Liability in Criminal Damage: Legal Analysis Assignment Sample

Criminal Law Assignment

PART A

Identifying the offences that might have been committed by any of the characters in case scenario, with analysis of any defence that may apply.

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As per the act of basic criminal damage, it is defined under section 1, that a person would be guilty of basic offences of the criminal damage[1], if he has destroyed or damaged any property either recklessly or intentionally, which belongs to someone else, and that too without any legal excuse. In the given scenario, Shane has thrown the beer upon Tommy, but it was not intentionally neither it involved any damage of the property, hence Shane is not liable to the basic criminal damage.

But Arthur becomes responsible for the Shane, as he had to have the element of Mens Rea, with the reference to the case law, R v G, [2003], it was decided by the house of the lords, that recklessness must be subjective but not objective, for the same, to harm Shane. But Tommy was also equally liable for this basic criminal damage because he ordered Arthur to do so as he wanted to take revenge.

Shane has the ability to claim the defence, if with the reference to the case-law of Jaggard V Dickinson [1980], it was held that the mistake could be claimed as a defence, of the honesty could be held an even if he is intoxicated. So, in the given scenario, it is not known that whether Shane was drunk, but it is known that Shane the beer was spilled by Shane to Tommy by mistake.

In the scenario, Tommy is liable for his action which has the element of Mens Rea, as well as Actus Reus, which simply means he was an intention to damage the property of Shane as well as thereby endangering the life of Shane through Arthur. With reference to the case law of, R v Sangha [1988], the offence is not having the requirement that actual lives have been endangered, if the defendant has an intention to being reckless[2] or to endanger the life.

With the reference to case law of, R v Warwick [1995], throwing a brick through the window, and Shane ran away leaving the keys of the car, so the Shame can claim the defence and Arthur will be liable for the criminal damage[3]. Shane also suffered as he was terrified by the act of Arthur, and he has dropped the keys of the cars, and he ran away. He also suffered with severe anxiety for many coming weeks after this incident. With the reference to case law of, R v Morris [1984], Theft is defined as the person is consider the as guilt of theft, if he has appropriated the property, with having a bad intention and that too dishonestly[4] which belongs to some one else and also having the intention of permanently depriving of it, as defined under section 1 of theft act, 1968. Arthur is also liable for theft, because he has grabbed the keys from the road and drove off in the car of Shane.

Furthermore, Tommy pushed Frankie as he was not paying the bill of the pub and was molesting the partner of Frankie called Jo. Frankie was severely injured by the deeds of Tommy has touched the face of Jo, and kissed her on her lips without her consent[5], when she barred the exit of Tommy. Tommy first gave her the threat to move or else he would burn the place. But when Jo refused to move, he swiped his hand across her face. He had lifted her chin towards his face, and kissed her on her lips. As per section 78, of the sexual offences act, [2003], a reasonable person would consider this as a sexual offence when the defendant has kissed the face of the plaintiff, by whatever the nature or the circumstances or the purpose is. Thus, Tommy is also liable for the sexual offence towards Jo under the scenario, with reference to case of W [2005]. In whatever be the circumstances, or by its nature, touching is sexual offence because a reasonable person would consider it so, and there is no requirement of the element or Mens Rea or the presence of bad intention.

Tommy was also considered as he has done the offence of theft, because he left the pub by taking an unopened bottle of the wine from the pub, and thus he is liable to charge against the crime of Theft. With the reference to case law of, R v Morris [1984], Theft is defined as the person is consider the as guilt of theft, if he appropriates the property, with the bad intention and that too dishonestly which belongs to some one else and also having the intention of permanently depriving of it, as defined under section 1 of theft act[6], 1968.

Frankie and Jo both were severe injured and thus it has made tommy also liable of the technical assault. Under section 39, of the criminal justice act, 1988, the term Technical assault is defined as the accused intentionally causes another person to apprehend unlawful personal violence immediately. And in the scenario, Tommy was not paying intentionally and then touched Jo, which was a technical assault done by Tommy towards Frankie.

PART B

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Critically evaluate the impact that the case of R v Bree [2007] EWCA Crim 256 made on how the Sexual Offences Act 2003 deals with the issue of consent.

Chosen case- R v Bree [2007] EWCA Crim 256

Facts of the case-

In this given case Bree is the defendant of the case law, who visited the university of his brother. One evening he went out with his brothers and his friends which also included the complainant that is R. it is further revealed that before returning to the home of the brother of Bree, both R and Bree has consumed some quantities which are considerable of alcohol.

