SQE1 Criminal Liability

Criminal Liability · Actus reus: omissions

Ahmed agreed to look after his bedridden elderly aunt, Sabiha, who had no other carer. He moved into her house and for months fed and washed her. He then became resentful, stopped bringing her food and refused to call a doctor although she was plainly weakening. Sabiha died of malnutrition. Ahmed did not intend her to die. The Crown considers a charge of manslaughter. Which statement about Ahmed's liability is most accurate?

1. He cannot be liable because a failure to act is never enough for homicide unless a statute creates a duty to act.
2. He can be liable only if he intended Sabiha to die, because an omission cannot support a manslaughter charge otherwise.
3. He can be liable because, having assumed the care of a dependent relative, he owed her a duty and his omission can supply the actus reus.
4. He can be liable because any person related by blood to a vulnerable adult owes a duty to keep that person alive.
5. He can be liable only if a written contract obliged him to care for Sabiha and he was being paid to do so.

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Answer: C. An omission can be the actus reus of a result crime where the defendant owes a duty to act. Recognised sources include a voluntary assumption of care for a dependent person. In R v Stone and Dobinson, defendants who took in a frail relative and then failed to get help were convicted of manslaughter. Ahmed took on the care of a dependent relative who had no other carer, so he owed her a duty. His failure to feed her or summon a doctor was a breach that caused her death, and a jury could find it gross (R v Adomako). The mistaken view in option 0 is tempting, but the common law recognises duties beyond statute. Contract is only one source of duty, and blood relationship alone is not the test.

R v Stone and Dobinson [1977] QB 354; R v Adomako [1995] 1 AC 171

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Criminal Liability · Causation: thin skull rule

Dana stabbed Eleni in the stomach during a fight. Eleni, a devout Jehovah's Witness, was taken to hospital where doctors said she needed a blood transfusion to survive. Because of her religious beliefs she refused it. She died from blood loss two days later. Dana's lawyer argues that Eleni's refusal of treatment broke the chain of causation. Which statement is most accurate?

1. The chain is broken, because a victim who refuses reasonable medical treatment is always the sole cause of the later death.
2. The chain is broken, because Dana could not have foreseen that Eleni would refuse treatment for religious reasons.
3. The chain is broken, because the refusal was a voluntary act by a free and informed adult who understood the consequences.
4. The chain is not broken unless the court decides that Eleni's beliefs were unreasonable by the standards of ordinary people.
5. The chain is not broken, because the stab wound remained an operating and substantial cause and the defendant takes the victim as found.

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Answer: E. Under the thin skull rule, a defendant takes his victim as he finds her. This covers physical conditions and also the victim's beliefs and temperament. In R v Blaue, the victim was stabbed and, as a Jehovah's Witness, refused a transfusion. The Court of Appeal held that the stab wound was still an operating and substantial cause of death. Dana's unlawful act caused the injury and Eleni's response did not make Dana's contribution insignificant. Option 3 is tempting, but the court does not test the reasonableness of the victim's beliefs. The question is whether the defendant's act remained a significant cause.

R v Blaue [1975] 1 WLR 1411

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Criminal Liability · Causation: medical treatment

Gareth stabbed Kofi in the abdomen. Kofi was rushed to hospital and had emergency surgery. During his recovery a nurse made a minor mistake in his post-operative care, and Kofi developed a complication from which he died two weeks later. Medical experts agree that without the stab wound he would not have needed the treatment. Gareth is charged with murder. Which statement about causation is most accurate?

1. Gareth is not liable, because any negligence in medical treatment breaks the chain of causation.
2. Gareth remains a legal cause, because the wound was still a significant cause and the treatment was not so independent and potent as to make his contribution insignificant.
3. Gareth is not liable, because the death must be the sole and direct result of the stabbing for homicide.
4. Gareth remains a legal cause only if the medical error was a deliberate act rather than a mistake.
5. Gareth is not liable unless a doctor confirms that proper treatment would have meant that Kofi would certainly have died anyway.

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Answer: B. The defendant's act must be a factual and a legal cause of death, though it need not be the only cause. Negligent medical treatment breaks the chain only if it is so independent of the defendant's act, and so potent in causing death, that the original contribution is insignificant (R v Cheshire; R v Jordan for 'palpably wrong' treatment). Where the original wound is still an operating and significant cause, the chain is not broken. Here the wound required treatment, and a minor error in care is an ordinary risk of that treatment. Option 0 is tempting but wrong: not all negligence is enough, only treatment so extraordinary that the original wound is merely the setting.

