Common Professional Examination (CPE) Criminal Law Syllabus

State the actus reus and mens rea of battery.

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

For OAPA 1861 s 47 (ABH), what is the actus reus and what mens rea is required?

Actus reus: an assault or battery occasioning actual bodily harm (any hurt or injury interfering with health/comfort, more than trivial — Miller; includes psychiatric harm and momentary loss of consciousness — T v DPP). Mens rea: only that of the assault/battery; no further mens rea as to the ABH is needed (Savage; Parmenter).

Compare OAPA 1861 s 20 and s 18: actus reus and mens rea of each.

s 20: unlawfully and maliciously wound or inflict GBH; mens rea is intention or recklessness as to some harm (Cunningham/Parmenter). s 18: unlawfully and maliciously wound or cause GBH WITH INTENT to do GBH (or to resist/prevent lawful apprehension); mens rea is specific intent to cause GBH. A 'wound' requires breaking of both layers of skin (JCC v Eisenhower).

State the statutory definition of theft and its five elements (Theft Act 1968 s 1).

Theft is the dishonest appropriation of property belonging to another with the intention permanently to deprive. The five elements (ss 1–6): (1) appropriation (s 3), (2) property (s 4), (3) belonging to another (s 5), (4) dishonesty (s 2), and (5) intention permanently to deprive (s 6).

What is 'appropriation' for theft (Theft Act 1968 s 3), and can it occur with the owner's consent?

Appropriation is any assumption of the rights of an owner (Morris — assuming any one right suffices). Per Gomez, appropriation can occur even where the owner consents to the taking, and per Hinks even where there is a valid gift; consent does not negate appropriation.

How is dishonesty determined for theft, including the s 2 negative situations and the current test?

Theft Act 1968 s 2 lists situations that are NOT dishonest: belief in a legal right (s 2(1)(a)), belief the owner would consent (s 2(1)(b)), or belief the owner cannot be found by reasonable steps (s 2(1)(c)). Otherwise dishonesty is tested per Ivey v Genting (approved in Barton & Booth): (1) ascertain the defendant's actual state of knowledge/belief, then (2) ask whether their conduct was dishonest by the objective standards of ordinary decent people.

What does 'intention permanently to deprive' include under Theft Act 1968 s 6?

Beyond an outright intention to keep, s 6 extends to treating the thing as one's own to dispose of regardless of the other's rights, including borrowing for a period and in circumstances equivalent to an outright taking (e.g. returning a thing once its goodness/virtue is exhausted — Lloyd).

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

A person is guilty of robbery if they steal (a complete theft, including all five elements) and, immediately before or at the time of doing so, and in order to do so, use force on any person or put/seek to put any person in fear of being then and there subjected to force. If the underlying theft fails (e.g. no dishonesty), there is no robbery (Robinson).

State the two forms of burglary under Theft Act 1968 s 9(1)(a) and s 9(1)(b).

s 9(1)(a): entering a building (or part) as a trespasser WITH INTENT to steal, inflict GBH, or do unlawful damage. s 9(1)(b): having entered as a trespasser, the defendant then steals/attempts to steal or inflicts/attempts to inflict GBH. The key difference is the timing of the ulterior intent (on entry vs after entry).

What are the elements common to both forms of burglary regarding entry and trespass?

There must be (1) an entry (which need not be 'effective and substantial' — Ryan), (2) of a building or part of a building (including inhabited vehicles/vessels), (3) as a trespasser — the defendant must know or be reckless as to the facts making the entry a trespass (entering in excess of permission counts — Jones & Smith).

Name the three principal fraud offences under the Fraud Act 2006.

(1) Fraud by false representation (s 2); (2) fraud by failing to disclose information where under a legal duty (s 3); and (3) fraud by abuse of position (s 4). All require dishonesty and an intention to make a gain or cause a loss.

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

The defendant (1) dishonestly (2) makes a false representation (express or implied, as to fact or law, including state of mind), (3) knowing it is or might be untrue/misleading, (4) with intent to make a gain for themselves/another or to cause loss to another or expose another to a risk of loss. The offence is complete on making the representation; no gain/loss need actually result, and no victim need be deceived.

State the actus reus and the two forms of mens rea for criminal damage (Criminal Damage Act 1971 s 1(1)).

Actus reus: destroying or damaging property belonging to another (damage includes temporary/remediable impairment of value or usefulness — Hardman; Roe v Kingerlee). Mens rea: intention OR (subjective, R v G) recklessness as to destroying/damaging property belonging to another, without lawful excuse.

What are the two statutory 'lawful excuse' defences to criminal damage (Criminal Damage Act 1971 s 5)?

(1) Honest belief that the owner would have consented had they known the circumstances (s 5(2)(a)); and (2) acting to protect property belonging to oneself or another, believing it was in immediate need of protection and the means adopted were reasonable (s 5(2)(b)). The belief need only be honestly held; it need not be reasonable (s 5(3)).

State the elements of aggravated criminal damage (Criminal Damage Act 1971 s 1(2)).

Destroying or damaging property (which may be the defendant's own) intending by the damage to endanger the life of another, or being reckless as to whether life would thereby be endangered. The danger to life must arise from the damage itself (Steer). The s 5 lawful excuse defences do NOT apply.

What is the test for the capacity defence of insanity (M'Naghten Rules)?

At the time of the act, the defendant was labouring under a defect of reason, from a disease of the mind, such that they did not know the nature and quality of their act, or, if they did, did not know it was legally wrong. The burden is on the defence on the balance of probabilities; a successful plea gives the special verdict 'not guilty by reason of insanity'.