While further R reveals that she is not remembering every instance accurately, has she is having a poor memory, but she recalled that she was puking and both Bree and his brother were helping her to wash the stains from her hairs. Next scene is what she could remember was that she that is R and Bree were having sexual intercourse[7]. R also further makes an explanation that although she had not said no to Bree for having sexual intercourse but she also had not given any consent to do the same to Bree.

But in his defend, b said that he has reasonably made a believe that she was giving her consent, because she herself had undressed, and thus she was appearing willingly, thus she was being conscious to Bree throughout the occurrence of the event.

At the very first instance, Bree has been convicted by the rape's court, under section 1, as prescribed by the act of sexual offences, 2003. It was done on the basis of the grounds that R had not given her consent to have sexual intercourse.

When the point to be noted was taken into consideration, justice crown, initially made a contention, that R was not much abled to give her consent[8] as she was not conscious for the event. However, when there was delivery of the respective evidence was followed at the trial procedure, the approach of the prosecution, that change the submission. It was also revealed that R was having the capacity to give consent. And further it was made clear R was having the capacity to give her consent, but due to the inebriated[9] state, she had not consented to the sexual intercourse with Bree. Bree has successfully appealed its decision and ultimately was not convicted of the rape.

Issue of the case-

The issue was that an appeal was made by the defendant Bree, that court was not able to make clarification, that the jury, that a person is still capable of giving consent, even when heavily as well as voluntarily intoxicated. Rather Bree stated that the court has been implying heavy intoxication will remove to give the capacity of one to give the consent. And this would be contrary to the law on the consent in the act of sexual offences act, 2003.

Evaluation of the impact that the case of R v Bree [2007] EWCA Crim 256 made on how the Sexual Offences Act 2003 deals with the issue of consent.

The court of the appeal considered two main points in the appeal of Bree, are-

1. Under section 74, of the sexual offences act, 2003, consent is defined as where a person is agreed to make the choice, by his or her choice, and he or she is having the capacity and freedom.

When the person is not having the capacity to give consent due to intoxication, but it is also considered that a person could be heavily intoxicated[10] and consumed higher quantity of alcohol voluntarily, and thus still be capable of making decision regarding sexual intercourse.

Further, there must be examination of each of the specified facts in making a decision that whether the consent is deemed to have been given or not. Alongside, there must be knowledge about the mental states of both the complainant that was R and also the defendant who was Bree.

Simply being intoxicating, it would not remove any one's ability to give the consent and thus it was simply meant to be conscious.

In the case, R v Bree [2007] EWCA Crim 256, judge Sir Igor, has made a comment that when any has drunk a lot, and is in fact has made a consent to intercourse[11], that whatever she has been doing, as well as consenting that is equals to, if even after consuming the intoxication, she has not been giving her consent, then definitely the defined intercourse has taken place without her consent.

2. With reference to the case law, R v Olugboja [1982] QB 320, there was no guidance or might be presence of very little guidance, about how the consent of the party must be examined in the relative context of the voluntarily and heavily intoxication, and despite this was being quite crucial delivery of the verdict which was required to be taken into the consideration. It was also not clear that jury still believed that R was not conscious, at the time of making sexual intercourse.

The court of the appeal was a critical case that the earlier court which failed for the establishment alcohol could be responsible for one behaviour, as well as heavy intoxication, and this did not automatically mean that a person could not give his or her consent.

The case law of R v Bree [2007] EWCA Crim 256, has been followed up in a very much subsequent case law, and it had remained valid. Further, this had made an impact on the code for crown prosecutors, and further this was significantly made an updating for emphasizing the findings of the appeal of the court. This code will remind the prosecutors in paying some of the particularity of the attention, for all the relevancy of the facts.

It was considered in some specified cases in assessment of the person's and his capacity to make the consent, in cases of rape which involved intoxication[12] due to the drugs or the alcohol.

This has made some importance which reminds the judge that whether it is necessary for making of the properly instruction, the jury on numbers of the matters is also reiteration.

This decision was also focusing on the criticism from numbers of the legal commentators, and would argue that understanding of the definitions of the consent. It was also further held by some judges of the court that the definition of consent under the act of sexual offences is very weak and failed to provide an adequate level of the protection as well as justice[13] to the victims who suffered sexual offences.

LEGISLATION

R v G, [2003],

Jaggard V Dickinson [1980],

R v Bree [2007] EWCA Crim 256,

R v Olugboja [1982] QB 320,

R v Sangha [1988],

R v Morris [1984],

References

Attard, J., 2020. An analysis into the newly amended sexual offences, with specific regard to rape and defilement of minors.

