University College London

Faculty of Laws

LAWS0007: Criminal Law 2022/23

Tutorial agenda for term 1
This document covers the first four of your nine criminal law tutorials during the year. We
will give you the work to be done for the remaining five tutorials (i.e. the tutorials for Term
2) at the end of this term. Please note that we are trying to do more in tutorials than to
revise the contents of lectures. We are trying to prompt active discussions upon what you
have read and learnt. To this end:

(a) There is ‘essential reading’ for each tutorial which must be read in advance. This is
not a lot, and certainly not ‘enough’ reading, to realise your academic potential –
you must be motivated to do your own outside reading. The essential reading
and attached questions will, however, suffice to enable you to contribute to the
class discussions, which is our immediate concern.

(b) Everyone must contribute in some way to class discussions. We understand that
some groups are big, and some can be very lively, and students have different
levels of comfort with speaking up; but you will have to speak or contribute at
some point. It is in your interest to participate – your tutor is required to write
reports on your participation in tutorials, and these will be accessible to anyone at
UCL who writes a reference for you.

(c) To this end, in advance of each tutorial, nominated students will be required to
make brief (3-5 minute) presentations on certain key cases of importance to the
subject of the tutorial. As a general rule, your presentations should address at
least the following questions:

a. Which court decided the case? How many judges sat on the bench?

b. The cases you will read will invariably be appellate cases. What did the
court(s) below decide?

c. What were the main facts? (Every detail is not equally relevant – focus on
the facts important to the outcome of the case.)

d. What was/were the main legal question(s)?

e. What did the court rule, and why?

 f. If there was a dissenting judgment, who wrote it, what was the ruling, and
why?

Other students are expected to engage with these presentations and ask
clarificatory questions whenever necessary.

Whilst we hope to address all the tutorial questions in each session, this is not always
possible. Much depends upon how active you are in offering answers to our questions in
tutorials – the less time we spend waiting for a response, the more material we can cover!
Your tutor may sometimes decide in advance which the most important questions will be.

Coursework (‘formative assessments’)

It is Faculty policy to offer feedback on two or three pieces of work from each student during
the year. In general, your tutorial leader will be responsible for offering you this feedback. In
relation to technique in answering problem questions and essay questions generally, there is
plenty of guidance on the LAWS0007 Moodle page. Please read it carefully, and bear in
mind any other advice on technique which you have been given in the Laws’ Connections
module, and by your tutors. Answers that are badly structured, or do not directly answer the
question, or filled with ambiguous and imprecise words and phrases will attract lower marks
than you might have expected. Our feedback about your formative work is meant to help
you identify problems early, and remedy them effectively, before you write any summative
work. Please take it in that light – we really do want to see you do well in your summative
assessments, and so we mark your formative work with a view to providing you as much
clear guidance as possible on how to write excellent work.

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 Tutorial One (Weeks 3 and 4): Introduction to the criminal
law
We aim to consolidate our understanding of the introductory lectures, including the limited
meaning of mens rea and the extent to which judges should develop (rather than simply
declare) the criminal law. There are no case presentations required for this tutorial, but you
must complete all the essential reading (including extracts from cases) anyway. In the
tutorial, we will work through how to read cases by looking at two interesting cases.

Essential Reading

R v G and R [2004] 1 AC 1034, [2003] UKHL 50 at paras [1–7], [28-39]

C v DPP [1996] AC 1 (HL) – just the opinion of Lord Lowry and the succinct opinion of Lord
Browne-Wilkinson (both towards the end)
R (on the application of Nicklinson) v Ministry of Justice [2012] EWHC 2381 (Admin) at paras
[28]-[31] and [50]-[87]
A Ashworth, ‘Ignorance of the Criminal Law, and Duties to Avoid it’ (2011) 74 MLR 1

Questions

1. Read the selected passages from R v G and R and consider:

(a) On what grounds were G and R appealing (i.e., what, according to them, had the trial
judge done wrong)?

(b) What is the difference between subjective recklessness and objective recklessness?

