Table of Contents

Part A..

A)

Part B..

A)

B)

Part C..

References.

Criminal Law - Part A

a) The facts of the case present how Joe hatches a plan to win back Cindy after she had left him for another man. The plan required Joe to place too much weight onto Cindy’s bar, which she would inherently be unable to lift and Joe would go onto save her. However, the situation went out of control and Joe was way too slow in intervening. Cindy suffered from a broken neck and as the paramedics were called in, they dropped Cindy twice on the way to the hospital. Furthermore, Cindy refused life saving treatment, as a result of which she later succumbed to her injuries and perished.

Considering the facts of the case study as discussed above, Joe would be criminally liable for Gross Negligence Manslaughter, where the death is a well determinable result of an act or an omission of an act that is grossly negligence on the part of the defendant.[1] It is important to note that gross negligence manslaughter is an offence under the common law system, and is an indictable offence.[2] While Joe was responsible for Cindy’s broken neck that eventually led to her death, albeit also including negligence on the paramedics’ part and Cindy’s refusal to receive life saving treatment, Joe did not intend to cause any real damage to Cindy, let alone kill her. Criminal liability within common law nations such as the United Kingdom requires the presence of both the ‘mens rea’ and the ‘actus reus’. However, cases of gross negligence manslaughter typically do not comprise of the ‘mens rea’ or the motive as evident in the case of Joe. The ‘actus reus’ comprises of the action, where Joe deliberately put on excess weight onto Cindy’s bar in a reckless and negligent manner.

The judgements passed in “R v Bateman (1925) 19 Cr App R 8” is extremely relevant in this regard, where the Bateman Test came into existence and is widely relied upon cases involving involuntary or negligent manslaughter.[3] The test highlights four major points including the duty of the defendant to ensure reasonable care, breach of the duty of care, death of the deceased due failing to exercise the duty of care and negligence that amounts to disregard for the safety of the deceased. Considering the actions engaged in by Joe, the Bateman Test would be completely satisfied, although he could claim a partial defence in terms of how the paramedics dropped her and Cindy refused life saving medical treatment. Joe should have ensured carefulness and reasonableness as he was Cindy’s trainer, but his ‘mens rea’ or the motive was fundamentally reckless as he did not consider the potential risks of his actions. The ‘actus reus’ or the action where he overloaded Cindy’s weight bar eventually caused her neck to break, and it would naturally impose the criminal liability of the injury on to Joe. A standard of care was naturally required from Joe since he was the trainer, as established in the case law of “R v Adomako [1995] 1 AC 171”, which he evidently failed to exercise.[4]

The facts of the case involving Alex depict him walking with his girlfriend Bella. He spots his old rival Karl, who smiles at him. Bella goes on to provoke him stating how no man of hers should be intimated by Karl. Alex becomes enraged and takes out their newly bought steak knife and runs towards Karl, who then in fear of an attack get hit by a passing car as he tries to run away without concentrating on the road. Bella was cheering and chanting the whole time supporting Alex.

Based on the facts presented above, it could be inferred that the criminal charge of common assault as well as manslaughter. Common assault is covered within the Criminal Justice Act 1988, where section 39 provides for the penalty and the mode of trial.[5] While no specific mention of the term common assault is mentioned within the statute, the ingredients that lead to the determination of a crime as a common assault is predominantly done on the basis of precedents and relevant case laws. Considering the actions engaged in by Alex, the ‘actus reus’ would be formed as he takes out the knife and starts running towards Karl in a manner where Karl apprehends and fears a potential use of force that could lead to personal injury or even the loss of his life. The ‘mens rea’ would also be formed as the motive behind Alex’s actions was to threaten Karl by showing him the knife and instilling a sense of fear in him.

While Karl is hit by a passing vehicle due to the actions of Alex, the liability of the injuries inflicted upon Karl would certainly be imposed upon Alex due to his negligent and reckless behaviour. Any reasonable man would have been aware that the safety of Karl could be compromised by a similar action, all the more so as they were on the street. It is however, not depicted, as to whether Karl dies due to his injuries while it is mentioned that he refuses two basic procedures owing to his religion. Had Karl succumbed to his injuries and died, Alex would also be liable for involuntary manslaughter, albeit he could use Karl’s refusal of two basic procedures as a partial defence.

An important case law in this regard relates to the judgement passed in “Tuberville v Savage [1669] EWHC KB J25” where it was held that both the tort of assault and criminal offence of a common assault within the common law system were necessary to impose criminal liability.[6] Karl not only threatened Alex through his actions but also advanced towards him, thus further adding merit to Karl’s apprehension of imminent threat or danger. Furthermore, the ‘mens rea’ in terms of the motive behind the actions were also caused intentionally as well as recklessly, which would certainly lead to Alex suffering from the criminal charge of a common assault that led to Karl suffering from personal injuries and damages.

