First Class Criminal Law Problem Question (PQ) Framework

General Guidance
- Arial font size 12, double spacing, aligned text, page numbers, candidate number at
top right-hand corner of each page
- No intro needed
- Deal with issues as they appear
- Have authority for everything
- Paragraph structure:
o Offence (and statute, if necessary)
o Actus reus is xxx
o Mens rea is xxx
o Non-contentious elements e.g. the car is crushed, so there is criminal
damage
o Contentious elements
o Therefore, a well-instructed jury is likely to conclude xxx
- Check for denials of offences on every offence
- Conclusion: summarise positions (liability) of parties involved
- Per rubric, must show ability to distinguish cases on their facts & argue by analogy
- Always use the facts!

Examinable Offences
- Criminal damage: s.1 CDA 1971
- Rape: s.1 SOA 2003
- Assault by Penetration: s.2 SOA 2003
- Sexual Assault: s.3 SOA 2003
- Causing a Person to Engage in Sexual Activity without Consent: s.4 SOA 2003
- Assault
- Battery
- Assault Occasioning Actual Bodily Harm: s.47 OAPA 1861
- Causing Grievous Bodily Harm: s.20 OAPA 1861
- Grievous Bodily Harm with Intent: s.18 OAPA 1861
- Murder
- Unlawful Act Manslaughter
- Gross Negligence Manslaughter
- Theft: s.1 Theft Act 1968
- Accessorial liability: s.8 Accessories & Abettors Act 1861 (AAA)

,Sex Offences


PQ Framework
1. Offence & section e.g. D may be liable for rape under s.1 Sexual Offences Act 2003
2. Describe offence e.g. D rapes V if he intentionally penetrates V’s vagina, anus or
mouth with his penis, V does not consent to the penetration and D does not
reasonably believe that V consents
3. Check if actus reus was fulfilled
a. If no, acquit D
4. Mens rea: did D intentionally commit the act?
a. Use the facts
5. Did V consent?
a. Statutory definition of consent per s.74
i. Specify what V consented to e.g. consent to rape
ii. If there is straightforward evidence that V did not consent (e.g.
physical resistance → no agreement by choice), move to (5)
iii. If V appears to have consented, check (b), (c) and (d)
b. Does s.76 apply? [conclusive presumption as to lack of consent]
i. No deception → go to (c)
ii. If this is proven, convict D (V did not consent + D did not reasonably
believe that V consented)
c. Does s.75 apply? [evidential presumption as to lack of consent]
i. If D cannot rebut this presumption, convict D (V did not consent + D
did not reasonably believe that V consented
ii. If D rebuts this presumption, move to (5) to prove whether D had a
reasonable belief as to V’s consent
iii. If s.75 does not apply, go to (d)
d. Is there consent per s.74?
i. Agreement by choice
ii. Freedom to choose
iii. Capacity to choose
iv. If V consented, acquit D
v. If V did not consent, move to (5)
6. Did D reasonably believe that V consented?
a. Did D honestly believe that V consented?
i. If no, convict D
b. Did D have a reasonable belief in V’s consent?

, i. State s.1(2): “whether a belief is reasonable is to be determined
having regard to all the circumstances, including any steps A has
taken to ascertain whether B consents.”
ii. On what basis did D believe that V consented?
iii. Is this a good basis?
iv. Would it be reasonable to expect safeguards in place? Were there?
v. Would it be reasonable to expect additional confirmation? Was there?


V’s Consent


Per s.74 Sexual Offences Act 2003, V consents if she agrees by choice, and has the
freedom and capacity to make that choice.


s.76 presumption


s.76 creates an irrebuttable presumption that V did not consent to [act] and D did not believe
that V consented to [act]. This presumption applies where D intentionally deceived V as to
the nature and purpose of the relevant act, or that D intentionally induced V to consent to
the relevant act by impersonating someone known personally to V.


Per Jheeta, D’s deception of V must be intentional – where V made a unilateral mistake of
fact, s.76 will not apply.


[apply facts to check if presumption applies → if not, move to s.75]


Statute Proof
s.76(2)(a) Deception as to nature of act Purpose of act
- D deceived V as to the sexual nature 1. What did D want out of the act?
of the act, so V thought that she was 2. What did D lead V to think that D
consenting to another act (e.g. wanted out of the act?
medical procedure): Williams 3. If different, there is a deception as to
purpose of the act (Jheeta)
NOT deception as to nature of act
- D’s deception of V as to D’s use of a Per Bingham, there must be a complete
condom, since V knew that this act deception for there to be deception as to
purpose. If not, s.76 did not apply

, is sexual: Assange v Swedish
Prosecution Authority Potential deceptions as to purpose
- D’s deception of V as to D’s gender: - D’s purpose was to humiliate V while
McNally V thought the act was for D’s sexual
- Non-disclosure as to D’s HIV+ status gratification: Devonald
if V never asked: R v B - D’s purpose was his own sexual
- Where V has stated that she will gratification while V thought it was for
only consent to sexual intercourse if a casting process in a TV series
D withdraws before ejaculating, but involving sexual content: Christopher
after penetration he refuses to Matt. [note: if the casting is for a
withdraw and ejaculates inside her: porn film, a counterargument to
R(F) v DPP raise would be that whether V’s
casting is successful / checking for
sexual chemistry may also be
partially dependent on whether D /
V got sexual gratification from it]
- D’s purpose of touching their breasts
was sexual gratification while V
thought it was for medical purposes
(to check for breast cancer):
Tabassum.
- D’s purpose of masturbating V /
touching V’s genital areas was for
sexual gratification while V thought it
was for medical purposes: Green


NOT deceptions as to purpose
- Partial deceptions (if V thought that
the purpose of the relevant act was
for D’s sexual gratification and that
was actually part of D’s actual
purpose): Bingham
s.76(2)(b) Applies to where D actively impersonated someone, or where V made a mistake and D took
advantage of the situation.
- V must personally know the person D is impersonating