(c) What are the reasons given by Lord Bingham for saying that subjectively based fault
is an essential feature of the criminal law? Do you agree with them?

(d) Suppose that, instead of saying that they did not realise that the fire might spread,
the defendants had simply said that they thought they were too young to be
arrested. Would any of these alternatives have made a difference to the outcome?

2. In C v DPP, the House of Lords held that the doli incapax rule should be maintained,
because it should only be up to Parliament to abolish it. Similarly, in Nicklinson, the High
Court thought it should be up to Parliament to provide doctors with a defence to murder
for what would be effectively voluntary euthanasia. Do you agree with these decisions,
and if so, can you distinguish them from other examples encountered so far where the
judiciary has moved to change the criminal law?

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3. There are thousands of criminal offences, many of them badly drafted, and yet every
defendant is expected to know the law (as may apply to his case) from the age of ten.
Why do you think we don’t offer any general defence of mistake of law, say in cases where
one would not expect it to be common knowledge or is not clearly set out?

Does Ashworth make the case for this seem stronger than you would have expected?

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 Tutorial Two (Weeks 5 and 7): Sexual Offences
Essential Reading
R v Kirk [2008] EWCA Crim 434 (at paras [15]-[16], [77]-[97])
Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin) at paras [78]-[90]
R v McNally [2013] EWCA Crim 1051
E Freer, ‘Yes, no, maybe - recent cases on consent and freedom to choose’ (2016) Arch Rev 1

Some useful listening: A recording of a UCL organised conference on deception and

sexual consent: https://www.youtube.com/watch?v=TBR3jlWR69Y&t=2591s

Case presentations
R v B (MA) [2013] EWCA Crim 3
R v Lawrance [2020] EWCA Crim 971

Questions
1. Listen to this song: https://www.youtube.com/watch?v=tuCO7Kq744U

Here are the lyrics:

I really can't stay (But baby, it's cold outside)

I've got to go away (But baby, it's cold outside)
This evening has been (Been hoping that you'd drop in)
So very nice (I'll hold your hands, they're just like ice)
My mother will start to worry (Beautiful, what's your hurry?)
And father will be pacing the floor (Listen to the fireplace roar)
So really I'd better scurry (Beautiful, please don't hurry)
Well maybe just a half a drink more (Put some records on while I pour)
The neighbours might think (But baby, it's bad out there)
Say, what's in this drink? (No cabs to be had out there)
I wish I knew how (Your eyes are like starlight now)
To break this spell (I'll take your hat, your hair looks swell)
I ought to say, no, no, no sir (Mind if I move in closer?)
At least I'm gonna say that I tried (What's the sense of hurtin' my pride?)
I really can't stay (Oh baby don't hold out)
Ah but, it's cold outside
I simply must go (But baby, it's cold outside)

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 The answer is no (But baby, it's cold outside)
Your welcome has been (How lucky that you dropped in)
So nice and warm (Look out the window at that storm)
My sister will be suspicious (Gosh, your lips look delicious)
My brother will be there at the door (Waves upon a tropical shore)
My maiden aunt’s mind is vicious (Gosh, your lips are delicious)
But maybe just a cigarette more (Never such a blizzard before)
I've got to get home (But baby, you'd freeze out there)
Say, lend me a comb (It's up to your knees out there)
You've really been grand (I thrill when you touch my hand)
But don't you see? (How can you do this thing to me?)
There's bound to be talk tomorrow (Think of my lifelong sorrow)
At least there will be plenty implied (If you got pneumonia and died)
I really can't stay (Get over that old out)
Ah but, it's cold outside
Where could you be going when the wind is blowing and it’s cold outside?
Baby, it's cold, cold outside

Assume the woman eventually stays back and engages in sexual activity. Do you think
that the man’s behaviour negated consent for the purposes of the criminal law?
Setting aside the criminal law for the moment, do you the think the woman genuinely
consents when she is persuaded by repeated cajoling? Do you think the man’s
repeated cajoling in the fact of the woman’s reluctance is acceptable behaviour? Do
you think the standards are different today than what they used to be in the 1940s
when this version of the song was recorded? And how long after someone says ‘No’ is
it alright to ask again? (PS: There may not be any single ‘correct’ answer to these
questions, but they are still worth thinking about.)

