‘The courts should make greater use of section 4 of the Human Rights Act 1998, rather than section 3, as the declaration of incompatibility encourages a dialogue between the courts, the executive and the legislature that preserves the doctrine of Parliamentary sovereignty.’ Critically assess this statement.

Public Law UOL 2012 Zone B Question 5

‘The courts should make greater use of section 4 of the Human Rights Act 1998, rather than section 3, as the declaration of incompatibility encourages a dialogue between the courts, the executive and the legislature that preserves the doctrine of Parliamentary sovereignty.’

Critically assess this statement.

Suggested Answer:

The question is concerned with the impact of section 3 Human Rights Act 1998 (HRA) on judicial interpretation of domestic statutes and whether this has somewhat created a salient threat to the intention of Parliament in enacting a statute. On the other hand, declarations of incompatibility under section 4 of HRA, seem to have an only persuasive effect and do not change the existing law in any way; the only pressure being political. The balance between the applicability of the two sections has to be dealt with as too much of judicial activism under section 3 may have an undesirable effect of creating yet another exception to parliamentary sovereignty.

HRA incorporated the European Convention on Human Rights (ECHR) (except for Art 13) into English law on October 2, 2000, under the mechanisms prescribed in the Act and not across the board. Art 13 would have given a remedy for a violation in any court of tribunal. The Government did not want to give citizens these powers. The Government felt that they could seek remedies in the higher courts, on appeal or in judicial review proceedings.

Section 2 HRA provides that when a court or tribunal is determining a question in connection with a Convention right it ‘must take into account’ judgements, decisions, or declarations of the European Court of Human Rights (EctHR).

Section 3 of HRA states that so far as possible, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. Where courts cannot interpret a piece of legislation as compatible, then certain courts may make a declaration of incompatibility, under section 4(2) HRA. Only the High Court, Court of Appeal, House of Lords, Privy Council and the Courts Martial-Appeal Court have this power. The declaration of incompatibility does not affect the validity and is not binding on the parties: section 4 HRA, where a court is considering taking the declaration of incompatibility, the Crown (meaning the Government) is entitled to notice and to be joined as a party to the proceedings: section 5 HRA.

Section 10 HRA provides for a fast-track legislative procedure designed to remove the incompatibility. A minister can use a statutory instrument to amend offending primary legislation. The minister is however under no compulsion to do so. When a new Bill is published, section 19 HRA obliges the sponsoring minister to make a written statement that it is compatible or decline to make a statement but indicate that the Government wishes to proceed. One desirable effect of making a positive statement is that it would reduce the declarations of incompatibility though the court still has the final say. On the other hand, if a statement is made in Parliament that the bill is compatible, then this does not oust the jurisdiction of the court under section 3 HRA to interpret it accordingly.

A purposive approach to statutory interpretation under section 3 HRA will enable domestic courts to protect the rights of the citizen against abuse or excess of power by the State. What needs to be explored is the limits to which section 3 HRA can be invoked and when section 4 operates. Another question is whether the court has to consider the application of section 3 before invoking section 4 HRA or whether the application of the sections is independent.

Lord Steyn has stated that HRA preserves the principle of Parliamentary Sovereignty. In a case of incompatibility, which cannot be avoided by interpretation under section 3(1), the courts may not misapply legislation. The court may merely issue a declaration of incompatibility which then gives rise to an executive (followed by legislative) power to take remedial action pursuant to section 10 HRA though not mandatory. This was also the view of Lord Hoffman in Ex parte Simms (says Sovereignty of Parliament is maintained).

Case law developed after the HRA show that under section 3 HRA, the court is to read primary and subordinate legislation in a way compatible with Convention rights, so far as it is possible to do so. This clearly goes well beyond the former use of the Convention to resolve ambiguities in statutes and to avoid the effect of section 3, there must be a clear indication of an intention incompatible with the Convention: R v A (N0.2). In that event, the court has no power to strike down primary legislation but may (at the level of the High Court or above) make a declaration of incompatibility under section 4.

In the landmark HOL case of R v A (2001), the apex court was prepared to interpret and apply its own duty under section 3 of HRA. The House had to construe section 41 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA), restricting evidence and questioning above the victim’s sexual history. The Law lords applied their interpretive duty under section 3 of HRA and gave proper regard to the protection of the complainant but effectively @read into@ the statue protection for the accused under Art 6.

In interpreting section 3 of HRA, he stated that the HRA section 3 obligation went far beyond the rule which enabled the courts to take the Convention into account in resolving any ambiguity in a legislative provision. Parliament placed on a court a duty to strive to find a possible interpretation compatible with Convention rights. It was much more radical than the ordinary method of interpretation which permitted a departure from the language of an Act to avoid absurd consequences. In accordance with the will of Parliament, in enacting the HRA, it would sometimes be necessary to adopt an interpretation which linguistically might appear strained. The techniques to be used would not only involve the reading down of express language in a statute but also the implication of provisions. Interpreting section 4 of HRA, he stated that a declaration of incompatibility was a measure of last resort. Lord Hope was not in agreement with his views and was committed to the principle that section 3 HRA does not change the traditional approaches to statutory interpretation and neither does it radically create any new exception as stated by Lord Steyn.

Thereafter, the same bold approach was adopted by the COA and then the HOL in Ghaidan v Godin-Mendoza(2001) EWCA. In Kay v Lambeth BC, it was held that in interpreting a statute, if a previous precedent in the UK was inconsistent with a Strasbourg precedent, then the courts must adhere to the domestic precedent. In the land law case of Beauline Properties v Palmer (2005), the High Court departed from the earlier COA decision in Buckinghamshire BS v Moran, and the HOL precedent of Pye v Graham, and give a radically different meaning to section 75 of Land Registration Act 1925. It is submitted that this sort of judicial activism is undesirable and the case of Beauline Properties v Palmer may not be flowed in the near future due to contravention with the Kay v Lambeth proposition of law on statutory interpretation after the advent of HRA.

In R(Chester) v SS for Justice and Another (2011), the central the issue was the disenfranchisement of prisoners under section 3 of the Representation of the People Act 1983 (RPA). The COA was urged to exercise judicial activism in invoking section 3 HRA and interpreting section 3 of RPA to confirm with convention rights and the Strasbourg precedents of Hirst v the United Kingdom and Greens and MT v UK (where it was held that the blanket ban on prisoners voting contravened the ECHR).

