CILEX Professional Qualification (CPQ) Foundation Stage: Criminal Law Syllabus

State the four elements of unlawful act (constructive) manslaughter.

(1) The defendant committed an unlawful act (a criminal act, not an omission), (2) which was objectively dangerous (a sober and reasonable person would recognise a risk of some harm — R v Church), (3) which caused the victim's death, and (4) the defendant had the mens rea for the unlawful act (no need to foresee death or harm).

State the elements of gross negligence manslaughter from R v Adomako.

(1) A duty of care owed by the defendant to the victim, (2) breach of that duty, (3) which caused the death, (4) a serious and obvious risk of death at the time of breach (R v Rose), and (5) the breach was so bad as to be 'gross' — to amount to a crime in the jury's view.

List the five principal non-fatal offences against the person in ascending order of seriousness, with their source.

(1) Assault (common law), (2) Battery (common law), (3) Assault occasioning actual bodily harm — s.47 Offences Against the Person Act 1861, (4) Malicious wounding/inflicting GBH — s.20 OAPA 1861, (5) Wounding/causing GBH with intent — s.18 OAPA 1861.

State the actus reus and mens rea of a common law assault (technical/psychic assault).

Actus reus: causing the victim to apprehend immediate unlawful personal violence. Mens rea: intention or (Cunningham) recklessness as to causing such apprehension. No physical contact is required.

State the actus reus and mens rea of battery.

Actus reus: the infliction of unlawful force on another person (any unlawful touching). Mens rea: intention or recklessness as to the infliction of unlawful force.

What is the actus reus and mens rea of assault occasioning actual bodily harm (s.47 OAPA 1861)?

Actus reus: an assault or battery that occasions (causes) actual bodily harm — harm that is more than trivial/transient (R v Miller; includes identifiable psychiatric injury). Mens rea: the mens rea for the assault or battery only — no need to foresee the ABH (R v Savage).

Compare the mens rea required for s.20 and s.18 OAPA 1861.

s.20 (malicious wounding/inflicting GBH): intention or recklessness as to causing some harm (need not foresee serious harm — R v Mowatt). s.18 (wounding/causing GBH with intent): specific intent — intention to cause GBH (recklessness as to GBH is insufficient). s.18 is therefore an offence of specific intent and carries life imprisonment.

What is the legal definition of a 'wound' for the purposes of ss.18 and 20 OAPA 1861?

A break in the continuity of the whole skin — both the dermis and epidermis must be broken (JCC v Eisenhower). A mere internal rupturing of blood vessels or bruising is not a wound.

State the statutory definition of theft under s.1 Theft Act 1968.

A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it. Maximum sentence: 7 years.

List the five elements of theft and identify which are actus reus and which are mens rea.

Actus reus: (1) appropriation (s.3), (2) property (s.4), (3) belonging to another (s.5). Mens rea: (4) dishonesty (s.2) and (5) intention to permanently deprive (s.6).

How is 'appropriation' defined under s.3 Theft Act 1968, and can it occur with the owner's consent?

Appropriation is any assumption of the rights of an owner (s.3(1)). A single right is enough. It can occur even where the owner consents to the taking (R v Gomez) and even after receipt of an indefeasible gift (R v Hinks).

Under s.4 Theft Act 1968, what cannot generally be stolen (the exclusions for land, wild plants and wild creatures)?

Land cannot generally be stolen (with exceptions e.g. a trustee, or severing fixtures). Wild plants/fungi/flowers/foliage cannot be stolen unless picked for a commercial purpose; wild creatures cannot be stolen unless tamed, kept in captivity or reduced into possession.

What is the modern (objective) test for dishonesty in theft, established in Ivey v Genting Casinos and confirmed in R v Barton?

(1) Ascertain the defendant's actual (subjective) knowledge or belief as to the facts, then (2) decide whether, given that state of mind, the conduct was dishonest by the (objective) standards of ordinary decent people. The old second limb of R v Ghosh (did the defendant realise others would regard it as dishonest) is no longer applied.

State the three situations under s.2(1) Theft Act 1968 where a defendant is NOT dishonest.

