Question 1

Robin met Louise one night at a disco.  After the dancing had finished, Louise invited him back to her flat for a drink.  Robin accepted and escorted Louise home where she drank several whiskies and became very drunk.  Robin proposed sexual intercourse but Louise resisted and eventually fell asleep.  Robin then had sexual intercourse with her both vaginally and anally.  The next week, Robin invited Sandra out for a meal and afterwards they returned to her flat.  Robin told Sandra that he was David Beckham’s brother and that if she had sexual intercourse with him he would arrange a meeting with the famous football player.  This was untrue.  Sandra agreed to the request.  Six months later, both Louise and Sandra discovered that they were infected with HIV.

Discuss any criminal liability arising from these facts.

Answer guidance

Firstly, the offence of rape under the Sexual Offences Act 2003 should be considered. The offence is committed when the defendant intentionally penetrates the victim without a reasonable belief in consent (s1 Sexual Offences Act 2003). S74, along with s1, defines consent thus: a person consents when she agrees by choice, and has the freedom and capacity to make that choice. Capacity is clearly limited if the victim is drunk. Furthermore, the Act allows the jury to presume lack of consent in certain circumstances, including a situation in which the victim is asleep or otherwise unconscious (s75(2)(d). It is unlikely that the jury will accept that Robin had a reasonable belief in Louise’s consent. Section 76 allows the jury to conclusively presume that no consent was obtained in cases of deception as to the nature or purpose of the Act or where the defendant has impersonated a person known personally to the defendant. Unless David Beckham falls into this category, there will be no conclusive presumption. Finally, the HIV contracted by both defendants may be a nonfatal offence against the person under s20 Offences Against the Person Act 1861, following the decision in R v Dica [2004].

Question 2

Dan and Vera, who had been going out together for three years, were engaged to be married last year.  One evening Vera told Dan that she was having an affair with a work-colleague and that her relationship with Dan was finished.  Dan was immensely shocked by this news and felt desolate.  In a state of confusion, he decided to go to Vera’s house to see if he could find something he could keep in memory of her.

To gain entry into her house, Dan used a spare key, which she had previously told him she kept under a stone by the front door.  He made his way to her bedroom where he saw the engagement ring that he had given her on a shelf.  He took it thinking that she had no right to keep it now that she had broken off the engagement.  He then sprayed a pillow with her favourite perfume and stuffed it inside his jacket.  He was about to leave her bedroom when he saw a photograph of Vera and her new boyfriend on her bedside table.  Incensed, he grabbed the photograph and tore it to pieces.  As he was doing so, the pillow fell out of his jacket.  He left it on the floor and ran out of the house.

Dan was arrested later that night but told the police that he barely remembered anything he had done after his conversation with Vera because he was in shock.

Assess the criminal liability, if any, of Dan.

Answer guidance

Dan appears to have committed three counts of burglary. In addition, he might also have a defence of automatism. In terms of burglary, Dan has entered the building (R  v Collins [1972]). Has Vera given him permission to enter? He visits at night, which might indicate his intention to steal. Dan may have committed s9(1)(a) burglary even if his intention is conditional on finding something of sentimental value. Is the ring a gift? Theft is defined according to s1 Theft Act 1968 as the dishonest appropriation of property belonging to another with an intention permanently to deprive. A ring falls within the definition of property under s4 TA 1968. The property must belong to another defined in accordance with s5 as belonging to any person having possession or control of it, or having in it any proprietary right or interest, whether it be a right of ownership, possession or equitable right.  Since the ring had been a gift from Dan to her, Vera was the owner of it. He may have a defence on the grounds of lack of mens rea. The facts state that he does think Vera has no right to it having broken off the engagement.  Under civil law principles, the receiver of an engagement ring is the owner of it and this does not change if the engagement is broken off.  However, s2(1)(a) concerns D’s belief.  He will not be dishonest if he genuinely believes he has a legal right to the property. Dan may genuinely believe that he was not dishonest by ordinary standards given Vera’s reprehensible behavior. However, a jury is unlikely to find that his retrieval of the ring was honest on the basis of these facts.  The changes made to the common law test in R v Ghosh by Ivey v Genting Casinos seem unlikely to change this position. Consequently, Dan may have committed s9(1)(b) burglary on these grounds. There is no evidence that he damaged the pillow by spraying it with perfume and therefore criminal damage will not be considered.  However, he appears to have stolen it despite the fact that he leaves it behind when he runs from the house. 

