criminal law assignment

Furthermore involved in the joint enterprise is Celestine who is also part of conspiracy to steal and will therefore be liable for conspiracy under the Criminal Attempts Act 1981.  Celestine may also be liable for burglary.  To establish liability it must be proved that Celestine made an effective entry into the building as a trespasser with intent to steal.  Celestine has fulfilled each of these requirements which constitute the actus reus and mens rea of burglary leaving Celestine liable for such an offence.  Celestine may also be liable for an offence of trespassing with intent to commit a sexual offence contrary to Section 63 of the Sexual Offences Act 2003 which makes it an offence for anyone to intend to commit a sexual offence whilst on premises whereby he is a trespasser.  It has already been established that Celestine entered a house as a trespasser with intent to commit a sexual offence.  Therefore Celestine may also be liable under Section 1 of the Sexual Offences Act 2003 for rape which makes it an offence for a person to intentionally penetrate another without their consent.  Celestine has had sexual intercourse with Kim and although she offered no resistance this would not constitute consent on her behalf.  This was decided in Olugboja 1982.  Following this Celestine would be liable for rape under Section 1 of the Sexual Offences Act 2003.  Celestine may also be liable as a secondary offender to the murder.  In order to establish liability as a secondary party it must be proved following Bainbridge 1960 and Maxwell 1978 that Celestine had knowledge of the type of crime that was committed and was one within his contemplation.  It is relatively clear Celestine had no knowledge or contemplation of either murder being committed as it was part of the joint enterprise that no weapons or violence would be used and could therefore not be held liable for either murder.

Another person involved is Shay however he is not directly part of the joint enterprise, he has been approached by Alan who demanded the return of ladders.  Due to this Shay may be liable as a secondary offender to a range of offences.  He has provided equipment for Alan to use in a burglary and has knowledge of the type of crime which may be committed.  Therefore following Bainbridge 1960 Shay could be held liable for aiding burglary.  However Shay has simply returned equipment which belongs to Alan and following Lomas 1913 cannot be regarded as a secondary party for this.  However Shay has not returned the equipment of his own accord, he has been approached by Alan who has demanded their return and by returning the equipment has aided burglary.  Following Maxwell 1978 Shay also suspects that Alan needs the equipment for a burglary as he is aware of Alan’s previous convictions.  This constitutes the mens rea for aiding and abetting burglary which Shay would be liable for.  Due to this Shay may also be liable as a secondary party to murder and rape.  By supplying equipment which allowed Titus and Celestine to enter the house then the murders and rape would not have occurred.  Therefore it could be held that supplying the equipment aided murder and rape.  However following Bainbridge 1960 and Maxwell 1978, Shay possessed no knowledge of either crimes and only contemplated burglary.  Due to a lack of mens rea Shay would not be held liable as a secondary party to murder or rape.  This leaves Shay liable as a secondary offender to burglary.  However there may be a defence open to Shay.  Shay was approached by Alan who demanded the return of the ladders and if they weren’t returned straight away he would seriously injure Shay’s daughter.  Shay was threatened with violence unless he returned the ladders and so may be able to plead a defence of duress by threats.  This defence was described by Lord Wilberforce in Northern Ireland v Lynch 1975 as an act completed by the victim who knows that he is doing is wrong, but the addition of duress prevents the law from treating his act as a crime.  If this defence is successful then Shay can escape liability.  It was established in Hudson and Taylor 1971 that the threat must be of death or serious injury.  Here Shay is threatened with serious harm against his daughter.  This would be sufficient as Rose LJ stated in Abdul-Husain and Others 1999 that ‘imminent peril of death or serious injury to the defendant or someone he has responsibility for, would suffice.  The threat is against Shay’s daughter who Shay has responsibility for.  It was also decided in Cole 1994 that duress by threats is only available where a specific crime was nominated.  Although Alan did not nominate a crime to commit he demanded the return of equipment which would aid the burglary.  As Shay complied the defence should be allowed.  To establish whether this defence would be successful, it must be asked whether the defendant acted the way he did because he reasonably believed the threat to be true, and whether a reasonable person with the same characteristics would have responded in the same way.  In these circumstances duress would more than likely be allowed and be successful as Shay’s actions were a direct result of the threats from Alan.  This would therefore allow Shay to escape liability as a secondary party for burglary.