Criminal Law - Part B

a) Based on the specifications of the case study presented involving Bella and Alex and the accident that led to Karl being hospitalised, Bella could be charged as a secondary party to the homicide following the decisions passed in the matter of “R v Jogee [2016] UKSC 8”. The judgement laid out clear guidelines and principles that could be relied upon to identify the principal to a crime and the secondary party who is imposed with secondary liability. The first area of contention would be to determine the principal and the accessory. Considering the incident involving Bella, Alex and Karl, it would be clear that Alex would be the principal. However, the decision passed in “R v Jogeee” also mentioned that mere foresight would not constitute the necessary requisite to impose secondary liability within an act of homicide. The doctrine of ‘parasitic accessorial liability’ or PAL was long criticised for being overly unfair and essentially suffering from a sense of ambiguity, whereby the associate of the principal would come under the purview of criminal liability due to simply being present with the principal when the crime was being committed and being aware of the possible risks.

One of the most pressing statements within the decision of “R v Jogeee” that would lead to the imposition of secondary liability onto Bella would be the one contained in paragraph 8 of the judgement, where the accessory must encourage or assist the commission of the offence by the principal.[7] While Bella did not actively partake in the commission of the offense, she readily opened her bag and allowed Alex to obtain the steak knife. Furthermore, as Alex began chasing Karl across the road, Bella cheered and encouraged him to engage in the commission of the offence of homicide as discussed above. Naturally, Bella would be liable for assisting Alex in obtaining the steak knife along with encouraging him to pose the imminent threat to Karl, which would in essence translate into a secondary liability.

The aspect of foresight being considered within the purview of conditional intent would also be applicable in the case of Bella, especially after the decision passed in the case of Jogee. Bella, who is essentially the accessory in the crime involving Alex as the principal depicted the presence of conditional intent when the occasion of Alex chasing Karl with the knife arose. Naturally, it would only solidify The Crown Prosecution Service’s claim of imposing secondary liability onto Bella, as it was within the scope of the plan to which Bella provided her assent and intentional support. The prosecution of offences based on secondary liability would also satisfy the Full Code Test as set out in the Code for Crown Prosecutors.[8] The test is fundamentally broken down into two key areas, with the first being the requirement for evidential sufficiency and the second being the consideration of public interest. The aspect of evidential sufficiency would be met by Bella, as she was associated with the principal and was not present in the scene of the crime in an accidental manner. The facts of the case also put forward that the association and presence eventually led to encouragement and assistance, similar to the facts in the matter of “ R v Clarkson and Others (1971) 55 Cr. App. R. 445.” The public interest stage would also be satisfied as required within paragraph 4.12(b) and (c) of the Code, which states that prosecutions are required on the seriousness and the culpability of the offense.[9]

b) Considering the situation of secondary liability prior to the adjudication of “R v Jogee [2016] UKSC 8”, Bella would have prima facie been charged as a secondary to the homicide based on the doctrine of PAL or ‘parasitic accessorial liability’[10]. The most prominent case law that was in effect prior to “R v Jogee” was the matter of “R v Chan Wing-Siu [1985] AC 168”, which highlighted how the foresight amounted to a sufficient amount of intent.[11] The case involving Bella, Alex and Karl presents that Alex takes the steak knife from Bella’s and then goes on to chase Karl with it. While Bella cheers and encourages him at a later stage, the fact that Bella was associated with Alex and obliged to Alex’s instructions to open the bag so that he could obtain the knife would be sufficient to constitute secondary liability.

The Chang Wing-Siu case also established that it was not necessary for the act to be in accordance to the initial plan of action and the crime or the offence could be engaged in beyond the scope of the initial joint venture of the principal and the accessory.[12] Similarly, Bella and Alex were strolling down the street and causing harm or any danger to Karl was not part of their initial joint venture. However, the decision until “R v Jogee” primarily stressed on how the initial joint venture that leads to a subsequent crime was sufficient to convict an individual under secondary liability and justify the conviction under the doctrine of ‘parasitic accessorial liability’.