R v Cheshire [1991] 1 WLR 844; R v Jordan (1956) 40 Cr App R 152

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Criminal Liability · Coincidence of actus reus and mens rea

Lloyd hit Mark hard on the head with a spade, intending to kill him. Believing that Mark was dead, Lloyd rolled the body over a low cliff to make the death look like an accident. Post-mortem evidence showed that Mark had been alive after the blow and died of exposure at the bottom of the cliff. Lloyd is charged with murder. He argues that he did not intend to kill Mark when he rolled him over the cliff. Which statement is most accurate?

1. Lloyd can be convicted only of attempted murder, because the final act was not accompanied by an intention to kill.
2. Lloyd can be convicted only of manslaughter, because the act that caused death was done without the intention to kill.
3. Lloyd cannot be convicted of any homicide offence, because the actus reus and the mens rea did not coincide at one moment.
4. Lloyd can be convicted of murder, because the acts formed one series of events and the mens rea was present at the start.
5. Lloyd can be convicted of murder only if the prosecution proves that Mark's death by exposure was virtually certain.

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Answer: D. The actus reus and mens rea must coincide, but the courts do not require this at a single instant. Where a defendant does a series of acts forming one transaction, it is enough that he had the mens rea at some point during it. In Thabo Meli the defendants struck the victim intending to kill and then threw him over a cliff believing him dead. He died of exposure. They were guilty of murder. Lloyd's blow and the disposal of the body were one series of acts, so murder is correct. Option 1 is tempting, but a lack of intent at the final act does not reduce the offence.

Thabo Meli v R [1954] 1 WLR 228; R v Church [1966] 1 QB 59

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Criminal Liability · Mens rea: intention

Rashid was angry with his neighbours. He poured petrol through their letterbox late at night and set it alight, saying he wanted only to frighten them into moving. He knew that the family was asleep upstairs. A child died in the fire. Rashid says he did not want anyone to die. At his murder trial the judge directs the jury on intention. Which direction is correct?

1. The jury must find intention if death was a probable consequence of Rashid's act, whether or not he realised it.
2. The jury may find intention if death or serious injury was a virtual certainty from his act and he appreciated that this was so.
3. The jury may find intention to kill only if causing death was Rashid's aim or purpose, and nothing less will do.
4. The jury may find intention to kill if Rashid was reckless as to whether death might result from setting the fire.
5. The jury may find intention to kill if an ordinary prudent person would have seen death as a serious risk.

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Answer: B. Intention is normally the defendant's aim or purpose. Where the case calls for it, the jury is directed that it is entitled, but not bound, to find intention if death or serious harm was a virtual certainty (barring a miracle) as a result of the defendant's act, and the defendant appreciated that this was so (R v Woollin). Rashid knew that a family slept upstairs and that petrol at the door would almost certainly kill or seriously injure someone, so the jury may find intention despite his lack of desire for death. Option 2 is tempting but too narrow: aim or purpose is not the only form of intention. Foresight of probability or recklessness is not enough.

R v Woollin [1999] 1 AC 82; R v Matthews and Alleyne [2003] EWCA Crim 192

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Criminal Liability · Mens rea: recklessness

Jenny, an adult, finished a cigarette while walking behind a shop and flicked it into an open skip containing cardboard and rubbish. She did not think about whether it might cause a fire. The skip caught fire and the heat damaged the back wall of the shop. Jenny is charged with criminal damage, which requires intent or recklessness. She says she never thought of any risk. Which statement is most accurate?

1. She is not reckless unless she was aware of a risk of damage and it was unreasonable for her to take that risk.
2. She is reckless, because an ordinary prudent person would have seen the obvious risk of fire from the cigarette.
3. She is reckless, because carelessness about an obvious risk of damage is enough for the offence.
4. She is not reckless, because only an intention to damage property can satisfy the mens rea for the offence.
5. She is reckless, because the offence is one of strict liability once damage results from her act.