Law LJ in COA declined to interpret of ‘read down’ section 3 of RPA, so as to incorporate within it a judicial discretion as to the disenfranchisement of prisoners. He stated that this would be to confer a new constitutional power on the judges, and it could not be done under the guise of section 3 of HRA. He was adamant that if the law needed to be changed it would be a legislative act and nothing else. All he could do was to make a declaration of incompatibility. In relation to the government’s failure to introduce legislation on the matter, he stated that the court has no role to sanction government for such failures. Under the HRA, the minister has not the obligation to act on a declaration of incompatibility. The same was stated recently by the Supreme Court in the same case that it need not make any more declaration as the COA has already done it. In response to law decision, the government in November 2010 published the voting eligibility (Prisoners’ Bill 2011) to consider alternatives to amended section 3 of the RPA 1983. This goes to show the government do a response to the declaration of incompatibility on political grounds.

The landmark case where the decision of HOL in making a declaration under section 4 HRA generated much political pressure was the case of A (FC) and others v SS for the Home Department (2004). In this case, the appellants challenged the lawfulness of their indefinite detention under the Anti-Terrorism, Crime and Security Act 2001, an Act passed swiftly after the terrorist destruction of the New York World Trade Centre on September 11, 2001, which enabled the internment without trial of only foreign nationals whom the Home Secretary suspected were terrorist. There were no similar powers over British citizens. Seven Law Lords ruled that indefinite detention without trial was unlawful (in essence incompatible with Convention Rights) because it was a disproportionate interference with liberty (Art 5) and equality (Art 14).

Thereafter the Government were faced with a constitutional crisis. The new Home Secretary declined to release the suspects but announced he would await a decision by Parliament on the legislation, due for its annual renewal in spring 2005. This caused some of the special Government appointed advocates for the detainees to threaten to resign and caused some backbenchers to threaten trouble.

This political pressure led to the Parliament passing the Prevention of Terrorism Act 2005 (PTA) to replace the offending 2001 March 2005 Act, but it was ferociously debated. The Act allowed British and foreign terrorist suspects to be placed under a control order by the Home Secretary. Although this will be reviewed by a judge, it does not satisfy critics that it amounts to detention without trial. Nonetheless, in Re MB (2006), Mr Justice Sullivan rules that control orders, under the PTA breach these Articles 5 and were incompatible. In R (Black) v SS for Justice (2008), the COA granted a declaration of incompatibility in relation to section 35 of the Criminal Justice Act 1991.

The 1998 Act came under attack in May 2006, with the media fanning hostility to it after several cases and incidents. In the High Court, Mr Justice Sullivan supported a division to allow Afghan hijackers to remain in the UK until it was safe for them to return home. He criticised the failure of successive Home Secretaries to allow them to leave as ‘conspicuous unfairness amounting to an abuse of power’. Tony Blair attacked the division as an ‘abuse of common sense’. At that juncture, Tony Blair admitted that he needed to do something about the HRA though he was not clear whether it would be repeal or amendment. His statement, however, never saw the light of day. Firstly, it would have been contrary to the election manifesto which brought the Labour Government into power in 1997. Secondly, he stepped down and paved the way for Gordon Brown who finally passed the mantle of government to David Cameron, the current Prime Minister when the Conservative – Liberal Democrat coalition secured a majority in Parliament after the May 2012 elections.

In conclusion, from the above discussion and from the government point of view, section 4 declarations of incompatibility would encourage some input from the judiciary on the offending legislation and executive and legislature thereafter could take up with appropriate measures if the need so arises. According to Lord Steyn’s dicta in R v A, section 3, on the other hand, has endowed a new power to the judges to exercise greater judicial activism in construing statutes. The undesirable effect of this would be a partial dent on parliamentary sovereignty though judges camouflage their decisions with the statement that hypothetically parliament would not have objected to such a strained meaning on legislation. In practice, the strained meaning given to legislation may in fact run counter to the intention of Parliament when enacting a statute. The Kay v Lambert BC principle of interpretation of statutes is somewhat some comfort to legislators through this principle may not apply for statutes passed after HRA and a case of interpretation of a state coming up for the first time as was seen in the case of R v A.

Jury System

There are several advantages and disadvantages of the jury system. Firstly, the jury is an efficient system, with 800 years of success. The general public acceptance of the way the jury system works give society a feeling of acceptance that is the best way to decide on the outcome of indictable offences. However it may be slow and some trials like fraud can take many weeks or months due to lack of research defies assessment. Allan Doig in ‘Fraud’ stated that there are certain kinds of cases which are seen to be unsuitable for jury trials, such as complex and lengthy fraud trials. S43 of Criminal Justice Act 2003 provides for trial by judge alone to eliminate jury bias and reach fairer verdicts.

Secondly, S51 Criminal Justice & Public Order Act 1994 creates as an offence to intimidate or threaten to harm a juror. However, jury nobbling believed to be frequent resulting in wrongful acquittals. What if juror alleges racial or any other type of bias or wrongdoing by the jury, and no enquiry allowed into jury deliberations after a verdict. The Law Commission in Contempt of Court: Juror Misconduct and Internet Publication 2013 has reviewed and considered the ‘Facebook Scandal’ issue where the juror, Joanne Fraill was charged with disclosing information about jury deliberations on Facebook. Much recently, it has recommended a new statutory criminal offence should be introduced in dealing with the jurors who deliberately search on the internet related to the case that they are trying.

Thirdly, a very significant reason why jury system is advantages is the fact that 12 heads are better than one. A wide variety of opinions and input culminates together in the final decisions and with 12 people any bias is likely to be cancelled out. However, a jury box of 12 can be biassed against one party or the other. Local prejudice can be a problem in particularly emotive cases such as R v Litchfield. Simon Brown LJ said that the jury's views ought to be regarded as well-nigh sacrosanct given that under the law it is they who decide not merely the facts but also the point at which a breach of duty becomes the offence of manslaughter. There would need to be compelling grounds indeed before it would be proper for this court to say that the jury has set the standard impermissibly high.

Fourthly, jury’s decision can be made out what seems right and not whether the offence is illegal. A judge can only administer a verdict based on the fact laid before whereas a jury can decide based on opinion. It has been evident in R v Ponting and R v Kronlid & Others. However, as a juror as laymen, if the evidence points to one defendant being guilty and the other not, jurors can often be led into thinking that if one should be convicted. In other words, guilt by association. Some trials can be very narrowing to the jurors. This was evident in James Bulger trial where same jurors had to receive counselling after the trials.

Finally, if juries do understand the burden of proof, it will be an advantage of reducing the paedophile cases and child murders. However, jurors may not fully understand the trials and may be enticed to vote for the best barrister and not the best case. Prof Cheryl Thomas in ‘Are Juries Fair?’ stated that ‘while over half the jurors at perceived the judges direction as easy to understand, but only minority fully understand the direction in terms used by the judge. Base on this statement, it can be submitted that a training before proceeding with trials is necessary and the verdicts delivered by jurors without trial are always not reliable.

