions on the paper in the time allowed.

CRIMINAL SECTION

ACTUS REUS Question

Actus Reus (AR) is the guilty action. AR can be a voluntary act, a state of affairs or an omission. In Hill v Baxter it was said that an act would not be voluntary if a driver was being attacked at the time by a swarm of bees, as he had no control over his actions, which would be seen as an involuntary act. In R v Whooley the driver of a HGV lorry had a sneezing fit and crashed into other cars. Because his actions were involuntary it was held he did not have the actus reus of the offence and was not guilty.

An omission can also form the actus Reus of an offence. The general rule in English law is that there is no liability for a failure to act, e.g. watching a blind child being run over crossing a busy road. However, the law sometimes imposes a duty to act. Parliament said a failure to provide a breath sample under the Road Traffic Act was an offence. The courts said Pittwood, a railway worker, was guilty of manslaughter for failing to close level crossing gates, as he was under a contractual duty to protect the health and safety of those using the crossing. Also Stone and Dobinson, an elderly couple, was also guilty of manslaughter for failing to care for an infirm relative who they took responsibility for. Miller was guilty of arson for failing to take reasonable steps to prevent the spread of a fire he had started accidentally.

An act can simply be a state of affairs, where the prosecution only have to prove the D was in the wrong place: in the case of Winzar, the police escorted a drunk out of a hospital. They then arrested him for being drunk on the highway, as he was both drunk and on the highway. As this was a state of affairs offence it was irrelevant to proving the actus reus of the crime that Winzar was in the highway involuntarily.

Explain how omissions can result in a crime being committed Question

The general rule in English law is that an omission or failure to act will not usually result in criminal liability being imposed, as the actus reus should normally be committed voluntarily by the D. There is no general ‘Good Samaritan’ law where a D would commit a crime for not doing what he should of. But there are exceptions where a crime will have been committed because the defendant failed to act. These are as follows:

(1) Where there is a contractual duty to act — in R v Pittwood, the level-crossing gatekeeper failed to close the gate to an oncoming train and a person crossing the line was killed. His contract of employment clearly required him to ensure this could not happen and to protect the health and safety of crossing users and as he failed in this duty he was convicted of manslaughter.

(2) Statute can make it an offence in defined circumstances to fail to act. Under the Road traffic Act the AR is satisfied for failing to wear a seat-belt or crash helmet.

(3) Someone can be made liable where there is an assumed responsibility for the care of an aged or infirm person — R v Stone and Dobinson. Here the defendants wanted Stone’s middle-aged sister to live with them. The D’s were found guilty of manslaughter as they had failed to call for medical attention after assuming responsibility for the V.

(4) Where the defendant does an act, which creates a dangerous situation there is a duty to take reasonable steps to eliminate the danger. In the case of Miller He set fire to a mattress accidentally and then left it. His failure to intervene in the creation of a dangerous situation and do what was reasonable (such as call the fire brigade) made him guilty of arson through an omission.

(5) Where an official fails to perform his duty — in Rv Dytham a police officer was found guilty when he failed to protect a citizen who was being kicked to death for example by calling for assistance.

CAUSATION Question

If it is not clear if the D’s act caused the injury the courts must prove factual and legal causation, in order to prove the actus reus of a crime. We use the ‘But For’ test for factual. But for the D’s actions would the victim still be ok? In White, he was not the factual cause of death, his mother died of a heart attack and his act did not contribute to this.

If factual causation is proved then legal causation must be proved to show that it is fair to hold the D responsible for the AR of the offence. The D must be proved to be either a significant cause or a substantial cause of the V’s injuries/death as well as an operative factor. So in the case to Smith even though the medical treatment was poor, as the doctor missed a wound in the V’s back, the stab wounds were still an operating and substantial cause of the V’s death, and therefore Smith was still liable for the AR of murder. This established a chain of causation and the AR of the offence.

The D can argue the chain of causation has been broken and if successful will not have the AR of the offence, known as a novus actus interveniens. Firstly, by characteristics of the victim as in Blaue, in this case the V refused a blood transfusion on religious grounds. However, you have to take your victim as you find them under the thin skull rule, so the D’s chain of causation is not broken as the D had to take the V’s religious views as he found them. Secondly, because of the victim’s own act as in Roberts where he claimed the girl’s act of jumping out of the car were daft. If the victim’s acts are seen as daft it will break his chain however, it is very rare that this happens and in Roberts the V’s actions were seen as reasonable and not daft as she was sexually assaulted. Thirdly, if there has been an unforeseeable intervention as in Pagett where the police shot and killed his girlfriend. In this case it was seen as reasonably foreseeable that the police would instinctively return fire when shot by D, and Pagett was still responsible. Lastly, that a doctors’ negligence was the real cause of the AR in Jordan. Where treatment given was ‘palpably wrong’ (allergic to drugs given – twice!) and broke the D’ chain as the D’s original wounds had almost healed. However in Cheshire the court said that if the original acts were an insignificant cause of death/injury then any poor treatment would break the chain. However Cheshire’s shooting of the V were still a significant cause of death. Because of ‘public policy’ (to protect doctors) it is very rare that poor treatment will break the chain.

Alan believed that Bhu, a fellow student, had stolen his mobile phone. Alan saw Bhu at college, went up to her and said, ‘We sort out thieves like you.’ As Bhu hurried away in a panic, Alan’s friend Carol, sprayed Bhu with red paint. A small amount of paint went into Bhu’s eyes. She was taken to hospital where her eyes were treated to remove the paint. As she went home, and just before her sight was fully recovered, she tripped up a kerb and fractured her skull.