2. Apollo is a professional footballer and well known locally. He visits a school to give a talk
about a career in sports, and is surrounded by young girls afterwards. He later asks for
sex with one of them, Leto, who is 16 years old. Leto says that she wants Apollo to wear
a condom, but Apollo persuades Leto that she could not get pregnant on her first sexual
encounter, and so she agrees to (and has) sex with Apollo without a condom. The
following day Apollo meets another of the girls, Hera, 16 years old, who agrees to allow
him “to use her in whatever way he wants”. Apollo blindfolds Hera with her consent and
then encourages his friend Perseus to enter the room and have sex with Hera. Perseus

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 does so and Hera continues to agree to the activity in the belief that it is Apollo who is
having sex with her, and knowing nothing of Perseus’s presence. Perseus later says that
Apollo had told him that Hera enjoyed sex with complete strangers and was willing for
him (Perseus) to have sex with her.

Discuss any liability which may arise for non-consensual sexual offences.

3. Freer writes:

If apparent consent is negatived in cases such as [R v Ali], a wide raft of relatively

non-serious “implicit threats” could also potentially vitiate consent… this must be
guarded against - at its core, consent should not be negated because a less-than-
desirable choice has to be made.

With reference to the various cases that she discusses, to what extent do you agree with
Freer’s statement. Should a threat to do something legal (e.g. threatening to report a
crime that V has committed unless V agrees to sex), or an exploitative offer (e.g. offering
to buy a starving V a good meal if V agrees to sex) vitiate consent?

Important Note: Remember, your first formative assignment will be available to you on the
morning of the 17th of November, and you must complete both quizzes by the 24th of
November. You should also attempt to write a complete answer to the problem question in
the second quiz, which you can compare to the model answer which will be available to you
on the 28th of November

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Tutorial Three (Weeks 8 and 9): Acts/Omissions, Causation,
Recklessness + Criminal Damage
Essential Reading
R v Kennedy [2007] UKHL 38
R v Hughes [2013] UKSC 56 at [21-36]
A du Bois-Pedain, ‘Novus Actus and Beyond: Attributing Causal Responsibility in the Criminal
Courts’ (2021) 80(1) Cambridge Law Journal 61
G Williams, ‘The Unresolved Problem of Recklessness’ (1988) 8 Legal Studies 74

Case presentations
R v Broughton [2020] EWCA Crim 1093
R v Parker [1977] 1 WLR 600

Questions
1. What principles of causation can be gleaned from Kennedy and Hughes? Do you think
that Hughes is really a case on the rules of causation?

2. Do you think it necessarily right to suppose that D should not be considered ‘reckless’ to
some consequence if the risk was not in his mind at the time? Identify the offences
potentially committed in the following situations and consider whether D is ‘reckless’:

a) D, angry at being evicted from a club, kicks a stone on the street, which breaks the
headlight of a passing car. She never thought that it might hit or damage anything.

b) D absent-mindedly opens the door of his car after he has parked it and knocks over a
passing cyclist. He usually looks out for such risks.

3. Chen is a university student who has become a Youtube star by posting videos in which
he plays pranks on unsuspecting victims. For his latest video, Chen tours the streets of
north London, in a car driven by his friend Ramos, in order to sneak up behind
unsuspecting pedestrians, to pelt them with water-filled balloons, and to film their
reactions. Chen’s first target is Andrea, a pedestrian, but Chen misses her, and instead
hits cyclist Fiona with the water-filled balloon, causing her to fall off her cycle. It is later
discovered that the fall caused Fiona a broken collarbone. Chen had not considered the
possibility of a balloon hitting a cyclist instead of a pedestrian, and had for that reason
not considered the risk of causing any injury. He nonetheless decides to try again,

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 considering that taking some risks makes his videos more appealing. His next target,
Paul, who had seen Fiona’s accident, notices Chen getting ready to throw the water-
filled balloon at him, and tries to avoid being hit by suddenly ducking to his right.
Unfortunately, in doing so, Paul bumps into 6 year old Tara, who falls and breaks her
arm. In the meantime, Chen had aborted his attempt to throw the balloon at Paul.