Finally, Shola is part of the joint enterprise and would also be liable under Section 5 of the Criminal Attempts Act 1981 for conspiracy.  Shola may also be liable for several other offences.  Firstly burglary.  Shola stands as a lookout allowing Alan, Titus and Celestine to enter.  This constitutes aiding burglary by allowing people to enter as trespassers with an intention to steal.  However in order for Shola to be liable for this offence it must be proved that he has knowledge of the type of crime and was one within his contemplation.  Shola had knowledge of the burglary and it was his job to stand as a lookout.  Therefore Shola would be found liable for aiding a burglary.  In addition to this Shola may be liable as a secondary party to murder.  As before it could be argued that, Shola standing as a lookout, has aided the murder of Glenn even though he was not present at the time the offence was committed.  Had Shola not stood as a lookout allowing Titus to enter the house he would not have killed Glenn.  It must now be shown that Shola knew of the type of crime that may be committed.  Shola only knew of the burglary, murder was not part of the joint enterprise; however it may be enough that the crime was one in his contemplation.  In this scenario Shola is aware that Titus has a violent temper and may seriously injure anyone who interferes with the plan.  Due to this Shola will have contemplated that serious injury may occur.  As the mens rea for murder can be an intention to cause serious bodily harm, it would be found that Shola has aided the murder of Glenn and would therefore be found liable.  Shola may also be liable for aiding rape.  Shola has acted as a look out allowing Celestine to enter and subsequently rape Kim.  Therefore Shola has aided the rape of Kim.  However as before the principles of Bainbridge 1960 Maxwell 1978 must be proved.  It is clear that Shola had no knowledge and did not contemplate that a sexual offence may occur.  Therefore it cannot fairly be said that Shola would be liable for aiding the rape of Kim.  However Shola may be liable for the murder of Lee.  Murder is a common law crime of specific intent with an actus reus of an unlawful killing of a human being with a mens rea of intention to kill or cause grievous bodily harm.   Here Shola has clearly brought about the actus reus directly by forcefully striking Lee which causes him to hit his head and subsequently dies.  There is no break in the chain of causation and following White 1910, but for Shola striking Lee he would not have died.  Shola also possessed the necessary mens rea to be liable for murder.  Although Shola may not have intended for Lee to die, he clearly intended to cause Lee serious injury, which would constitute the mens rea. This leaves Shola liable for the murder of Lee.  However there may be a defence of provocation open to Shola.  Provocation is a partial defence which can be applied to a charge of murder.  The defence of provocation can be found in Section 3 of the Homicide Act 1957 and was defined in Duffy 1949 as ‘an act or series of acts, done to the accused, which would cause a reasonable man to suddenly and temporarily lose self control’.  If a plea of provocation is successful a charge of murder is reduced to voluntary manslaughter.  The test of provocation has two parts.  Firstly a subjective test requires that the defendant was provoked to lose his self control.  In Doughty 1986 it was held that provocation simply needs to be something said or done.  Shola has been ridiculed about his ears and has been referred to as Dumbo the elephant.  It would be sufficient that these words amounted to provocation.  However these words must have caused Shola to suddenly and temporarily lose self control.  This principle was stated in Duffy 1949.  It is clear that the provoking words were enough for Shola to lose his self control suddenly and temporarily.  This would satisfy the subjective test.  The second part of the test is objective and requires the provocation to make a reasonable man with the same characteristics, react in the same way.  This comes from Camplin 1978.  For a characteristic to be relevant the feature must have a degree of permanence and there must be a connection between the characteristics and the provocation.  Shola has a control characteristic of being depressed and a response characteristic of being ridiculed about his protruding ears.  Therefore it must be asked whether a reasonable depressive man being ridiculed about his protruding ears would have reacted the same as Shola.  Following Smith Morgan 2000 a depressive state was a characteristic that could be taken into account when considering provocation.  Therefore on this basis it is likely that a defence of provocation would be accepted and is likely to be successful.  This means Shola would not be held liable for the murder of Lee.  However provocation is only a partial defence meaning that Shola would still remain liable to a charge of voluntary manslaughter.

Alan, Titus, Celestine, Shay and Shola may be liable for a range of offences at different levels following the principles outlined.  However the jury would be left to decide where liability lies for each offence.

Bibliography

Text Books

• Reed, A & Seago, P. Criminal Law 2nd edition, Sweet & Maxwell, 2002
• Storey, T & Lidbury, A. Criminal Law 3rd edition, Willian Publishing, 2004

Websites

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