Where the defendant appropriates property believing: (a) he has a legal right to deprive the other of it; (b) he would have the other's consent if the other knew of the circumstances; or (c) the person to whom the property belongs cannot be discovered by taking reasonable steps. A willingness to pay does not itself prevent dishonesty (s.2(2)).

Explain 'intention to permanently deprive' and the s.6 'borrowing' extension.

The defendant must intend the owner never to get the property back. Under s.6, borrowing/lending can amount to the intention if it is for a period and in circumstances equivalent to an outright taking — e.g. returning the property only when all its goodness/virtue is gone (R v Lloyd), or treating it as one's own to dispose of regardless of the owner's rights (R v Velumyl).

State the definition and elements of robbery under s.8 Theft Act 1968.

A person is guilty of robbery if he steals (a completed theft, with all five elements), and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force. Maximum sentence: life imprisonment.

In robbery, what are the key requirements regarding the force used?

The force (or threat of force) must be used (i) on a person, (ii) immediately before or at the time of the theft, and (iii) in order to steal. Even a small amount of force suffices (R v Dawson — nudging), and force applied to property may transmit to the person (R v Clouden).

State the two forms of burglary under s.9 Theft Act 1968.

s.9(1)(a): entering a building (or part) as a trespasser with intent to steal, inflict GBH, or do unlawful damage (the ulterior intent must exist at entry). s.9(1)(b): having entered a building (or part) as a trespasser, stealing/attempting to steal or inflicting/attempting to inflict GBH (intent formed after entry suffices).

For burglary, what must be proved about 'entry' and 'trespasser'?

Entry must be effective (R v Brown) — it need not be substantial. The defendant must be a trespasser: entering without consent/permission or in excess of permission given (R v Jones and Smith), and must know or be reckless as to the facts making him a trespasser.

What is aggravated burglary under s.10 Theft Act 1968?

Committing any burglary while having with one a firearm, imitation firearm, weapon of offence, or explosive ('WIFE': Weapon, Imitation firearm, Firearm, Explosive). Maximum sentence: life imprisonment.

List the three ways of committing fraud under s.1 Fraud Act 2006.

(1) Fraud by false representation (s.2), (2) fraud by failing to disclose information when under a legal duty (s.3), and (3) fraud by abuse of position (s.4). All are conduct offences — no result/gain or loss need actually occur.

State the elements of fraud by false representation under s.2 Fraud Act 2006.

Actus reus: the defendant makes a false representation (untrue or misleading, as to fact or law, including the state of mind of any person; may be express or implied). Mens rea: (i) dishonesty, (ii) knowledge that the representation is or might be untrue/misleading, and (iii) intention to make a gain for himself/another or to cause loss/risk of loss to another. The gain/loss must be in money or property.

Why is fraud under the Fraud Act 2006 described as a 'conduct' offence rather than a 'result' offence?

Liability is complete once the prohibited conduct (e.g. making the false representation) is done with the required mens rea. No actual gain or loss, and no reliance or deception of any victim, needs to result — the offence focuses on the defendant's conduct and intention.

State the basic offence of criminal damage under s.1(1) Criminal Damage Act 1971.

A person who without lawful excuse destroys or damages property belonging to another, intending to destroy/damage it or being reckless as to whether it is destroyed/damaged, is guilty of an offence. Maximum sentence: 10 years.

What two lawful excuses are provided by s.5 Criminal Damage Act 1971, and how is belief assessed?

(a) Belief that the owner had or would have consented; (b) belief that it was done to protect property belonging to oneself or another, where the means were reasonable. Under s.5(3) it is immaterial whether the belief is justified, provided it is honestly held (a subjective test).

What is aggravated criminal damage under s.1(2) Criminal Damage Act 1971, and how does its mens rea differ from the basic offence?

Destroying or damaging property (one's own or another's) intending or being reckless as to the damage AND intending or being reckless as to thereby endangering the life of another. It requires the additional element of intention/recklessness as to endangering life; the s.5 lawful excuses do NOT apply. Maximum sentence: life imprisonment.

Compare the legal effect of insanity and automatism as capacity defences.

Insanity (M'Naghten Rules) is a defence to most crimes resulting in a special verdict of 'not guilty by reason of insanity' (allowing a hospital/supervision order); the defendant bears the burden of proof. Non-insane automatism, caused by an external factor, results in a complete acquittal. The key distinction is the internal cause (insanity/disease of the mind) versus external cause (automatism).