Bella would have been charged with secondary liability irrespective of her encouraging and cheering on Alex during the later stage when Alex actually advanced ahead toward Karl with the knife, which led to the accident and Karl suffering from injuries. The very fact that Bella allowed Karl to obtain the knife from her bag would be sufficient evidence to constitute secondary liability, especially in terms of how the imminence of the danger or Karl’s apprehension of possible harm or injury would be substantially less had the knife not been present. Furthermore, the facts of the case present that Bella was well aware of the danger that Alex posed to Karl, especially when it is depicted how she cheers him on and encourages him all the while till Karl is hit by a passing car. The specifications would therefore add merit to The Crown Prosecution Service’s claim of imposing Bella with secondary liability in the act of homicide that Alex committed as the principal.

Criminal Law - Part C

The crime of theft and criminal dishonestly was long based on the principles of individual autonomy and subjectivity, with the most prominent method of determining the liability relating to the two fold test established in the matter of “R v Ghosh [1982] QB 1053.” The key areas of consideration within the test predominantly related to the objective dishonesty within the conduct engaged in by the defendant in terms of reasonable honesty, and whether that conduct was engaged in willfully by the defendant to the point where he or she realised that the conduct would be reasonably dishonest. However, the courts of law within the United Kingdom shifted the paradigm and moved on from the two limb Ghost test to a single test of objectivity called the Ivey test. It came to be established in the judgement passed in the matter of “Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67” where the facts known by the defendant were prioritised when applying the test of objectivity for establishing criminal dishonesty was applied. Since the Ivey test came into existence, courts of law within the UK mentioned in several case how it was to become the precedent and how the Ghost test did not represent the law correctly. One of the most prominent cases where the remark stands out is the adjudication of “R v Patterson [2018] 1 Cr App R 28.”

The case of “R v Hinks [1998] EWCA Crim 2105” saw how Hinks, a young mother managed to obtain sums amounting to £60,000 from a 53 year old man named John Dolphin.[13] Upon conviction of theft, Hinks claimed that the sums were given as gifts and were valid in civil law, thus establishing her defence. However, the court upheld her conviction stating how an appropriation would manifest event when the victim provides consent to the appropriation. Furthermore, civil unlawfulness was held as not being a constituent of the offence of theft, which certainly hints at how criminal dishonesty is not anymore based upon the aspect of individual autonomy and subjectivity and more on the specific facts of the case at hand.[14]

The English law relating to the crime of theft and criminal dishonesty has often been touted as being confusing, ambiguous and problematic in terms of the principles it puts forward. The “Theft Act 1968” has brought about some clarity in terms of specific codifications and terminologies.[15] However, a certain degree of inconsistency has been evident in terms of how courts have interpreted appropriation and how precedents have been decided on whether any subjective element has been entailed within the act of theft or criminal dishonesty. It is important to note that subjectivity, especially within the criminal offence of theft or dishonestly, is predominantly aligned with the concept of culpability as opposed to the conduct.[16] Naturally, the argument in this regard has been along the lines of how acts such as appropriation can be subjective as well as factual and all the while stand as causes to specific and explicit effects. The problems of misperception have also been evident in the adjudication of a number of cases, with the Hinks case being one of the most prominent examples.

Another very prominent case law that hints at how the crime of theft is no longer based on the aspect of autonomy of the individual and the degree of subjectivity is the judgement passed in the matter of R v Barton and Booth [2020] EWCA Crim 575.” The facts of the case involve the appellants exploiting vulnerable nursing residents and profiteering in the form of large gifts of money.[17] While it appeared that the victims entered into the transactions willingly, the defendants were charged with offences of both theft as well as the conspiracy to defraud. However, the lack of conviction in the interpretation of the Ivey test to determine the state of the mind of the defendant has been one of the most significant criticisms entailed within the adjudication process of crimes of theft and criminal dishonesty.[18] The court of law when deciding the Barton case essentially adopted obiter comments. The interpretation seems all the more faulty as the counsel appearing before the Supreme Court did not fully argue along the lines ofthe obiter comments.

The decision undertaken within the Barton case as well as the Hinks case fundamentally hints at the lack of establishment of the process of the Ivey test. Detailed analyses and arguments that would otherwise be expected from a question of law that is being heard at the highest court of law within the United Kingdom were certainly missing. Furthermore, the decisions of the cases depict the recognition of the disadvantages of the adoption of dicta without the presence of a complete argumentative analysis.[19] While there are a number of pragmatic concerns regarding how the digression from the binding nature of precedents took place, the justification of the courts responses in terms of deciding the cases have been questioned several times since. The future of criminal dishonesty cases and theft crime disputes are certainly unclear, especially when considering how the adoption of the Ivey test was adopted by the Court of Appeal in a number of cases without referencing to the Supreme Court. Improved levels of clarity and a concise elimination of the ambiguity that is present current both in terms of the statue as well as the precedents is certainly warranted, and would have to be looked into by legal experts, jurists and the courts of law alike over the coming years.