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Answer: A. Recklessness in criminal damage is subjective. The defendant is reckless if she is aware of a risk that damage will occur or exist and, in the circumstances known to her, it is unreasonable to take it (R v G). Jenny never considered any risk, so she did not have the necessary awareness, however obvious the risk might have appeared to others. The earlier objective test in Caldwell was overruled in G. Option 1 is tempting because it describes that old test. Carelessness is a matter for civil law or negligence-based offences. Criminal damage is not strict liability and recklessness suffices, so option 3 is also wrong.

R v G [2003] UKHL 50; Criminal Damage Act 1971, s 1(1)

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Criminal Liability · Professional conduct: confidentiality

You act for Marcus, who is charged with common assault. At the end of a meeting, Marcus mentions that two years ago he burgled a house in another town. Nobody was ever arrested. The burglary has nothing to do with the assault charge and the information is not needed for his defence. Marcus asks whether you will tell anyone. What should you do?

1. Report the burglary to the police, because the duty to uphold the rule of law overrides client confidentiality.
2. Stop acting for Marcus, because knowing of an unrelated offence creates an unavoidable conflict for the firm.
3. Warn the court about the burglary at sentencing, because your duty to the court requires full disclosure of the client's record.
4. Keep it confidential, because no rule requires disclosure of a past offence told to you in confidence, and continue to act on the assault.
5. Tell the prosecutor, because information about earlier crimes must be shared to avoid misleading the court.

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Answer: D. A solicitor must keep the affairs of current and former clients confidential unless disclosure is required or permitted by law or the client consents (SRA Code of Conduct for Solicitors, para 6.3). There is no general legal duty to report a past offence, and a private admission to your own lawyer is also covered by legal professional privilege. The burglary is unrelated to the assault, so it creates no conflict and no duty to the court is engaged. You may carry on acting. Option 0 is tempting, but upholding the rule of law (Principle 1) does not authorise breaching confidentiality. Different rules may apply to terrorism, money laundering or ongoing serious harm, but none arise here.

SRA Code of Conduct for Solicitors, para 6.3; SRA Principles 2019, Principle 1

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Criminal Liability · Murder: mens rea

Femi was furious with Victor. He hit Victor repeatedly on the head with a baseball bat, intending to cause him really serious injury but not to kill him. Victor died of a brain haemorrhage. Femi is charged with murder and says he never meant Victor to die. Which statement is most accurate?

1. Femi is guilty only of manslaughter, because murder requires proof that he intended to kill.
2. Femi is guilty of murder only if he foresaw death as a possible result of the blows.
3. Femi is guilty only of manslaughter, because he did not foresee death as virtually certain.
4. Femi is guilty only of causing grievous bodily harm with intent, because death was not intended.
5. Femi is guilty of murder, because intention to cause grievous bodily harm is sufficient mens rea.

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Answer: E. Murder is the unlawful killing of a human being under the King's peace with intent to kill or to cause grievous bodily harm, meaning really serious harm (R v Vickers; R v Cunningham). The prosecution does not need to prove an intention to kill. Femi intended to cause really serious harm by beating Victor's head with a bat, and Victor died as a result. That is murder. Option 0 is tempting because many people think that murder needs an intention to kill. Foresight of death is not an element, and virtual certainty only helps to prove intent in an indirect case. Femi's intention was direct.

R v Vickers [1957] 2 QB 664; R v Cunningham [1982] AC 566

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Criminal Liability · Loss of control

Ben came home early and found a message on his wife Carla's phone showing that she was having an affair with a colleague. He confronted her. She admitted it. Ben says that he lost control and strangled her. There was no threat of violence and no other relevant conduct by Carla. Ben is charged with murder and wishes to rely on loss of control. Which statement is most accurate?

1. Loss of control is available, because the law no longer requires the loss of control to have been sudden.
2. Loss of control is available, because betrayal by a spouse is a thing done of extremely grave character.
3. Loss of control is not available, because sexual infidelity must be disregarded when deciding whether there was a qualifying trigger.
4. Loss of control is not available unless Ben proves on the balance of probabilities that he lost self-control.
5. Loss of control is available, because the old defence of provocation still applies where a spouse is unfaithful.

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Answer: C. Under the Coroners and Justice Act 2009, s 54, loss of control needs a qualifying trigger under s 55. The triggers are a fear of serious violence (s 55(3)) or things said or done of an extremely grave character causing a justifiable sense of being seriously wronged (s 55(4)). Section 55(6)(c) says that sexual infidelity is to be disregarded when deciding whether the second trigger applies. Ben relies on the affair alone, so there is no qualifying trigger and the defence should fail. Option 0 is tempting: sudden loss of control is not required (s 54(2)), but a qualifying trigger is still needed. Provocation was abolished by s 56.