In R v Mirza, HOL believed that there were many objective safeguards in the jury system which could protect the impartiality and independence of the jury system. These safeguards like a randon selection of jurors, the oath is taken to give the true verdict, and instructions are given at the beginning of the trials by the judges to inform a prejudice, bias or misconduct can give use to an offence. However, it can be submitted that these safeguards are not sufficient in maintaining the impartiality and independence of the system.

Alternatively, Jury system can be replaced by a jury or panel of judges. This method is used in civil cases and some criminal trials in Northern Ireland known as Diplock Courts. This process is the least expensive and probably the most proficient way of running a trial, due to it eradicates public involvement there has been a strong opposition to this method. However by discarding the jury they also discard any violence and intimidation to jurors and also any possible bias.

A judge and 2 lay assessors can also be used. This technique is used in most Scandinavian countries such as Austria, Brazil and Germany. Japan has begun implementing a new lay judge system in 2009. Lay judges are appointed volunteers and often require some legal instruction. This keeps some public contribution, yet losses the time and cost of a jury. This method is thought as the adequate alternative. The verdict would be reached by both the judge and lay assessors. The lay assessors would be selected the same way as jurors, however, they amount of public participation would dramatically decrease.

The final alternative is having a judge and a miny jury. By reducing a number of jurors they would save some cost; conversely, most of the disadvantages would still remain. Despite all the disadvantages, it is still utilised today which suggest that it is an advantage to society more than it is a disadvantage.

Voluntary Intoxication

1. Provided that Gorge’s failure to act was the imputable cause of Flop’s death, he is guilty of manslaughter. A person charged with an offence of basic intent, like manslaughter, cannot rely on voluntary intoxication as a defence if his act was causative of the death of the victim (DPP v Majewski (1977); Lipman (1970))
2. Offences of basic intent include, in addition to manslaughter: malicious wounding or inflicting grievous bodily harm contrary to s 20 of the Offences Against the Person Act 1861 (Sullivan (1981)); assault occasioning actual bodily harm (Bolton v Crawley (1972)); and rape (Fotheringham (1988)).
3. In Bailey (1988), the Court of Appeal held that self-induced automatism other than that due to intoxication from alcohol or drugs will provide a defence even to crimes of basic intent except where the defendant was ‘reckless’ – in a general subjective sense – as to the risk of becoming an automaton.
4. That is, if the accused knew that by doing or failing to do something (for example, in the case of a diabetic taking too much insulin or not eating after having taken insulin) there was a risk that he might become aggressive, unpredictable or dangerous with the result that he might cause some harm to others, and that he persisted in the action or took no remedial action when he knew it was required, then it would be open to the jury to find that he was reckless and convict of an appropriate crime of basic intent (for example, malicious wounding, inflicting grievous bodily harm or assault occasioning actual bodily harm).
5. In these circumstances, despite the fact that he lacked the mens rea, the defendant may be convicted of an appropriate offence of basic intent.
6. This rule was also applied in Hardie (1988), where the defendant took a quantity of valium, a sedative drug. The valium was not prescribed to the defendant and the judge treated the case as an ordinary one of voluntary intoxication, ruling that, as it was self-induced, it was no defence to a crime of basic intent. The Court of Appeal quashed the conviction. The court held, distinguishing Majewski, that the rule regarding voluntary intoxication does not apply where the drug is not generally recognised as dangerous. That is, if the drug does not normally cause unpredictable behaviour, automatism resulting from its consumption may provide an excuse for all crimes, even those of basic intent. Only if the defendant was reckless in the Bailey sense can he be convicted of an offence (of basic intent).
7. Although automatism will often afford a ‘defence’ entitling the defendant to a complete acquittal, the causes of the condition must be examined. If there is a prior fault on the part of the defendant either because he is voluntarily intoxicated or has ‘recklessly’ failed to take steps to prevent himself falling into a state of automatism then his condition will not excuse a basic intent crime. If he is not responsible for the automatism, but it is the result of an internal condition that is likely to result in recurrent ‘malfunctioning’, the defendant will be classified as legally insane and entitled only to a qualified acquittal.

Critically evaluate the current law relating to criminal liability for omissions

With reference to decided cases critically evaluate the current law relating to criminal liability for omissions.

R v Miller (1983)
He must have created the dangerous situation inadvertently but he never released it.

*Keeping patients alive.

R v Stone & Dobinson (1977)
If you act on euthanasia, it is a positive act, not omission.

*Airedale NHS Trust v Bland (1993)
The court stated when removed the medication is a positive act, HOL gave permission.
It was held that is was unlawful for doctors to simply stop treatment if its continuance would confer some benefit on the patient. If no benefit at all would be conferred by the continuance of medical treatment, then the doctor are under no duty to continue to treat the patients.

According to 3 Lordships (Lord Lowry, Lord Browne-Wilkinson, and Lord Mustill) descending judgement, the distinction drawn by the HOL between an act and an omission is dubious (doesn’t make sense) in moral terms. What they suggesting is no different from what Prof William Wilson suggesting. Giving Antony slowly die is more tortures than just giving him medicine to kill him.
Find out more argument on this.

Whether omission should become a general duty of care.

1. It has been a long debate between the author whether the omission should be punished by law or not, many of them have argued in favour of it and many of them are going against of its idea. For example, B raped S, as a result S suffered from post trauma stress and wanted to commit suicide. She stood at the edge of her window saw her on the tenth floor but her maid saw what she was trying to do but did not stop her. S jumped to her death.  
• Distinguish main contract is a private contract.
• The main has a voluntary assumption of responsibility to the boss.
• Do we have created a dangerous situation?
• In relation to S, should the law of omission cover general duty?
2. Professor Andrew Ashworth is a strong supporter of the punishment for an omission, but at the same time, he put some limitation on the punishment on omission. The professor talk of 2 different views: conventional view and social responsibility view.
• In the conventional view, where he suggest that criminal law should not punish people unless and until there is a clear case. (Taking a very parental approach, we cannot simply punish people because morally we need to help people. The guilty act must be in the sense of law and not in the sense of morality. The law cannot by using the backdoor impose morality hence legality on me, force me to do something. In certain circumstances, you must impose duty but on circumstance situation. For example, people are drowning not because you didn't help is because they fell. Give supporting argument.)
• In social responsibility view, there is times and situation where people should be held one another and people living in the same society does owe some duties to others living with them.
3. Professor William Wilson
• we might be killing somebody but it seems morally right, but we don't do anything seems morally wrong) 
4. All of the current authors who support the theory of punishment are agree on the point that there should be certain circumstances where a person should ensure his safety first before helping others. “He should not put his life in danger in order to save other”. The moral duties should always be present in the society for the mutual relation among people.
• To examine the concept of R v Kennedy (No.2) (1999), an action of the victim.
• K gave B injection fill with drugs but the victim himself injected and died. The court stated since B is the one who injected, B conduct break the COC and there is no responsibility. Automatically, K is not responsible for B death.
• In R v Evans (Gemma) (2009), the appellant obtained heroin and gave some to her sister who self-administered the drug. The appellant was concerned that her sister overdosed so decided to spend the night with her but did not try to obtain medical assistance as he was worried she would get into trouble. COA stated for the purposes of gross negligence manslaughter, when a person had created or contributed to the creation of a state of affairs that he knew, or ought reasonably to have known, had become life threatening then, normally, a duty to act by taking reasonable steps to save the others life would arise.
• Same facts, different conclusion. In my opinion, Evans is not coming from the pageant hole, it is from the social responsibility view. (Positive act and negative act discussion)
5. There are also authors who support omission not to be penalised as they claimed that it is more of a moral duty than a statutory one.
6. Professor Glanville William is in an agreement with that point (don't take moral obligation into statutory): “a crime can be committed by omission, but there can be no omission in law in the absent of duty of act. The reason is obvious because if there is an act, someone acts but if there is an omission, everyone omits. (He is worried about floodgate)
7. Comparative Study. Countries already have existing general duty of care. Can the UK adopt the rule?