Distinguish insane from non-insane automatism in terms of cause and outcome.

Both involve a total loss of voluntary control. Insane automatism stems from an internal cause/disease of the mind (e.g. epilepsy, diabetes via hyperglycaemia — Hennessy) and yields the insanity special verdict. Non-insane automatism stems from an external cause (e.g. a blow, or hypoglycaemia from insulin — Quick) and results in a complete acquittal.

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

For specific intent offences (e.g. murder, s 18, theft), evidence of voluntary intoxication can negate the required intent (though it may leave liability for a lesser basic intent offence). For basic intent offences (e.g. s 20, s 47, battery, assault, criminal damage), voluntary intoxication is no defence — getting intoxicated is itself the reckless course of conduct supplying the fault.

How does the defence of duress by threats operate, and what are its key elements (Graham/Hasan)?

Duress is a complete defence (except to murder, attempted murder, and some treason). Elements: (1) a threat of death or serious injury to the defendant or another; (2) a reasonable belief in the threat; (3) the threat caused the defendant to act; (4) a sober person of reasonable firmness sharing the defendant's characteristics would have responded the same way; (5) no safe avenue of escape; and (6) the defendant did not voluntarily expose themselves to the risk (e.g. joining a criminal gang).

What is duress of circumstances, and how does it relate to necessity?

Duress of circumstances is a complete defence where objective dangerous circumstances (rather than a person's threat) compel the defendant to commit a crime to avoid death or serious injury (Willer; Conway; Pommell). It mirrors the Graham/Hasan test and is closely related to the limited common law defence of necessity (Re A — conjoined twins).

To which offences is the defence of duress NOT available?

Duress (by threats or circumstances) is not available to murder (as principal or secondary party — Howe), attempted murder (Gotts), or certain forms of treason.

How does the law treat consent as a defence to non-fatal offences, and what is the general limit (R v Brown)?

Consent is generally a defence to assault and battery, but NOT to offences causing ABH or above unless they fall within recognised public-interest exceptions — properly conducted sports, reasonable surgery, tattooing/piercing/personal adornment (Wilson), rough horseplay (Jones), and dangerous exhibitions. Sado-masochistic violence is not a valid exception (Brown).

When does a mistaken or fraudulently-obtained consent remain valid for non-fatal offences?

An honest belief in consent (even if unreasonable) can negate the mens rea of assault/battery (Aitken). Fraud vitiates consent only if it deceives as to the nature/quality of the act or the identity of the defendant (Tabassum; Richardson). Failure to disclose risks (e.g. of infection) may negate consent to the risk of serious harm (Dica; Konzani).

State the elements of a criminal attempt (Criminal Attempts Act 1981 s 1).

A person attempts an offence if, with intent to commit an indictable offence, they do an act which is more than merely preparatory to its commission. Mens rea is intention (the full intent for the substantive offence, including intent to kill for attempted murder — Whybrow).

How do courts determine whether an act is 'more than merely preparatory' for attempt?

It is a question of fact for the jury. The defendant must have moved beyond planning/preparation and embarked on the commission of the offence proper — e.g. 'on the job' (Gullefer; Jones — getting in the car with a loaded gun sufficed; Geddes — being in school toilets with kit was merely preparatory).

Can a person be liable for attempting the impossible under the Criminal Attempts Act 1981?

Yes. Per s 1(2)–(3) and Shivpuri, impossibility is no defence to attempt: a defendant is judged on the facts as they believed them to be. So attempting to handle goods believed to be stolen, or to import drugs that turn out to be harmless, is still an attempt.

State the elements of statutory conspiracy (Criminal Law Act 1977 s 1).

An agreement between two or more persons to pursue a course of conduct which, if carried out as intended, will necessarily amount to or involve the commission of an offence by one or more of them. The mens rea is an intention that the agreement be carried out and the offence committed; the offence is complete on agreement even if nothing is done.

Who cannot form a conspiracy together under Criminal Law Act 1977 s 2?

A person cannot conspire with their spouse/civil partner alone, with a person under the age of criminal responsibility, or with the intended victim of the offence. There must be at least two qualifying parties to the agreement.

What are the three inchoate offences of encouraging or assisting crime under the Serious Crime Act 2007 (ss 44–46)?

(1) s 44 — doing an act capable of encouraging/assisting an offence INTENDING to encourage or assist it; (2) s 45 — doing such an act BELIEVING the offence will be committed and that the act will encourage/assist it; (3) s 46 — doing an act believing one or more of a number of offences will be committed. Liability is inchoate, so it arises whether or not the anticipated offence is actually committed.

What are the four ways a person can be a secondary party (accomplice) under the Accessories and Abettors Act 1861 s 8?

By aiding, abetting, counselling or procuring the commission of an offence. Broadly: aid = help at the scene; abet = encourage at the scene; counsel = encourage/advise before the offence; procure = bring about by endeavour (Attorney-General's Reference (No 1 of 1975) — 'to produce by endeavour'). A secondary party is tried and punished as a principal.

What is the mens rea for secondary participation following R v Jogee [2016]?

The secondary party must (1) intend to assist or encourage the principal's conduct, and (2) do so with knowledge of the essential facts/circumstances and intention that the principal commit the offence with the requisite mens rea. Jogee abolished 'parasitic accessory liability': foresight of the principal's crime is now only evidence of intent, not a separate basis of liability.