Outline the rules on causation, and briefly discuss whether Carol caused Bhu’s fractured skull. (7 marks + 2 marks for A03) – Jan 2011

The defendant (def) must be both the factual and legal cause. To establish whether they are the factual cause you use the ‘but for’ test, ‘But for the defendant’s actions would the victim have suffered harm?’ (White). But for his actions – putting poison in his mother’s drink – she would have died anyway of a heart attack. Carol caused Bhu’s fractured skull because but for Carol spraying Bhu in the eye with paint, she wouldn’t have blurred vision and fallen and fractured her skull.

Legal causation – did anything break the chain of causation? As long as it can be said Carol’s conduct of spraying the paint in Bhu’s eyes is a substantial and operating cause of Bhu’s fractured skull she will be held legally responsible for this injury (Smith), establishing a chain of causation. Carol may argue a number of reasons why the chain of causation may be broken and she is not responsible for Bhu’s fractured skull. 3rd party interventions break the chain of causation if they are unforeseeable (Pagett). The police firing at Pagett’s girlfriend was foreseeable after he shot at them. Medical treatment breaks the chain if it is ‘palpably wrong’ (Jordan), but doesn’t if the injuries were the substantial and operative cause of death (Smith). You must take you victim as you find them – the thin skull rule (Blaue). It didn’t matter Blaue’s victim refused a blood transfusion as she was a Jehovah’s witness and later died because you must take your victim as you find them. Daft acts by the victim break the chain of causation if they are unforeseeable (Roberts). It wasn’t unforeseeable that Robert’s victim would jump from the car.

It was foreseeable that if Carol sprayed paint in Bhu’s eyes she would lose her sight and that Carol must take her V as she finds her, with poor vision. With Bhu’s poor vision even after getting medical treatment it is reasonable that she try and go home and foreseeable that she would trip and fall, causing the fractured skull. There is no mention of “palpably wrong” medical treatment for Carol’s injury and it is clear Carol’s injuries to Bhu were still operating and substantial at the time when Carol fell and fractured her skull. Therefore there is no break in the chain of the causation and carol is said to have caused Bhu’s fractured skull.

MENS REA Question

Mens rea means the guilty mind of the D and is the level of fault or blameworthiness that needs to be proved to show D was aware of the consequences of his actions. This can be either intention or recklessness. Intention can be direct as in Mohan. Direct intent means it is your main aim or desire to bring about the consequence of the crime e.g. death or GBH. In Mohan the D accelerated his car towards a police officer causing the V to jump out of the way. It was held that the D’s main aim from the evidence was to cause the V GBH, really serious harm, through accelerating his car at the officer who was standing in front of it.

Intention can also be indirect/oblique. This is where the D intended the act itself but not the criminal consequences. Woollin’s main aim was to throw the baby against the wall (so he had direct intent for this) but his main aim was not to kill the baby. However, we can say that if he saw death as a virtual certainty of throwing the baby against the wall we can say he indirectly intended the baby’s death. As long as the jury also foresaw death as a virtual certainty the D would have indirect intention to kill the V.(very important bit!)

Recklessness is where the D doesn’t intend the death or injury of a V but he recognises he is taking a risk of harming someone and yet still goes ahead. This is explained in Cunningham. It looks at what was in the D’s mind i.e. subjective recklessness. So in the case of Cunningham the D must have foreseen that the V might suffer from the effects of gas poisoning when he tampered with the gas meter, but still gone on to take the unjustified risk. It must also be proved that D was at least indifferent to this obvious risk or was aware of the unjustified risk but chose to take it anyway, i.e. unjustified risk taking. However as Cunningham was believed all the houses were abandoned he did not foresee the risk of poisoning anyone with gas.

Explain the meaning of Transferred Malice

Transferred Malice (TM) is where the mens rea directed towards one person is transferred to the actual V.

The rule operates only where it is the same type of offence the D wishes to commit on either the person or object. TM can transfer person to person or object to object. For example in the case of Latimer the D got into an argument with V1 and took his belt off to strike him. The belt hit V1 but then rebounded and also hit V2, standing next the first victim. The P only had to prove the Mens rea of the offence on V1, which they successfully did. This then automatically transferred to V2 through the concept of TM as it was person to person and the same type of offence.

However, where the D wishes to commit an offence, which is different from the actual offence committed, the principle of TM does not apply. So TM can’t transfer from person to object or object to person. For example, in the case of Pembliton the D intended to hit a person in a crowd by throwing a stone. The D missed the crowd and broke a nearby window instead. TM did not apply as the breaking of the window (criminal damage) was not the same type of offence as hitting someone with a stone (battery). Therefore the P would have to prove the mens rea for criminal damage if D was to be guilty of this offence.

COINCIDENCE OF ACTUS REUS AND MENS REA Question

Actus reus and mens rea must occur at the same time (the contemporaneity rule) or there will be no criminal offence. This is to stop unrelated events being linked together creating a crime, which a D is clearly innocent of. However the courts have identified a number of exceptions. In Fagan v MPC the D accidentally stopped his car on a policeman’s foot (actus reus of battery). When he was asked to remove the car he refused and told him to wait. Leaving the car on the policeman’s foot was seen as a continuing actus reus. He formed the mens rea for the offence when he refused to remove it and as he was still committing the act by still being on the foot, he had committed the crime, so using this approach AR and MR did coincide and F was found G.