Criminal Law (2014): Murder + Loss of Control

David is a member of an ethnic and religious group that generally considers an emotional attachment to someone from outside that group as an affront to the family honour deserving of death. He discovers that his young daughter, Vicky, is planning to run away with Jerry, who is from outside the group. David and his son Peter confront Vicky and challenge her to deny the charge. She admits it and David and Peter in fury kill Vicky. They then find Jerry and attack him with an iron bar fracturing his skull. Jerry manages to escape and presents himself at hospital almost unconscious. The nurse on duty, thinking Jerry is drunk, has him removed from the premises. He is left on a bench outside the hospital. An hour later he dies. If he had been treated immediately, he would have survived.
Discuss.

General remarks
This is a question on murder with issues relating to causation and the partial defence of loss of self control.

A good answer to this question would…
include the following indicative elements.

• Identify offence – murder.
• Definitions.

Jerry

• The major issue is causation. Is the action of the nurse a novus actus interveniens (e.g. Cheshire, Smith, Jordan).
• Assuming it is not, can loss of self control be relied upon?

Vicky and Jerry
The issues relating to both Vicky and Jerry are similar.

• Was the killing the result of a loss of self control (s.54(1)(a))? Note that more of a cooling off period exists regarding Jerry.
• Is affront to family honour sufficiently grave to cross the first hurdle in relation to the ‘qualifying trigger’? Assuming it is, they have a justifiable sense of being seriously wronged (i.e. s.55(1)).
• A good answer will make particular reference to the cultural context and consider whether this is to be taken into account in deciding whether the context is grave and their sense of being seriously wronged justifiable.
• This ethnic/religious context is also relevant to the objective element in the defence. Would ordinary people with a normal degree of tolerance and selfrestraint and in the circumstances of D have reacted in this way? Is the ethnic and religious grouping to be taken into account on either or both of these matters?

Poor answers to this question…
tended to simply state the statutory provision without grappling with the specific issue of the ethnic/religious context, or ignored the defence altogether and concentrated simply on talking about murder and causation. A significant minority of candidates even proposed insanity or diminished responsibility as the appropriate defence. This was disappointing. Although legal doctrine dictates case outcomes this does not mean a lawyer is entitled to leave their common sense at home!

Student extract
The legal issue to consider whether David and his son Peter are liable for Vicky’s and Jerry’s death, and if they can rely on any defences. In relation to Vicky’s death one can clearly construe it be murder.

Murder is the unlawful killing of a human being with intention to kill or cause grievous bodily harm. Moloney Here Vicky is a human being and they kill her unlawfully. It is ambiguous if they had specific intent to kill because the question merely says “in fury kills Vicky”. Therefore they may be able to rely on the defence of loss of self-control and reduce the charge of murder to voluntary manslaughter.

This is given in the coroners and Justice Act 2009, section 54 (1) where a person kills or is a party to the killing of another, D.D not to be convicted of murder if, a) there was a loss of self-control, b)had a qualifying trigger and is in line with c)the evaluative test.

Here both Peter and David were parties to the killing of Vicky and they did have a loss of self-control since they “in fury kill Vicky”. Therefor S.54(1)(a) is satisfied.

Secondly we must see that they can rely on any qualifying triggers given in section 55. Here the most appropriate provision would be S. 55 (4). This done or said both which a) constituted circumstances of an extremely grave character and b) cased to have a justifiable sense of being seriously wronged. Here David and Peter felt that they were seriously wronged by what Vicky had done, by going against their extreme religious beliefs by having an emotional attachment of (Jerry) someone outside their group. However the issue is that it is already a known fact that anyone who commits the above felony will reserve a “deserving death”. If the prosecution brings this fact and claims that there was no loss of control resulted by a qualifying trigger since death was a sure result plan, David and Peter will not be charged with murder. However if the jury believes otherwise the provision of S.54(1)(b) will be satisfied through S.55 (4). Moreover there are no limitations mentioned in S.55 (6) since Vicky did not incite her own death.

Finally we must see whether according to S.54(1)(c) a person of D’s sex and age with a normal degree of tolerance….. will act in the same way as D. This is a controversial issue. Since it is unlikely for a reasonable person would “kill his own daughter/sister just because she got emotionally attached to someone they disprove of. Therefore it is unlikely this defence will be satisfied. However as S.54(5) says the jury must assume the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.

Comment on extract
This extract contains what is needed for a very good answer. There is a problem with the analysis of ‘specific intent’ in that fury would not negate such intent but this is a minor quibble given the overall quality of analysis.

It deals with the issues methodically and reasons its way through to a conclusion. Thus it states that the fact that Peter and David ‘killed in a fury’ is evidence that they lost their self control. It also reasons that the prosecution might counter the claim that the loss of self control resulted from a qualifying trigger by reasoning that this was effectively an execution in the manner of an honour killing (‘deserving death’/‘sure result plan’). This could have been expressed better but the point was nevertheless made. Few other candidates went so deeply. Finally it makes the point that it is unlikely the court will accept the idea that s.54(1)(c) is satisfied since the reaction to the breach of honour is very extreme.

Criminal Law (2014): Mens Rea

Compare and contrast the defences of insanity and automatism.

General remarks
Most candidates know the McNaghten rules and know what automatism means. This question tests your understanding of these defences. Only if you know what they have in common and what differentiates them do you manifest such understanding.

Common errors
Failing to compare and contrast the two defences.

A good answer to this question would…
include the following indicative elements.