Coroners and Justice Act 2009, ss 54, 55 and 56

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Criminal Liability · Diminished responsibility

Hassan killed a stranger who bumped into him in the street. Hassan has severe depression that was diagnosed two years ago. A defence psychiatrist says that it substantially impaired his ability to exercise self-control and provides an explanation for the killing. A prosecution psychiatrist disagrees. Hassan is charged with murder and pleads diminished responsibility. Which statement about proof is most accurate?

1. The prosecution must disprove diminished responsibility beyond reasonable doubt once the defence adduces some evidence of it.
2. Hassan must prove the defence on the balance of probabilities, and if he succeeds the murder charge is reduced to manslaughter.
3. Hassan must prove the defence beyond reasonable doubt, and if he succeeds he is acquitted of all homicide offences.
4. Hassan only needs to raise the defence, and the jury must accept it where the defence psychiatrist is a qualified expert.
5. The prosecution must prove that Hassan had full mental capacity, and if it cannot then he is not guilty of any offence.

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Answer: B. Diminished responsibility is a partial defence to murder under the Homicide Act 1957, s 2 (as amended by the Coroners and Justice Act 2009, s 52). The defendant must show an abnormality of mental functioning arising from a recognised medical condition, which substantially impaired his ability to understand his conduct, form a rational judgment or exercise self-control, and which provides an explanation for the killing. The burden is on the defendant on the balance of probabilities (s 2(2)). If it succeeds, the defendant is convicted of manslaughter (s 2(3)). Option 0 is tempting because it describes loss of control, where the prosecution carries the burden. The jury need not accept expert evidence and must weigh it.

Homicide Act 1957, s 2 (as amended by Coroners and Justice Act 2009, s 52)

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Criminal Liability · Unlawful act manslaughter

Callum and Dev argued in a pub. Callum punched Dev in the face, meaning to hit him. Dev fell backwards, hit his head on the stone floor and died of a brain injury. Callum did not intend serious harm and never thought that Dev might die or be seriously hurt. He is charged with unlawful act manslaughter. Which statement about the mental element is most accurate?

1. The prosecution must prove that Callum foresaw that Dev might die as a result of the punch.
2. The prosecution must prove that Callum foresaw that Dev might suffer serious harm as a result.
3. The prosecution must prove only the mens rea for the battery and that a sober, reasonable person would have recognised a risk of some harm.
4. The prosecution must prove that the risk of death was obvious to a reasonable person and that Callum's conduct was grossly negligent.
5. The prosecution must prove that Callum intended to cause some harm and that he foresaw the particular injury suffered.

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Answer: C. Unlawful act manslaughter requires an unlawful act (a criminal offence), that is objectively dangerous, and that causes death. The act is dangerous if all sober and reasonable people would recognise that it exposed the victim to the risk of some harm, though not necessarily serious harm (R v Church; R v Newbury and Jones). The only mens rea required is that for the base offence, here battery. The defendant need not foresee harm or death. Callum intended to hit Dev and so had the mens rea of battery. Option 3 is tempting but describes gross negligence manslaughter, which is a different route to manslaughter.

R v Church [1966] 1 QB 59; R v Newbury and Jones [1977] AC 500

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Criminal Liability · Gross negligence manslaughter

A pharmacist, Naomi, dispensed a prescription for a child without checking the dose. The dose was ten times too high. She was busy and distracted by staff problems. The child took the medicine, collapsed and died. Experts say Naomi's failure to check was a clear breach of duty and caused the death. Naomi argues that at the time of the breach it was not obvious that death was a risk, only that serious harm might result. Which statement about the risk is most accurate?

1. It is enough that a reasonable person would have foreseen a risk of some harm to the child.
2. It is enough that Naomi herself was aware of a risk of serious injury and chose to ignore it.
3. It is enough that the breach of duty caused death, because the civil standard of negligence applies.
4. It is enough that a reasonable person would have foreseen a risk of serious injury arising from the breach.
5. It must be shown that a reasonable person would have foreseen a serious and obvious risk of death at the time of the breach.

