CILEx L6 Criminal Law & Procedure Advanced — Questions and Answers
Question 1: What did the Supreme Court decide in R v Jogee [2016] regarding joint enterprise liability?
- The Privy Council in Chan Wing-Siu [1985] had incorrectly introduced 'parasitic accessory liability'; the mental element requires intention to assist or encourage the principal's act, not mere foresight of what might be done (Correct answer)
- Mere foresight that the principal might commit an offence is sufficient for secondary liability
- Joint enterprise was abolished by Jogee
- Secondary liability requires presence at the scene of the crime
Correct answer: The Privy Council in Chan Wing-Siu [1985] had incorrectly introduced 'parasitic accessory liability'; the mental element requires intention to assist or encourage the principal's act, not mere foresight of what might be done
R v Jogee [2016] UKSC 8 overruled Chan Wing-Siu, holding that parasitic accessory liability (secondary liability based on foresight that the principal might commit another offence) was a wrong turn. The correct mental element for secondary liability is intention to assist or encourage the principal's acts.
Question 2: What are the elements of the offence of fraud by abuse of position under s.4 Fraud Act 2006?
- Occupying a position in which one is expected to safeguard the financial interests of another, dishonestly abusing that position with intent to make a gain or cause a loss (Correct answer)
- Any abuse of a position of trust in commercial dealings
- Misrepresenting one's position to gain financial advantage
- Using a professional position to access confidential information for personal gain
Correct answer: Occupying a position in which one is expected to safeguard the financial interests of another, dishonestly abusing that position with intent to make a gain or cause a loss
S.4 Fraud Act 2006 requires: (1) occupation of a position expected to safeguard (or not act against) another's financial interests, (2) dishonest abuse of that position, (3) by act or omission, (4) with intent to make a gain or cause a loss. Examples include a trustee exploiting their position or an employee defrauding their employer.
Question 3: What is the defence of 'consent' in the context of the offence of battery, and what limits exist (R v Brown [1993])?
- Consent is a defence to battery but cannot be a defence where the activity involves the deliberate infliction of actual bodily harm or worse, unless a recognised exception applies (Brown) (Correct answer)
- Consent is always a complete defence to any level of violence
- Consent is irrelevant to the law of battery
- Consent is a defence where both parties are adults and the activity is private
Correct answer: Consent is a defence to battery but cannot be a defence where the activity involves the deliberate infliction of actual bodily harm or worse, unless a recognised exception applies (Brown)
R v Brown [1993] AC 212 (sadomasochism case) held that consent is not a defence to the infliction of actual bodily harm or above for reasons of public policy, unless the activity falls within a recognised exception (e.g., surgery, tattooing, sporting activity, rough horseplay).
Question 4: What are the PACE 1984 Code C requirements before a police interview?
- The suspect must be cautioned, informed of their right to legal advice, and given the opportunity to consult a solicitor before the interview (Correct answer)
- Police must record the interview but no caution is required for voluntary interviewees
- The suspect must be formally charged before any interview takes place
- Police can interview a suspect without restriction in the first 6 hours of detention
Correct answer: The suspect must be cautioned, informed of their right to legal advice, and given the opportunity to consult a solicitor before the interview
Under PACE 1984 Code C, before a police interview, the suspect must: (1) be cautioned (their right to silence and adverse inference warning), (2) be informed of their right to legal advice, (3) be given a reasonable opportunity to consult a solicitor unless one of the limited exceptions for delay applies.
Question 5: What is the threshold for charging a suspect under the Code for Crown Prosecutors?
- The Full Code Test: there is sufficient evidence to provide a realistic prospect of conviction and prosecution is in the public interest (Correct answer)
- There is any evidence that a crime was committed
- The police have arrested the suspect and taken a witness statement
- A judge has issued a warrant for the suspect's arrest
Correct answer: The Full Code Test: there is sufficient evidence to provide a realistic prospect of conviction and prosecution is in the public interest
The Full Code Test in the Code for Crown Prosecutors requires: (1) evidential stage — there is sufficient evidence to provide a realistic prospect of conviction (an objective test — would a properly directed jury be more likely than not to convict?), and (2) public interest stage — prosecution is in the public interest.
Question 6: What is 'abuse of process' in criminal proceedings and what remedy is available?
- Conduct that would bring the administration of justice into disrepute or cause serious prejudice to the defendant; the remedy is a stay of proceedings (Correct answer)
- Any procedural error in criminal proceedings
- Any breach of the defendant's human rights during investigation
- The prosecution's use of evidence obtained in breach of PACE
Correct answer: Conduct that would bring the administration of justice into disrepute or cause serious prejudice to the defendant; the remedy is a stay of proceedings
Abuse of process is a doctrine (R v Horseferry Road Magistrates' Court ex p Bennett [1994]) allowing a court to stay proceedings where it would be an abuse to allow the prosecution to proceed — for example, due to unlawful entrapment, manipulation of extradition, or serious delay causing prejudice.
CILEx L6 Criminal Law & Procedure Advanced
What did the Supreme Court decide in R v Jogee [2016] regarding joint enterprise liability?