• Description and exposition of the defences, including definitions

Comparison

• Both are mental condition defences.
• Both affect capacity.
• Both operate as excuses.
• Both require support of medical evidence.
• Automatism (always) and insanity (usually) both require the defendant’s mental condition to affect D’s understanding of the nature and quality of his act.
• Both negate mens rea and actus reus.

Contrast

• Insanity, unlike automatism, requires a disease of the mind. Reference should be made to the external/internal dichotomy created by Kemp. 
• Automatism is an absolute defence. Insanity is a qualified defence.
• Prior fault operates for automatism. Not for insanity.
• Burden of proof differences.

Poor answers to this question…
tended to be light on case law, did not define one or other of the defences accurately and did not attempt to show their similarities and points of difference.

Student extract
The defences of Insanity and automatism are both failure of proof defences used to negate or prove that a particular element of a crime is missing to negate/contend liability. The defences themselves while seemingly at the opposite ends of a spectrum from one another do in fact have similarities. This essay will discuss scenarios courts have considered the scope of each defence and the rules that govern them.

Let us first look at the defence of Automatism. Automatism is defined in dawson. It is involuntary conduct where the defendant is effectively unconscious when doing the act the Act is not being done by them however the act is happening to them. This basically means one who is in a state of automatism is unaware that they are doing such actions. In Hill v Baxter it was equated to a swarm of bees or a blow from a stone.

The defence of automatism is very useful in the sense that it can in fact be used to negate the Actus Reus of a crime, they can use it to say they did not commit the act as explained before it “happened to them”. By being able to negate the Actus reus of a crime automatism unlike insanity is open to be a defence even for strict liability offences there are offences where by the proof of Mens Rea which is what insanity negates is not required on the Actus Reus or action itself is what is legally wrong eg. Dangerous driving (there is no need to prove that they intended to drive dangerous or hurt someone, the act of driving dangerously exposes them to criminal liability in itself).

Comment on extract
This extract shows a method and understanding. It begins, as it should do, with a brief introduction which sets the scene for the future discussion. It gives a good definition of automatism and explains and illustrates how it can be used to negate the actus reus of a crime and thus can be used as a defence even to strict liability crimes. The rest of the answer follows this orderly and well reasoned path and ended up with a very good mark.

Criminal Law (2014): Manslaugther

One day Abezola and Rahama go mountain climbing. Upon reaching the summit Abezola tells Rahama that he is going to kiss her. Rahama, who has strong moral and religious principles, says, “If you do, I shall jump.” Abezola does not believe Rahama, and kisses her. Rahama then jumps off the summit and falls 20 metres on to a ledge. Abezola, thinking Rahama has been killed and that he will be held responsible, carries her to his car, intending to drop her down a disused mine shaft at another location to avoid detection. After travelling a few hundred metres the car is involved in an accident with a drunk driver. When the police arrive Abezola has survived and Rahama is found to be dead. At the post mortem it is discovered that it was the crash and not the fall which killed Rahama.
Discuss Abezola's potential criminal liability.

General remarks
The question is designed to test your ability to structure an answer which contains a number of possible outcomes, particularly liability for homicide, where the issue is causation. On the assumption that the chain of causation is broken, you should discuss any default crime for which Abezola may be liable.

Law cases, reports and other references the Examiners would expect you to use Church, Newbury and Jones, Dawson, Watson, Roberts, Williams, Blaue, Dhaliwal, Kennedy, Lebrun.

Common errors
Many candidates talked almost exclusively about causation in general rather than the crime (manslaughter) of which causation is but an ingredient. Many others began at the wrong end and talked about assault, rather than the right end, namely constructive manslaughter, with assault being the unlawful act to be relied upon in establishing this. Nevertheless, credit was given for the discussion in so far as it is relevant. A significant number of candidates talked about impossible attempts in relation to Abezola’s attempt to dispose of the body. This was not appropriate since to commit an attempt (e.g. attempted murder) requires the defendant to intend to kill by the act.

A good answer to this question would…
include the following indicative elements.

• The kiss.
• Constructive manslaughter:
• The definition – unlawful and dangerous act causing death.
• The unlawful act = common assault in the form of a kiss. Kisses are not (Church) dangerous per se (see e.g. Dawson) but may become so by virtue of context and knowledge (e.g. Watson). On that basis the kiss is dangerous.
• Causation – Abezola's belief is not relevant to causation. The issues are whether the jump breaks the chain of causation and, if it does not (indicative case law: Roberts, Williams, Blaue, Dhaliwal, Kennedy) whether the death by car crash is a novus actus interveniens.
• The position is complicated by the 'supposed corpse' (Thabo Meli) aspect of the case. LeBrun makes clear that in the usual supposed corpse case it is simply a question of causation. Death in the course of clearing up the crime is a link and not a break in the chain. A really good answer will, however, identify Thabo Meli and LeBrun as a possible red herring as here the car crash is an independent and sufficient cause of the death.

Poor answers to this question…
tended to talk almost exclusively about Abezola’s liability for assault or sexual assault without considering manslaughter as a possibility, or simply regurgitated their lecture notes on causation without linking them to a specific crime which Abezola may have committed.

Criminal Law (2014): Theft

(a) With reference to both case and statute law explain and discuss the meaning of appropriation for the purpose of the Theft Act 1968.

(b) Daniel takes his watch to a watch mender for a service. When he goes to collect the watch, he finds the shop unmanned and his watch lying on the counter. Annoyed that his watch has been so carelessly exposed to theft, he takes his watch and decides not pay for the service. In fact the watch had not yet been serviced.

Discuss.

General remarks
Two part questions receive 50 per cent of the marks for each part so it is important to spend equal time and effort on both and not do such a question unless you can do all of it!

Common errors
With regard to part (a), talking about all the elements of theft generally rather than the specific element of appropriation, with little by way of discussion and analysis. With regard to part (b), too many candidates talked about obtaining services dishonestly and making off without payment to the detriment of the analysis of theft, specifically the issue of ‘belonging to another’, and dishonesty.

A good answer to this question would…
include the following indicative elements.

Part (a)

• Explanation and discussion of how s.3(1) defines appropriation far more broadly than a taking, including the case of coming by property innocently.
• Examples of appropriations – indicative cases are Pitham and Heyl, Morris, Chan Man Sin v AG for Kong Kong.
• Relevance of transferor's consent – indicative cases are Morris, Lawrence, Gomez, Hinks.
• Discussion of the decision in and problem posed by Hinks.