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Answer: E. Gross negligence manslaughter requires a duty of care, a breach of that duty, causation of death, and negligence so gross that the jury considers it criminal (R v Adomako). The Court of Appeal in R v Rose held that the risk the defendant should have foreseen must be a serious and obvious risk of death, not merely of serious injury or harm. This is an objective test assessed at the time of the breach. If the prosecution cannot prove this, Naomi cannot be convicted of this offence, however negligent she was. Option 3 is tempting, but a risk of serious injury is not enough. Awareness by the defendant is not required.

R v Adomako [1995] 1 AC 171; R v Rose [2017] EWCA Crim 1168

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Criminal Liability · Assault occasioning actual bodily harm

In a crowded bar, Chidi tried to push through a group by shoving a man, Oscar, out of his way. Chidi intended only to push Oscar aside. Oscar lost his balance, fell and broke his wrist. Chidi did not think that Oscar might be injured. Chidi is charged under section 47 of the Offences against the Person Act 1861. Which statement about the mental element is most accurate?

1. The prosecution needs only to prove the mens rea of assault or battery; it need not prove that Chidi foresaw actual bodily harm.
2. The prosecution must prove that Chidi foresaw that some physical harm might result from his act.
3. The prosecution must prove that Chidi intended or foresaw actual bodily harm to Oscar.
4. The prosecution must prove that Chidi was reckless as to whether he caused a broken bone.
5. The prosecution need prove no mens rea at all, because section 47 is a strict liability offence.

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Answer: A. Assault occasioning actual bodily harm is committed where the defendant assaults or batters the victim and the assault or battery causes actual bodily harm. The mens rea is that of the underlying assault or battery, which here is intention or recklessness as to unlawful force. The prosecution does not need to prove foresight of actual bodily harm (R v Savage; DPP v Parmenter). Chidi intentionally applied force without justification, so he had the mens rea for battery. A broken wrist is actual bodily harm. Option 1 is tempting, but foresight of some harm is the test for section 20 (R v Mowatt), not for section 47. Section 47 is not a strict liability offence.

Offences against the Person Act 1861, s 47; R v Savage; DPP v Parmenter [1992] 1 AC 699

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Criminal Liability · Wounding and grievous bodily harm (s 20)

During a fight, Petra punched Ivor several times in the torso. Ivor suffered extensive bruising and internal bleeding but the skin was not broken. He recovered fully within three weeks. Petra is charged under section 20 of the Offences against the Person Act 1861 with maliciously wounding Ivor. Which statement is most accurate?

1. Ivor has been wounded, because internal bleeding is a break in the continuity of the body.
2. Ivor has not been wounded, because a wound requires a break in the continuity of the whole skin, although s 20 might be proved by grievous bodily harm.
3. Ivor has been wounded, because any visible injury caused by a blow counts as a wound.
4. Ivor has not been wounded, because a wound can only be caused by a weapon.
5. Ivor has been wounded, because bruising that lasts several weeks is a wound.

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Answer: B. A wound under the 1861 Act is a break in the continuity of the whole skin (the dermis and epidermis). Internal bleeding or bruising without a break in the skin is not a wound (JCC v Eisenhower). Ivor's skin was not broken, so the charge of wounding fails. Section 20 also covers inflicting grievous bodily harm, which means really serious harm (DPP v Smith; R v Bollom), so a charge in that form might be possible if the injuries were really serious. Option 0 is tempting because internal bleeding sounds like a break in continuity, but the courts require the skin to be broken. A weapon is not needed for a wound.

Offences against the Person Act 1861, s 20; JCC (a minor) v Eisenhower [1984] QB 331; R v Bollom [2003] EWCA Crim 2846

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Criminal Liability · Wounding with intent (s 18)

Jade smashed a bottle in a bar and slashed Max across the face, causing a deep wound. Max needed surgery. Jade is charged under section 18 of the Offences against the Person Act 1861 (wounding with intent to cause grievous bodily harm). At trial the jury is sure that she wounded Max and that she foresaw that he would be hurt, but is not sure that she intended to cause really serious harm. Which statement is most accurate?