Challinor, L.E. and Duff, S., 2017. Sexual offending hierarchies, personality attributions, and the clinical implications. Journal of forensic practice.

Ellis, S.B., 2017. Applying affective engagement to change organizational culture: A secondary analysis of sexual assault prevention and reporting curriculum outcomes on US Air Force technical training campuses.

Hendrix, J.A., Strom, K.J., Parish, W.J., Melton, P.A. and Young, A.R., 2020. An examination of sexual assault kit submission efficiencies among a nationally representative sample of law enforcement agencies. Criminal Justice Policy Review, 31(7), pp.1095-1115.

Herman, A., 2018. TIMBUKTU, INTERNATIONAL CRIMINAL LAW AND CULTURAL HERITAGE PROTECTION. Art, Antiquity & Law, 23(1).

Hubbard, K.A. and Griffiths, D.A., 2019. Sexual offence, diagnosis, and activism: A British history of LGBTIQ psychology. American Psychologist, 74(8), p.940.

Hunter, C.M. and Meers, J.G., 2018. The 'affordable alternative to renting': property guardians and legal dimensions of housing precariousness.

Krstini?, D., Bingulac, N. and Dragojlovi?, J., 2017. Criminal and civil liability for environmental damage. ????????? ????????????, 64(3).

Serebrennikova, A.V. and Kharlamov, D.D., 2018. TYPES OF PROPERTY-RELATED CRIMINAL ACTIONS IN THE CRIMINAL LAW OF GERMANY. In Colloquium-journal (No. 6-2, pp. 50-51). ???????????????? ????????????? ????? ??????????= ??????????????? ???????? ????? ?????????.

Sjölin, C. and Edwards, H., 2017. When misconduct in public office is really a sexual offence. The Journal of Criminal Law, 81(4), pp.292-302.

Weare, S., 2020. The Penetrative Offence in Section 4 of the Sexual Offences Act 2003: Offenders, Victims, and Outcomes After Detection. The British Journal of Criminology, 60(4), pp.930-948.

[1] Krstini?, D., Bingulac, N. and Dragojlovi?, J., 'Criminal and civil liability for environmental damage. ????????? ????????????' (2017) 64(3).

[2] Hendrix, J.A., Strom, K.J., Parish, W.J., Melton, P.A. and Young, A.R., 'An examination of sexual assault kit ubmission efficiencies among a nationally representative sample of law enforcement agencies' (2020) 31 Criminal Justice Policy Review

[3] Hunter, C.M. and Meers, J.G 'The affordable alternative to renting': property guardians and legal dimensions of housing precariousness (2018).

[4] Herman, A 'TIMBUKTU, INTERNATIONAL CRIMINAL LAW AND CULTURAL HERITAGE PROTECTION'. (2018) 23 Art, Antiquity & Law

[5] Weare, S., 'The Penetrative Offence in Section 4 of the Sexual Offences Act 2003: Offenders, Victims, and Outcomes After Detection'. (2020). The British Journal of Criminology, 60(4), pp.930-948.

[6] Serebrennikova, A.V. 'In Colloquium-journal' (2018) (No. 6-2, pp. 50-51). ???????????????? ????????????? ????? ??????????= ??????????????? ???????? ????? ?????????.

[7] Ellis, S.B, 'Applying affective engagement to change organizational culture: A secondary analysis of sexual assault prevention and reporting curriculum outcomes on US Air Force technical training campuses (2019).

[8] Challinor, L.E. and Duff, S, 'Sexual offending hierarchies, personality attributions, and the clinical implications' (2017) Journal of forensic practice.

[9] Attard, J 'An analysis into the newly amended sexual offences, with specific regard to rape and defilement of minors' (2020).

[10] Hubbard, K.A. and Griffiths, D.A 'Sexual offence, diagnosis, and activism: A British history of LGBTIQ psychology'. (2019) 78 American Psychologist

[11] Sjölin, C. and Edwards, H., 'When misconduct in public office is really a sexual offence' (2017) 81 The Journal of Criminal Law, 81(4)

[12] Weare, S 'The Penetrative Offence in Section 4 of the Sexual Offences Act 2003: Offenders, Victims, and Outcomes After Detection' (2020) 60 The British Journal of Criminology.

[13] Hubbard, K.A. and Griffiths, D.A 'Sexual offence, diagnosis, and activism: A British history of LGBTIQ psychology'. (2019) 78 American Psychologist