Part (b)

• Explanation and discussion of the key importance of establishing the ‘belonging to an other’ element and dishonesty.
• Section 5(1). Does Turner apply or does the context (no lien if the work has not been done) and the negligence involved in leaving it exposed entitle D to unilaterally terminate the bailment (Meredith) such that when the appropriation occurs it is not of property 'belonging to another'
• Dishonesty, in particular s.2(1)(a) Theft Act 1968, and Ghosh.
• Candidates were given credit also for discussing the default crime, of making off without payment, which requires discussion of whether payment of the spot was due, and dishonesty as above.

Criminal Law (2014): Fraud

Discuss Wayne's potential liability under the Fraud Act 2006 in each of the following scenarios.
Do NOT discuss Wayne's liability for theft.

i. Wayne, desperate for the lavatory, goes into a private members’ club of which he is not a member. He winks at the doorman who assumes that he is a member and lets him through. Wayne uses the lavatory and, having washed his hands with the soap provided, leaves the club.

ii. Eve goes into Rustbucket Cars and asks to see some low mileage second hand cars. One attracts her particularly and she asks Wayne, the salesperson, ‘How many miles does this car do to the gallon?’ ‘60’, says Wayne although he knows that the fuel consumption is only 60 miles per gallon for motorway driving and only 35 miles per gallon under average conditions.

iii. Paul, an art dealer, sees Wayne's painting and, hoping for a bargain, offers Wayne $1m for it. Wayne realises that Paul thinks the painting is by the famous painter John Constable. In fact it was painted by Constable’s sister and is worth no more than $1,000. Wayne accepts Paul's offer.

iv. Wayne advertises his car for sale saying, 'BMW for sale. One year old. One careful owner, £25,000.' Sally comes to view the car and checks the mileage on the odometer which shows a recorded reading of 10,000 miles. On that basis she buys the car. In fact the car had done 110,000 miles but the odometer reading was faulty. Although Wayne was not responsible for the faulty reading he was aware of it. The car would be worth £25,000 if the reading was correct but in fact it is worth only £20,000 with its true mileage.

General remarks
This question on fraud is designed to test your understanding of what counts as a representation, what makes it false, when silence can amount to a representation and when silence can amount to fraud ven where it does not amount to a representation.

Common errors
Failing to identify in each case the precise representation made and analysing why, if at all, it is false.
A good answer to this question would… include the following indicative elements.

• Section 2 Fraud Act issues.
• Does he by walking in and winking impliedly by conduct represent he is a member?
• Does he intend to make a gain/cause a loss? Fraud refers only to money or property. The only property involved is soap and water.
• Dishonesty – Ghosh.
  Section 11 Fraud Act issues.
• The services must be made available on the basis that payment has been, is being or will be made for or in respect of them. Does this (payment) include a membership subscription?
• Dishonesty.
• Section 2 Fraud Act issues.
• Falsity of the representation.
• Candidates should identify the misrepresentation as misleading, and that
• Adam knows that it is, or might be, untrue or misleading.
• Section 2 Fraud Act issues.
• Has Adam made a representation concerning the authorship of the painting? His silence will not constitute such a representation unless possibly:
• he is a dealer or acknowledged expert, particularly if the painting is in his shop and all the other paintings therein are by ‘acknowledged masters’. This may be an implied representation by conduct. The representation being that all the paintings in my shop are by acknowledged masters. Of course, if the painting was priced at a low figure no such implied representation would arise.
• it cannot be argued that Adam's knowledge relative to that of Paul places Paul in a position of reliance on him which a failure to discharge will amount to a representation. Indicative cases are Silverman/Greig.
• Section 4 (fraud by abuse of position) probably cannot apply for the above reasons.
• An issue also arises as to whether s.3 (failure to disclose) applies. Candidates should point out that this requires a legal rather than a moral duty and that, in the absence of a relationship of trust, one probably does not exist.
• Dishonesty – Ghosh.
• The advertisement may be accurate but is it misleading in the sense that it is only a half truth? It may be argued that he is representing more than meets the eye. Although silence does not amount to a representation it may make a representation misleading because of the overall context. The context includes the price. It may be argued that by pricing the car at 25k he is impliedly representing that the car's mileage is as the odometer states.

Poor answers to this question…
tended to avoid grappling with the issue of whether a representation had been made and whether it was false and concentrated in each case on s.3. Section 3 is peripheral at best when a false  representation has actually been made and it is not worth wasting time over unless, in cases of non-disclosure, there is a clear legal obligation to disclose.

Criminal Law (2014): Murder

David is a member of an ethnic and religious group that generally considers an emotional attachment to someone from outside that group as an affront to the family honour deserving of death. He discovers that his young daughter, Vicky, is planning to run away with Jerry, who is from outside the group. David and his son Peter confront Vicky and challenge her to deny the charge. She admits it and David and Peter in fury kill Vicky. They then find Jerry and attack him with an iron bar fracturing his skull. Jerry manages to escape and presents himself at hospital almost unconscious. The nurse on duty, thinking Jerry is drunk, has him removed from the premises. He is left on a bench outside the hospital. An hour later he dies. If he had been treated immediately, he would have survived.

Dicuss.

General remarks
This is a question on murder with issues relating to causation and the partial defence of loss of self control.

A good answer to this question would…
include the following indicative elements.

• Identify offence – murder.
• Definitions.

Jerry

• The major issue is causation. Is the action of the nurse a novus actus interveniens (e.g. Cheshire, Smith, Jordan).
• Assuming it is not, can loss of self control be relied upon?

Vicky and Jerry
The issues relating to both Vicky and Jerry are similar.

• Was the killing the result of a loss of self control (s.54(1)(a))? Note that more of a cooling off period exists regarding Jerry.
• Is affront to family honour sufficiently grave to cross the first hurdle in relation to the ‘qualifying trigger’? Assuming it is, they have a justifiable sense of being seriously wronged (i.e. s.55(1)).
• A good answer will make particular reference to the cultural context and consider whether this is to be taken into account in deciding whether the context is grave and their sense of being seriously wronged justifiable.
• This ethnic/religious context is also relevant to the objective element in the defence. Would ordinary people with a normal degree of tolerance and selfrestraint and in the circumstances of D have reacted in this way? Is the ethnic and religious grouping to be taken into account on either or both of these matters?

Poor answers to this question…
tended to simply state the statutory provision without grappling with the specific issue of the ethnic/religious context, or ignored the defence altogether and concentrated simply on talking about murder and causation. A significant minority of candidates even proposed insanity or diminished responsibility as the appropriate defence. This was disappointing. Although legal doctrine dictates case outcomes this does not mean a lawyer is entitled to leave their common sense at home!

Student extract
The legal issue to consider whether David and his son Peter are liable for Vicky’s and Jerry’s death, and if they can rely on any defences. In relation to Vicky’s death one can clearly construe it be murder.