1. The jury must acquit Jade of all offences, because section 18 requires proof of intent and no other offence can be considered.
2. The jury may convict of section 18, because recklessness as to serious harm is sufficient for that offence.
3. The jury may convict of section 18, provided the injury was in fact really serious, whatever Jade intended.
4. The jury must be discharged, and Jade must be tried afresh on a new indictment alleging section 20.
5. The jury may convict of the lesser offence under section 20 as an alternative verdict on the section 18 indictment.

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Answer: E. Section 18 is a specific intent offence: the prosecution must prove an intention to cause grievous bodily harm (or to resist arrest). Recklessness is not enough. Under the Criminal Law Act 1967, s 6(3), where the indictment charges an offence and the jury is not satisfied of it, the jury may convict of another offence within the allegation. Section 20 is established as such an alternative to section 18 (R v Mandair). Jade wounded Max and foresaw some harm, which is the mens rea for section 20. Option 1 is tempting because section 18 and section 20 are both wounding offences, but the specific intent marks the difference between them.

Offences against the Person Act 1861, ss 18 and 20; Criminal Law Act 1967, s 6(3); R v Mandair [1995] 1 AC 208

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Criminal Liability · Assault (common assault)

Dylan's former partner, Jessica, ended their relationship. Over a week, Dylan made forty silent phone calls to her home late at night. Jessica knew it was Dylan and she was terrified that he was about to come to her door and attack her. Dylan intended to scare her. He is charged with assault. Which statement is most accurate?

1. Dylan can be guilty of assault if the calls caused Jessica to apprehend immediate unlawful force, and immediate does not mean instant.
2. Dylan cannot be guilty of assault, because words or silence can never amount to an assault.
3. Dylan can be guilty of assault only if he was physically outside her door when he rang.
4. Dylan can be guilty of assault only if there was some physical contact between him and Jessica.
5. Dylan can be guilty of assault only if he intended to cause her actual bodily harm.

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Answer: A. A common assault is committed where the defendant intentionally or recklessly causes the victim to apprehend immediate unlawful force. In R v Ireland the House of Lords held that silent telephone calls can amount to an assault, because the caller's conduct may cause the victim to fear that violence may be inflicted on her in the near future, and immediate does not mean instantaneous. Jessica's fear arose from Dylan's calls, and he intended to frighten her. Option 1 is tempting because many people assume that words cannot be an assault, but silence in context may suffice. Physical contact is battery, not assault. Common assault is charged under the Criminal Justice Act 1988, s 39.

R v Ireland; R v Burstow [1998] AC 147; Criminal Justice Act 1988, s 39

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Criminal Liability · Defences: consent

Sam and Alex are adults in a long relationship. In private, they agreed that Sam would burn Alex's back with a heated metal rod as part of sadomasochistic activity for sexual gratification. Alex consented, enjoyed it, and does not complain. Police found a video. The burns needed medical treatment. Sam is charged with assault occasioning actual bodily harm. Sam relies on Alex's consent. Which statement is most accurate?

1. Consent is a defence, because adults may agree to anything done in private between them.
2. Consent is a defence, because the couple are in a long-term relationship and no one complained.
3. Consent is not a defence, because as a matter of public policy it does not extend to actual bodily harm or worse inflicted in these circumstances.
4. Consent is a defence unless the injury is really serious, so only grievous bodily harm would defeat it.
5. Consent is not a defence only if Sam was reckless as to whether Alex truly consented.

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Answer: C. Consent is not a defence to assaults causing actual bodily harm or more serious injury unless the activity falls within a recognised exception, such as properly conducted sports, surgery, tattooing or reasonable horseplay. In R v Brown the House of Lords held that sadomasochistic injury inflicted for sexual gratification was not within an exception, as a matter of public policy, even though the participants consented in private. Sam inflicted burns needing treatment, so consent is no defence to the section 47 charge. The Domestic Abuse Act 2021, s 71 now confirms that consent to actual bodily harm or worse for sexual gratification is no defence. Option 3 is tempting, but the threshold for the public policy rule is bodily harm that is more than transient or trivial, not only grievous bodily harm.

R v Brown [1994] 1 AC 212; Domestic Abuse Act 2021, s 71; Attorney-General's Reference (No 6 of 1980) [1981] QB 715

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Criminal Liability · Professional conduct: duty to the court

You act for Zane, charged with unlawful wounding after stabbing a man in a fight. In a private meeting Zane tells you that he started the fight, was not threatened, and stabbed the man deliberately. He then says that he wants to plead not guilty and wants you to tell the jury he acted in self-defence because the other man attacked first. What may you properly do?

