Mimi Jaafar Criminal Law Mock

BP0026232
QUESTION 1

Executive summary: Introducing legislation n which creates a criminal offence to not

intervene another in need of assisting.

Omission:

- The general rule is R v W M Smith

- Duty to Act
- Reforms
Introduction to criminal liability for not intervening to help another:

Current position:

1. The Ministry of Justice (MoJ) has now considered to create a new law regarding
criminal liability of not helping another in need. This law will punished people who
refuses to intervene to help others in need of assisting, in other words a new duty to
rescue.
2. The current law on this is under Omissions, where there are a few elements set outs
to show the consequence of a duty to care to other citizens.
3. Examples of omissions sets out as below:

 Duty Arising from a contract: This occurs when a person fails to perform a contractual
obligation and that endangers life.
 Duty Arising from statute: There are Acts of Parliament that make it an offence to fail to
act in defines circumstance. For example, under s.1(1) Children's and young persons Act
1933, the HOL ruled that it is an offence to not being able to provide a child with
necessary medical care required.
 Voluntary assumption to duty: If someone voluntarily takes responsibility for a person
then he/she also assumes to act in the best interest of that person. Stone and Dobinson
 Duty arising from the dangerous prior conduct: If someone accidentally commits an act
that causes harm, it is an offence when they realise that danger has been created and
they fail to avert that danger. In R V Miller the defendant was convicted when they
accidentally start a fire and became aware of that fire and chose to do nothing.
 Public Duty: A person in a public maybe under a duty to care for other such as in
Dytham.

4.The current position of law makes it almost possible to create a legal offence through
omissions.
5.The MoJ believes that by creating this legislation

Potential Future Legislation

ADVANTAGES DISADVANTAGES
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BP0026232

It promotes equality It burdens people

It promotes social responsibility It makes people criticizes the law

It demotes freedom
It helps promoting a better society

Ashworth’s points:

 It is important that we promote social responsibility

 He said it is ridiculous how society neglects one another when one small help could
make a great change to someone’s life
 By promoting this law, he feels that we pay more attention towards liberty and
would respect one another better
Glanville’s point:

 Two remarks on this. Ashworth says that there is no moral difference

between (i) a positive act and (ii) an omission when a duty is
established. But even if this is so, he has already conceded a difference
between the two when he says that an omission is culpable only when
there is duty to act. The duty requirement sometimes involves
considerations that are irrelevant to crimes of commission. Of course,
every crime is a breach of legal duty not to commit the crime, but this is
part of the meaning of the word “crime.” The point is that no requirement
of a particular duty not to act (over and above the specification of the
crime) applies to wrongs of commission.
 In justifying the conventional view I have made no reference to the
philosophy of individualism or to the autonomy principle, both of which
Ashworth (erroneously I think) regards as the foundation of the
conventional view. How far the State should provide financial succour
and social services for those in need has nothing to do with the question
whether individuals should be criminally punishable for not providing
others with these advantages. To bring these considerations based on
general social policy into the discussion simply muddies the waters. The
same remark applies to Ashworth's support for legislation requiring the
wearing of seat-belts, support which is now platitudinous, as well as
being
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BP0026232

Conclusion:

- The MoJ should reconsider this legislation as it would not change how society thinks
or acts
- This legislation might even arose a strike between society as Glanville points out, the
question of individuality and omission is two different points

Question 2:

Advise Chad as to his criminal liability for non-fatal offense against the person, if any. 250
words:

Battery is defined under s.39 of the Criminal Justice Act 1988 as the application of unlawful
force on another either intentionally or recklessly (Colins v Wilcocks). The actus reus of this
offence requires the defendant to apply force on another. The force needed for this offence
need not prove harm or pain, a mere touch may suffice (Thomas 1985). The application of
force need not be aggressive ( Faulkner v Talbot). The force need not be applied directly
(Haystead v DPP). In relation to the scenario, it could be said that Chad has satisfied the
elements of the actus reus by just patting his back as said in Thomas, a mere touch is
enough.

The mens rea of this offence requires the defendant to have the intention or was reckless as
with his/her actions (R v Venna).

In relation to this scenario with Lee, it could be said that Chad is not guilty of s.39 Battery as
he has not satisfied the mens rea element of the section. Applying the rules of unjustifiable
risk as set in R v G, it is necessary to prove that the defendant himself was aware of the risk
he was taking yet went ahead to take it regardless, it could be deduced that by patting Lee
hard twice, Chad was not aware that he was hurting Lee.