Murder is the unlawful killing of a human being with intention to kill or cause grievous bodily harm. Moloney Here Vicky is a human being and they kill her unlawfully. It is ambiguous if they had specific intent to kill because the question merely says “in fury kills Vicky”. Therefore they may be able to rely on the defence of loss of self-control and reduce the charge of murder to
voluntary manslaughter.

This is given in the coroners and Justice Act 2009, section 54 (1) where a person kills or is a party to the killing of another, D.D not to be convicted of murder if, a) there was a loss of self-control, b)had a qualifying trigger and is in line with c)the evaluative test.

Here both Peter and David were parties to the killing of Vicky and they did have a loss of self-control since they “in fury kill Vicky”. Therefor S.54(1)(a) is satisfied.

Secondly we must see that they can rely on any qualifying triggers given in section 55. Here the most appropriate provision would be S. 55 (4). This done or said both which a) constituted circumstances of an extremely grave character and b) cased to have a justifiable sense of being seriously wronged. Here David and Peter felt that they were seriously wronged by what Vicky had done, by going against their extreme religious beliefs by having an emotional attachment of (Jerry) someone outside their group.

However the issue is that it is already a known fact that anyone who commits the above felony will reserve a “deserving death”. If the prosecution brings this fact and claims that there was no loss of control resulted by a qualifying trigger since death was a sure result plan, David and Peter will not be charged with murder. However if the jury believes otherwise the provision of S.54(1)(b) will be satisfied through S.55 (4). Moreover, there are no limitations mentioned in S.55 (6) since Vicky did not incite her own death.

Finally we must see whether according to S.54(1)(c) a person of D’s sex and age with a normal degree of tolerance….. will act in the same way as D. This is a controversial issue. Since it is unlikely for a reasonable person would “kill his own daughter/sister just because she got emotionally attached to someone they disprove of. Therefore it is unlikely this defence will be satisfied. However as S.54(5) says the jury must assume the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.

Comment on extract
This extract contains what is needed for a very good answer. There is a problem with the analysis of ‘specific intent’ in that fury would not negate such intent but this is a minor quibble given the overall quality of analysis.

It deals with the issues methodically and reasons its way through to a conclusion.
Thus it states that the fact that Peter and David ‘killed in a fury’ is evidence that they lost their self control. It also reasons that the prosecution might counter the claim that the loss of self control  esulted from a qualifying trigger by reasoning that this was effectively an execution in the manner of an honour killing (‘deserving death’/‘sure result plan’). This could have been expressed better but the point was nevertheless made. Few other candidates went so deeply. Finally it makes the point that it is unlikely the court will accept the idea that s.54(1)(c) is satisfied since the reaction to the reach of honour is very extreme.

Criminal Law (2014): Intention & Recklessness

In English law what is meant by:
(a) intention; and
(b) recklessness.

What do these two states of mind have in common, what differentiates them, and why has there been uncertainty surrounding their definition?

General remarks
Most candidates know what intention means and what recklessness means. They also know the different forms of intention and recklessness. This question tests your understanding of these fault elements. Only if you know what they have in common and what differentiates them can you manifest such understanding.

Common errors
Many candidates simply regurgitated lecture notes on intention and recklessness, making little or no attempt to compare and contrast. It was not expected that you should identify all or even most of the points of contrast and comparison so long as you mentioned some key points. That would be enough to get a decent mark if well written and discussed.

A good answer to this question would…
contain the following indicative elements:

• how intention and recklessness figure in criminal liability.
• definitions and brief outlines of the elements of each offence
• indirect intention has been successfully separated from recklessness by Woollin. It would be useful to explain why it is important that the courts should be able to distinguish intention from recklessness and how, following Hyam, they were once conflated.

The following are the some of the more obvious points of comparison and contrast.

Comparing

• Both are forms of subjective fault. Caldwell recklessness (no foresight required) involved objective fault which was another point of contrast with intention rather that a point of comparison.
• Both involve degrees of choice/commitment to the outcome which render punishment deserved. A very good answer would explain how the fault terms reflect the retributive theory of punishment.
• Indirect intention and recklessness have fault based on foresight of the consequences in common.
• Objective and subjective recklessness. Indicative cases are Cunningham, Stephenson, Parker, Caldwell, Elliot, R v G.

Contrasting

• Recklessness reflects a lesser degree of commitment to the outcome than intention (desire versus willingness to run risk) and so may represent a lesser degree of fault justifying lesser label and penalty.
• Directly intended consequences are desired. Recklessly caused consequences are not. We have indifference at most.
• Indirect intention requires knowledge of the certainty that a consequence will ensue. Recklessness requires simply awareness of the risk that it may ensue. The two still are difficult to separate at the top end where the accused foresees the very high probability of the consequence.
• Recklessness, as a fault term, requires the risk taken to be unjustified (i.e. good motives stop risk-taking from being blameworthy and punishable).
  This is not the case with (oblique) intention. One can obliquely intend a consequence (and so be punished for it) even if one has a good motive. A very good answer will make the caveat that the Woolin special direction makes this difference more theoretical than real.

The source of uncertainty

• The influence on intention’s uncertain meaning of motive Adams, Gillick, Re A etc. The Woollin direction allows the jury to take account of motive due to the ambiguity of the judicial direction.
• The influence on intention's uncertain meaning by ‘wicked’ killings (e.g. Hyam).
• The influence on recklessness's uncertain meaning by indifferent mindlessness, particularly in criminal damage (e.g. Parker, Caldwell).
• The influence on recklessness's uncertain meaning by the errors of the young and inexperienced, particularly in criminal damage (e.g. Stephenson, Elliot, R v G).

Poor answers to this question…
typically did not define the terms properly nor compared or contrasted, nor explained the source of uncertainty.

Criminal Law (2014): Omission

Alina accidentally collides with Casper who is supervising his child at the side of a swimming pool. Alina bangs her head and falls into the water. Henry, an off-duty lifeguard at the pool, sees this but does nothing to help. Neither does Casper although he sees that Alina is struggling in the water. Another swimmer, Mona, begins to effect a rescue by dragging Alina towards the side. Ellie, the official lifeguard, seeing that things are apparently in hand, returns to reading her newspaper. Meanwhile Mona, on realising she is late for an appointment, desists from any further efforts and leaves Alina still struggling in the middle of the pool, reasoning that someone else can effect the rescue. It is left to Bruce, another swimmer, to save Alina but by the time Alina is
removed from the pool she is unconscious. She remains unconscious for three days but makes a full recovery.

Discuss the possible criminal liability of Casper, Henry, Mona and Ellie.

General remarks
This is a question which tests not only your knowledge and understanding of the law but also your willingness to read and answer the question since, unusually for these kinds of problems, no death has occurred. Your job was to identify what crime, if any, may have been committed, and whether it could be committed by omission.