1. Present self-defence as instructed, because your duty is to follow the client's instructions whatever you believe.
2. Hold the prosecution to its proof, but do not advance a positive case of self-defence that you know to be untrue.
3. Tell the court at the start of the trial that Zane has admitted the offence to you in confidence.
4. Report the admission to the prosecution, then withdraw so that Zane can find new representation.
5. Present self-defence, but only through cross-examination, without calling Zane to give evidence.

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Answer: B. A solicitor must not mislead or attempt to mislead the court (SRA Code of Conduct for Solicitors, para 1.4) and may only make assertions that are properly arguable (para 2.4). A client's admission does not oblige the solicitor to stop acting. You can advise Zane to plead guilty, and if he insists on a trial you may test the prosecution evidence and argue that it does not prove the case. You may not put forward a positive case, such as self-defence, that you know is false. You must also keep the admission confidential (para 6.3). Option 4 is tempting but still advances a false case. If Zane insists on a false defence, you may have to cease acting without disclosing why.

SRA Code of Conduct for Solicitors, paras 1.4 and 2.4; SRA Code of Conduct for Solicitors, para 6.3

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Criminal Liability · Theft: appropriation

Rina, a home carer, spent months befriending Mr Davies, a trusting 74-year-old with full mental capacity. She persuaded him to give her a £5,000 'gift' from his savings so that she could pay off debts, intending to keep it. He handed over the money willingly and understood what he was doing. Rina is charged with theft. She argues that there was no appropriation because Mr Davies consented and the gift was valid in civil law. Which statement is most accurate?

1. There was no appropriation, because an owner's consent to the transfer prevents any appropriation.
2. There was no theft, because ownership passed to Rina under a valid gift, so the money no longer belonged to another.
3. There can be appropriation only if Rina obtained the money by deception, which is not alleged here.
4. There can be appropriation despite his consent, so the question for the jury is whether Rina acted dishonestly.
5. There can be appropriation only if Mr Davies lacked mental capacity when he made the gift.

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Answer: D. Appropriation is the assumption of any of the rights of an owner (Theft Act 1968, s 3(1)). The House of Lords held in R v Gomez and R v Hinks that an appropriation may occur even though the owner consents, and even where the transfer is a valid gift in civil law. The safeguard against over-criminalisation is the requirement of dishonesty, which is judged by the test in Ivey v Genting Casinos. If the jury finds that Rina acted dishonestly and intended to deprive Mr Davies permanently, she is guilty of theft. Option 0 is tempting as it reflects the older view before Gomez. Capacity and deception are not requirements of theft.

Theft Act 1968, ss 1 and 3(1); R v Hinks [2000] UKHL 53; R v Gomez [1993] AC 442

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Criminal Liability · Theft: dishonesty

Les is a self-employed electrician. After finishing a job for a customer, he was paid in full. Les then added £200 to the customer's card payment without telling her, because he honestly believed that his time on the job had been worth more than the agreed price and that the customer 'could afford it'. Les is charged with theft. At trial the judge directs the jury on dishonesty. Which direction is correct?

1. The jury should convict only if Les himself realised that ordinary decent people would regard his conduct as dishonest.
2. The jury should convict if the conduct was wrong in the eyes of the law, whatever Les believed about the facts.
3. The jury should first decide what Les actually believed about the facts, and then whether his conduct was dishonest by ordinary decent standards.
4. The jury should convict only if Les intended to make a personal profit, because dishonesty requires a gain.
5. The judge should decide whether the conduct was dishonest, because dishonesty is a question of law.

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Answer: C. In Ivey v Genting Casinos the Supreme Court restated the test of dishonesty: the fact-finder first ascertains the defendant's actual state of knowledge or belief as to the facts, which need not be reasonable. It then decides whether the conduct was dishonest by the standards of ordinary decent people. The defendant need not appreciate that his conduct was dishonest by those standards. The Court of Appeal confirmed in R v Barton and Booth that this applies in criminal cases. Les's belief about the worth of his work goes to the first stage. Option 0 is tempting because it states the old second limb of R v Ghosh, which is no longer part of the law. Dishonesty is a question of fact for the jury.

Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67; R v Barton and Booth [2020] EWCA Crim 575

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