References for Criminal Law

Statutes

'Criminal Justice Act 1988' (Legislation.gov.uk, 2020) <http://www.legislation.gov.uk/ukpga/1988/33/contents> accessed 7 June 2020

'Theft Act 1968' (Legislation.gov.uk, 2020) <http://www.legislation.gov.uk/ukpga/1968/60> accessed 7 June 2020

Case laws

'Chan Wing-Siu V The Queen: PC 21 Jun 1984 - Swarb.Co.Uk' (swarb.co.uk, 2020) <https://swarb.co.uk/chan-wing-siu-v-the-queen-pc-21-jun-1984/> accessed 7 June 2020

'R V Adomako Summary' (Lawteacher.net, 2020) <https://www.lawteacher.net/cases/r-v-adomako.php> accessed 7 June 2020

'R V BARTON & BOOTH [2020] EWCA CRIM 575: THE LAW ON DISHONESTY IN CRIMINAL PROCEEDINGS AND CONSPIRACY TO DEFRAUD - QEB Hollis Whiteman' (QEB Hollis Whiteman, 2020) <https://www.qebholliswhiteman.co.uk/site/library/articles/criminal-articles/criminal-fraud-articles/R-V-BARTON-AND-BOOTH> accessed 7 June 2020

'R V Bateman' (E-lawresources.co.uk, 2020) <http://www.e-lawresources.co.uk/R-v-Bateman.php> accessed 7 June 2020

'R V Clarkson; R V Carroll; R V Dodd' (Lawteacher.net, 2020) <https://www.lawteacher.net/cases/r-v-clarkson-1971.php> accessed 7 June 2020

'R V Hinks' (E-lawresources.co.uk, 2020) <http://www.e-lawresources.co.uk/R-v-Hinks.php> accessed 7 June 2020

'Tuberville V. Savage - Case Brief For Law Students | Casebriefs' (Casebriefs.com, 2020) <https://www.casebriefs.com/blog/law/torts/torts-keyed-to-epstein/intentionally-inflicted-harm-the-prima-facie-case-and-defenses/tuberville-v-savage/> accessed 7 June 2020

Governmental publications

(Supremecourt.uk, 2020) <https://www.supremecourt.uk/cases/docs/uksc-2015-0015-judgment.pdf> accessed 7 June 2020

'Homicide: Murder And Manslaughter | The Crown Prosecution Service' (Cps.gov.uk, 2020) <https://www.cps.gov.uk/legal-guidance/homicide-murder-and-manslaughter> accessed 7 June 2020

'Secondary Liability: Charging Decisions On Principals And Accessories | The Crown Prosecution Service' (Cps.gov.uk, 2020) <https://www.cps.gov.uk/legal-guidance/secondary-liability-charging-decisions-principals-and-accessories> accessed 7 June 2020

'The Code For Crown Prosecutors | The Crown Prosecution Service' (Cps.gov.uk, 2020) <https://www.cps.gov.uk/publication/code-crown-prosecutors> accessed 7 June 2020

Journals

Cammiss S, 'Law As Narrative: Narrative Interpretation And Appropriation As An Element Of Theft' (2018) 40 Statute Law Review

Crosby C, 'Gross Negligence Manslaughter By Omission' (2018) 82 The Journal of Criminal Law

Melissaris E, 'The Concept Of Appropriation And The Offence Of Theft' (2007) 70 Modern Law Review

Stark F, 'THE DEMISE OF “PARASITIC ACCESSORIAL LIABILITY”: SUBSTANTIVE JUDICIAL LAW REFORM, NOT COMMON LAW HOUSEKEEPING' (2016) 75 The Cambridge Law Journal

Websites

Jones J, 'Clarification Of The Test For Dishonesty In Criminal Law: R V David Barton And Rosemary Booth [2020] EWCA Crim 575 – Park Square Barristers' (Park Square Barristers, 2020) <https://www.parksquarebarristers.co.uk/news/clarification-test-dishonesty-criminal-law-r-v-david-barton-rosemary-booth-2020-ewca-crim-575/> accessed 7 June 2020

'Oh Ghosh – Comment On R V Barton And Booth [2020] EWCA Crim 575 By Conall Bailie - 2 Bedford Row' (2 Bedford Row, 2020) <https://www.2bedfordrow.co.uk/oh-ghosh-comment-on-r-v-barton-and-booth-2020-ewca-crim-575-by-conall-bailie/> accessed 7 June 2020

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