State the M'Naghten Rules test for insanity.

At the time of committing the act, the defendant was labouring under such a defect of reason, from a disease of the mind, that he either (a) did not know the nature and quality of his act, or (b) if he did know it, did not know that what he was doing was wrong (legally wrong). The defendant bears the burden of proof on the balance of probabilities.

How does intoxication affect liability, distinguishing specific and basic intent offences (DPP v Majewski)?

Voluntary intoxication can negate the mens rea of a specific intent offence (e.g. murder, s.18), potentially reducing it to a basic intent fallback (e.g. manslaughter, s.20). It is no defence to a basic intent offence, because becoming voluntarily intoxicated is itself the reckless course of conduct supplying the mens rea. Involuntary intoxication is a defence if it negates mens rea.

State the elements of duress by threats, and what is the 'Graham test'?

(1) A threat of death or serious injury, (2) to the defendant or someone he is responsible for, (3) the defendant reasonably believed he had good cause to fear death/serious injury, (4) a sober person of reasonable firmness sharing the defendant's characteristics would have responded the same way (the two-limb Graham test — subjective belief plus objective reasonable firmness), (5) no evasive action reasonably available, and (6) the defendant did not voluntarily lay himself open to the threat (e.g. by joining a violent gang). Duress is unavailable to murder, attempted murder and some treason (R v Howe).

State the general requirements of self-defence/prevention of crime (justificatory defence).

(1) The use of force must be necessary in the circumstances as the defendant honestly believed them to be (a subjective test — s.76 Criminal Justice and Immigration Act 2008, even if mistaken), and (2) the degree of force used must be reasonable/proportionate in those circumstances (an objective test). If satisfied, it is a complete defence resulting in acquittal.

Distinguish a principal offender from a secondary party (accessory) under s.8 Accessories and Abettors Act 1861.

A principal is the person who directly commits the actus reus of the offence. A secondary party (accessory) is one who aids, abets, counsels or procures the principal to commit it. An accessory is tried and punished as a principal offender, but liability is derivative — it depends on the principal offence being committed.

What are the four conduct elements of secondary (accessorial) liability under s.8 Accessories and Abettors Act 1861?

Aid (help/assist, e.g. providing tools), abet (encourage at the scene), counsel (advise/encourage before the offence), and procure (to produce by endeavour — bring about, e.g. R v Attorney-General's Reference (No 1 of 1975), spiking a drink). The accessory must also have the mens rea: intention to assist/encourage and knowledge of the essential matters of the principal offence.

What is the actus reus and mens rea of a criminal attempt under s.1(1) Criminal Attempts Act 1981?

Actus reus: the defendant does an act which is 'more than merely preparatory' to the commission of the offence (R v Gullefer). Mens rea: an intention to commit the full offence (generally requiring intention even where recklessness suffices for the completed crime, though conditional intent and recklessness as to circumstances may suffice). Impossibility is no defence (s.1(2)).

Define statutory conspiracy under s.1 Criminal Law Act 1977.

An agreement between two or more persons that a course of conduct will be pursued which, if carried out as intended, will necessarily amount to the commission of an offence by one or more of them. The agreement itself is the actus reus; the offence is complete on agreement even if nothing further is done. There must be intention that the agreement be carried out.

What are the three inchoate offences of assisting or encouraging crime under the Serious Crime Act 2007?

s.44: doing an act capable of encouraging/assisting an offence, intending to encourage or assist it. s.45: doing such an act believing the offence will be committed and that the act will encourage/assist it. s.46: doing such an act believing one or more of a number of offences will be committed. These replaced the common law offence of incitement and require no actual commission of the anticipated offence.

Compare the three inchoate offences (attempt, conspiracy, assisting/encouraging) in terms of what conduct triggers liability.

Attempt: a single defendant does an act more than merely preparatory toward the full offence. Conspiracy: two or more defendants agree to pursue a criminal course of conduct (liability on agreement). Assisting/encouraging: a defendant does an act capable of assisting/encouraging another's offence. All three impose liability even though the substantive (full) offence is never completed.