Consider whether Chen caused, and whether he was reckless as to causing, the injuries of
Fiona and Tara. If you have already been lectured on the cases of Savage and Parmenter, go
further and consider exactly which offences (s.47 OAPA or s.20 OAPA) may have been
committed.

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Tutorial Four (Weeks 10 and 11): Non-fatal Offences Against the Person

Essential reading
Smith Hogan and Ormerod ch.16.1-16.6 or Simester and Sullivan ch 11.1-11.9 and 11.2.
Ireland and Burstow [1998] AC 147 (HL) – just the opinion of Lord Steyn.
R v Brown [1993] UKHL 19.
R v Dica [2004] 3 WLR 213, [2004] EWCA Crim 1103.
R v BM [2018] EWCA Crim 560, [2019] QB 1.
Domestic Abuse Act 2021, s 71.
Alexandra-Maria Eugenicos, ‘Should we reform the Offences Against the Person Act 1861?’
81(1) Journal of Criminal Law 26.
Jeremy Horder, ‘Rethinking Non-Fatal Offences against the Person’ (1994) 14 OJLS 335.

Further reading

Further reading is provided throughout the lecture handout for offences against the person.

Case Presentations

R v Brown [1993] UKHL 19.

R v Dica [2004] 3 WLR 213, [2004] EWCA Crim 1103.

Questions

1. Section 71 of the Domestic Abuse Act 2021 is a useful provision that brings clarity and
fairness to when consent may be a defence to causing serious harm. Discuss.

2. It is clear the 1861 Act needs to be reformed. It is less clear what that reform ought to
look like. Do you agree with this statement?

3. The offences against the person should be read broadly to allow for all of the following
to constitute ‘bodily harm’: physical harm, psychiatric harm, emotional harm, a sexually
transmitted disease and a non-sexually transmitted disease. Discuss.

Activity - Mixed Martial Arts in the Court of Appeal

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We will run a mock Court of Appeal hearing in which students will play the parts of
appellants, respondents, and judges. This activity is a new way to engage with the current
law and its limits. As you prepare, keep in mind 1. what are the uncertainties / issues in the
current law and 2. how can you use these to inform an argument? We are not looking for
the formality that would be expected in a moot; our focus will be on the substantive law.

Facts

A and B are promising young fighters who have agreed to participate in a new mixed martial
arts competition: Mega fighter. In-keeping with other MMA competitions, striking, choking
and limb locks of various types are within the rules. During their bout, A kicks B on the head.
B is immediately knocked out. As B falls, unconscious, A strikes them again. A then moves to
strike B a third time on the ground before the referee intervenes and declares A the winner.
B suffers a serious concussion, severe bruising, and permanent minor hearing loss in one ear
from the first strike (kick). B also suffers a broken nose and swelling from the latter strike
(punch). A is convicted of a section 18 offence for the kick and a section 47 offence for the
punch.

A is perplexed as to how they can be criminally liable. B consented to the fight. Yes, it was a
brutal kick, but that’s the game. Yes, you may technically not be meant to strike an
unconscious opponent, but it is the norm to follow up strikes unless and until the referee
intervenes. In the Court of Appeal, A seeks to argue they cannot be liable because B
consented.

Roles

Students will be split into 3 groups playing the roles of 1. lawyers for A submitting factual
consent is relevant; 2. lawyers for the CPS submitting factual consent is not relevant; and 3
the judges asking questions during and after submissions.

Structure

Students will not know their assigned role prior to class, so should be prepared to undertake
any role. In class, students will have five minutes to prepare in their group. It is thus
essential that you have thought through the issues in advance. Each side will then have up to
5 mins to present. And the judges will have a minute each to give their judgment. (There’s
nothing like swift justice)!

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