CILEx L6 Advanced Criminal Practice 2 — Questions and Answers
Question 1: What are the elements of the offence of fraud by false representation under s.2 of the Fraud Act 2006?
- Making a false statement and obtaining property as a result
- Dishonestly making a false representation, knowing it is or might be untrue or misleading, with intent to make a gain for oneself or another, or to cause loss to another or expose another to a risk of loss (Correct answer)
- Making any untrue statement to a public official
- Deceiving another person into entering a contract
Correct answer: Dishonestly making a false representation, knowing it is or might be untrue or misleading, with intent to make a gain for oneself or another, or to cause loss to another or expose another to a risk of loss
Section 2 Fraud Act 2006 requires: (1) a false representation (s.2(2) — untrue or misleading as to fact or law, including as to the state of mind of the person making it); (2) dishonesty (applying the Ivey test); (3) knowledge that the representation is or might be untrue or misleading; (4) intent to make a gain or cause a loss. Notably, the offence is complete upon making the representation with the requisite mens rea — no actual gain or loss need occur.
Question 2: In the context of joint enterprise liability, what did the Supreme Court decide in R v Jogee [2016] regarding the mental element required for secondary parties?
- The Supreme Court confirmed that foresight of the possibility of the crime was sufficient for secondary liability
- The Supreme Court held that the requisite mental element for secondary liability is intention to assist or encourage the principal to commit the offence, correcting the previous 'parasitic accessory liability' doctrine based on mere foresight (Correct answer)
- The Supreme Court abolished joint enterprise liability entirely
- The Supreme Court held that secondary parties are strictly liable
Correct answer: The Supreme Court held that the requisite mental element for secondary liability is intention to assist or encourage the principal to commit the offence, correcting the previous 'parasitic accessory liability' doctrine based on mere foresight
In R v Jogee [2016], the Supreme Court held that the previous law (derived from Chan Wing-Siu [1985] and R v Powell and English [1999]) had taken a wrong turn. Mere foresight that the principal might commit the offence was insufficient for secondary liability. The correct test is that the secondary party must intend to assist or encourage the commission of the offence. Foresight is evidence of intent but not a substitute for it.
Question 3: What is the scope of the defence of duress in English criminal law, and to which offence does it NOT apply?
- Duress is a defence to all criminal offences without exception
- Duress is not available as a defence to murder (whether as principal or secondary party) or attempted murder (Correct answer)
- Duress is only available for summary offences
- Duress is not available for theft or fraud
Correct answer: Duress is not available as a defence to murder (whether as principal or secondary party) or attempted murder
The House of Lords in R v Howe [1987] held that duress is not available as a defence to murder, whether the defendant is the principal offender or a secondary party. In R v Gotts [1992], this was extended to attempted murder. The rationale is that the law regards the right to life of the innocent victim as paramount and cannot condone an intentional killing even under extreme pressure.
Question 4: Under the Youth Justice and Criminal Evidence Act 1999, what special measures are available to assist vulnerable and intimidated witnesses in giving evidence?
- Only the use of screens
- A range of measures including screens, live link evidence, video-recorded evidence in chief, intermediaries, communication aids, and the removal of wigs and gowns (Correct answer)
- Only pre-recorded cross-examination
- Vulnerable witnesses are not permitted to give evidence
Correct answer: A range of measures including screens, live link evidence, video-recorded evidence in chief, intermediaries, communication aids, and the removal of wigs and gowns
The YJCEA 1999 (ss.23-30) provides a comprehensive range of special measures: screens (s.23), live link (s.24), evidence given in private (s.25), removal of wigs and gowns (s.26), video-recorded evidence in chief (s.27), video-recorded cross-examination (s.28), intermediaries (s.29), and communication aids (s.30). Eligibility depends on the witness being under 18, having a mental or physical disorder, or being in fear or distress (ss.16-17).
Question 5: What is the legal test for insanity as a defence in criminal law under the M'Naghten Rules?
- The defendant must prove they were suffering from any mental illness at the time of the offence
- The defendant must prove that, at the time of the offence, they were labouring under such a defect of reason from disease of the mind as not to know the nature and quality of their act, or if they did know it, that they did not know it was wrong (Correct answer)
- The defendant must prove they were unable to control their actions due to an irresistible impulse
- The defendant must provide expert evidence that they have a diagnosed mental health condition
Correct answer: The defendant must prove that, at the time of the offence, they were labouring under such a defect of reason from disease of the mind as not to know the nature and quality of their act, or if they did know it, that they did not know it was wrong
The M'Naghten Rules (1843) require the defendant to prove on the balance of probabilities that: (1) they had a defect of reason; (2) caused by a disease of the mind; (3) such that they either did not know the nature and quality of their act, or did not know that what they were doing was wrong (legally wrong, per R v Windle [1952]). 'Disease of the mind' is a legal concept, not a medical one (R v Sullivan [1984]).
Question 6: In relation to confiscation proceedings under the Proceeds of Crime Act 2002, what is the court's approach when determining whether a defendant has a 'criminal lifestyle'?
- A criminal lifestyle is assumed for all convicted defendants
- The court applies statutory assumptions under s.10 if the defendant meets one of the conditions in s.75, such as having been convicted of a specified offence, having a pattern of criminal activity, or the offence being committed over at least six months (Correct answer)
- The court relies solely on the prosecution's assertions about lifestyle
- Criminal lifestyle can only be established through financial investigation reports
Correct answer: The court applies statutory assumptions under s.10 if the defendant meets one of the conditions in s.75, such as having been convicted of a specified offence, having a pattern of criminal activity, or the offence being committed over at least six months
Under s.75 POCA 2002, a defendant has a criminal lifestyle if: (a) they are convicted of a specified offence (listed in Schedule 2); (b) the offence is part of a course of criminal activity (3+ offences with aggregate benefit over £5,000); or (c) the offence was committed over at least 6 months and the benefit exceeds £5,000. If a criminal lifestyle is established, the court applies the assumptions in s.10 regarding the defendant's property and expenditure.
CILEx L6 Advanced Criminal Practice 2
What are the elements of the offence of fraud by false representation under s.2 of the Fraud Act 2006?