Third, in tearing up Vera’s photograph Dan has committed criminal damage contrary to s1(1) Criminal Damage Act 1971.

However, Dan may use the defence of automatism on the basis of shock and desolation leading to confusion.  Automatism is a plea that the link between mind and body is missing resulting in a lack of voluntary control over one’s actions. Bratty [1963] defined the defence as ‘an involuntary act...done by the muscles, without any control by the mind.’ It provides a complete acquittal because lack of voluntariness negates the actus reus of the crime. Neither is it likely that he will be able to use insanity given that his mental condition appears to be temporary and he knows what he is doing.

Question 3

Marvin owes £5,000 to Paul, a drug dealer with a formidable reputation for resorting to violence against those who cross him. Paul tells Marvin that he must get the money he owes or he will have Marvin tortured and killed. Marvin decides to burgle Harriet’s house. Hoping to avoid any trouble Marvin watches the house to see when it might be unoccupied. Having called at the house to check that there is no one in, Marvin enters via an unlocked ground floor window. Unknown to Marvin, Harriet is at home. She had been fast asleep upstairs when he had knocked on the door earlier. On confronting Marvin, Harriet attacks him with a hammer. Seeking to protect himself, Marvin pushes Harriet downstairs. She suffers a fractured skull when her head hits the stone floor. Advise the CPS as to the criminal liability of Marvin and Paul. How would your answer differ if Marvin had taken a large quantity of cocaine to give himself courage?

Answer guidance

Marvin may be guilty of burglary contrary to s9 Theft Act 1968. S9(1)(b) is most likely on the basis that he inflicted grievous bodily harm when he entered the building. Marvin has committed s18 Offences Against the Person Act 1961, but as it may be difficult to establish a direct intent to do GBH, s20 may be the more appropriate charge. He may raise the defence of self defence (s76 Criminal Justice and Immigration Act 1976). Marvin will be assessed on the basis of the facts as he believed them to be. He may further argue that he was forced to commit the crimes under duress of circumstances (R v Martin [2002]). However he may be prevented from doing so due to the limitation on a voluntary association with criminals (R v Hasan [2005]). Paul may be guilty of blackmail under s21 Theft Act 1968 and common assault (he has caused Marvin to apprehend unlawful personal violence). Accessorial liability will also need to be considered. If Martin had taken cocaine for courage, the court will disregard any defence of intoxication (Attorney General for Northern Ireland v Gallagher [1963]).

Question 4

‘Mens rea, is, by definition, the defendant’s state of mind’. Discuss the accuracy of this statement using case law to support your argument.

Answer guidance

This is a broadly drafted question which requires students to consider the different types of mens rea. In addition to briefly describing intention and recklessness, it is necessary to challenge some of the judicial thinking behind these definitions. In particular, an assessment of the move from objective standards of liability to subjective ones is needed. Briefly describe the development of the law of intention, especially the issue of oblique intent (R v Woollin [1998]). Has the House of Lords clarified the term and does the current definition focus on the defendant’s state of mind. This is certainly the case and is in stark contrast to previous interpretations which were largely objective. Recklessness should then be outlined, including the move from a subjective approach (R v Cunningham [1957]) to an objective one (R v Caldwell [1982]) and again to a subjective one (R v G [2003]). Why was R v Caldwell criticized? The importance of the defendant’s state of mind was emphasized by Lord Bingham, in contrast to Lord Diplock’s judgment in Caldwell. R v G may settle this debate once and for all. In conclusion, it is now correct to say that mens rea usually does involve an examination of the defendant’s state of mind to ascertain a degree of awareness of his actions. Nonetheless, in dishonesty, there has been a return to an objective standard in the HL’s rejection of the subjective element of the test (whether the defendant realized that he was being dishonest by the standards of reasonable and honest people) in Ivey v Genting Casinos t/a Crockfords [2017], now confirmed by the Court of Appeal in R v Barton and Booth [2020].