Common errors
Very few candidates talked meaningfully about what crime, if any, the various parties had committed, spending most of their time talking about duty situations and whether they apply. As a result, relatively few achieved the highest marks. A good answer to this question
identified the potential crimes committed and considered the issues arising in relation to each, as follows.
There are two possible crimes, s.47 and s.20.
Criminal liability for a result crime generally requires an act. An omission will count as the actus reus only if:

1. the crime charged is capable of commission by omission. Assault is not (Fagan). Section 20 may be, given that it does not require anything by way of assault or direct application of force (Burstow).
2. the respective parties owe a duty of intervention and will only support a conviction if the breach of such duty causes the result.

Liability:

Henry – no duty of intervention as his contractual duty as a lifeguard only operates when he is on duty.

Casper – Alina's fall into the water is not the result of any voluntary act of Casper and so Casper's liability depends upon him having a duty of rescue. This in turn depends upon whether the Miller principle (has he caused the dangerous situation) or its Evans variant (has he contributed to it) applies or whether simple involvement is/should be enough. We did not expect candidates to consider this last point but credit was given if they did.

Mona – her liability depends upon the application of the assumption of duty category (Instan) and also depends upon whether, assuming she is under such a duty, her desisting has caused the result (Morby). We didn't expect it, but some discussion of substantial (i.e. not the sole) cause would be useful. Some candidates, quite reasonably, treated this as a variation on the Miller principle. Credit would have been given for this.

Ellie – she is under a contractual duty but there are issues of breach. Is it reasonable not to intervene where others are doing your job? And causation as above regarding Mona.
Poor answers to this question… simply talked about the various duty situations and did not identify the offences which were chargeable or, not having read the question properly, talked about the
parties’ liability for manslaughter.

Poor answers to this question…
simply talked about the various duty situations and did not identify the offences which were chargeable or, not having read the question properly, talked about the parties’ liability for manslaughter.

Criminal Exam (2014): Accomplice to the Robbery & Murder

1. Ahmed and Bashir are engaged in a bank robbery. Unknown to them Solly, a customer in the bank, is an off-duty policeman. Solly runs over to them intending to make an arrest. Zafar, another customer, believing Solly to be another robber, intentionally trips him up, thus making it easier for Ahmed and Bashir to escape.
   
   Discuss whether Zafar is an accomplice to the robbery.
2. Jack and Jill decide to burgle Humpty's house. Jill takes with her a baseball bat as is usual when the two burgle houses together. She has sometimes had occasion to use it on householders who have returned home unexpectedly. On this occasion Humpty surprises Jack and Jill in the course of the burglary. Jill finds she has left the baseball bat in another room and so she takes out a knife. Jack tells her to put it away and runs off. Jill murders Humpty with the knife.
   
   Discuss whether Jack is complicit in the murder.

General remarks
There is quite a lot in this two part question on complicity and so we did not expect candidates to cover all of the above points to get a good mark.

Law cases, reports and other references the Examiners would expect you to use
(a) indicative cases include Johnson v Youden and Carter v Richardson.
(b) see below.

Common errors
In (a) there was insufficient discussion of the principles governing liability as an accessory, in particular the intention to assist the principal with knowledge of the facts which make their action a crime. Indeed a minority of candidates went so far as to say that Zafar was an accessory to robbery. Others avoided the complicity element entirely and based discussion around mistake/prevention of crime relying on Williams (Gladstone). Clearly there is no need to rely on this defence unless
Zafar is complicit in the first place, which he is not. A good answer to this question would… include a descriptive element and identification and discussion of the major issues arising on the facts as follows.

(a) A good answer should first outline the basic elements of accessoryship including the actus reus of assisting or encouraging the principal in his commission of an offence and an intention to assist or encourage that commission. It should then move on to consider the requirement of knowledge. Zafar does not intend to assist A and B's commission of robbery by hampering the efforts of Solly to arrest them unless he knows or believes Solly to be trying to prevent the robbery or arrest them.

(b) A good answer should first outline of the principles governing joint enterprise liability. The joint enterprise is burglary. The secondary offence, committed by Jill, is murder. Jack and Jill are joint principals to burglary. Jill is guilty of murder as principal. The issue concerns joint enterprise liability and withdrawal, specifically:

• Whether Jack contemplated Jill's use of the knife with mens rea for murderin which case he is complicit (Powell) unless his order to put it away and running off counts as a withdrawal (Becerra and Cooper). Note that there is no evidence that he knew of the knife and so no basis upon which the jury could conclude that he contemplated its use.
• Whether Jack's contemplation that the baseball bat might be used with themens rea for murder by Jill in such a circumstance renders him complicit if, with the mens rea for murder, Jill uses a different weapon (English, Carpenter, Mendez, Chan Wing Siu are indicative cases). These authorities suggest that since a knife is fundamentally different from a baseball bat (English, Rahman) or more lethal than a baseball bat (Mendez) he will not be complicit in murder.
• Whether Jack is nevertheless liable for manslaughter (Carpenter) or nothing (except burglary) (Mendez).

Poor answers to this question…

A large minority of candidates answered both parts of the question without reference to complicity, restricting their analysis in (a) to the issue of prevention of crime and in (b) to the issue of Jill’s liability for murder.

Can you stopped by a policeman?

Sometimes, I noticed people were being stopped by policemen due to many reasons.

What can you do when a policeman stops you?

Smile, and nothing but the smile. Smile! 

A smile is the prettiest thing you can wear on your face.

Do remember to add some human touch by asking how is their day :) You have to understand they are on duty and we have to respect each other as a neighborhood principle.

In a short moment, they will request you show them your ID and driving license. 

You may then have the right to ask him to show you his police authority card. 

There are three types of ID:
White Card: he is a police reserve

Yellow Card: he is lower ranked police

Blue Card: he is of the rank of inspector and above

By having ascertained about his identity, you may give him your name, ID.

Of course, after handling them your ID, they may start asking you many questions. 

In deciding whether or not you are obliged to answer them, it is important to know whether you are under arrest or policeman was merely stopped you to help them with their inquiries.

If you are being arrest:

1. The policeman will state in terms he is arresting you. "You are under arrest."
2. He may use force to restrain you. For example, by handcuffing a person.
3. When by words or conduct he makes it clear that he will and if necessary, he may use force to prevent the individual from going where you may want to go. (s15 of CPC)

If three things stated above have never happened to you while being stopped, you are likely not being arrested. However, it is always advisable to ask the police officer the concerned whether you are under arrest to be assured.

If you are not under arrest, besides giving them your ID, you may refuse to answer or to follow them to the police station or anywhere else. The general rule is that no one is obliged to help the police with their inquiries. It may be a social duty or moral duty to do so, but there is no law to say that you must.