Order Description

Guidance:

• For Q 1, you are clearly going to have to analyse the proposed new crime into its constituent elements (actus reus and mens rea) and explain them, and undertake some research into its mode of trial classification. Some brief explanation of ‘omissions’ liability and of ‘causation’ is also obviously required. You will find it helpful to read your textbook ofr its explanation and examination of ‘possession’ offences (the proposed new offence in Clause 66, will, if enacted, join a long list of already existing ‘possession’ offences and there is, consequently, caselaw on what it means to ‘possess’ something).
• For Q 2, you are obviously required to read your lecture and workshop notes, and your textbook, on the actus reus and mental elements of a crime. You will need to apply the ingredients of the proposed new offence to the facts.

Whatever conclusions you draw, explain them: your tutors want to see the process by which you arrive at your conclusions, not simply the conclusions themselves – i.e. we are more interested in your reasoning in applying the law, than in your concrete conclusions.

Take care with online sources – many are poor: leave well alone if you cannot identify the author (a person or organisation), the date the piece was written and its purpose.

The word limit for the assignment is 2,000.
Footnotes and Bibliography will not be included in the word count but should not be abused. Any excess work which goes over the word limit will not be marked.

– MUST BE OSCOLA REFERENCED
– MUST HAVE A TABLE OF CASES

Assessment Title and Tasks:

Read the following clause contained in the Serious Offences Bill, currently (November, 2014) going through Parliament:

“66 Possession of paedophile manual
(1) It is an offence to be in possession of any item that contains advice or guidance about abusing children sexually.

(2) It is a defence for a person (D) charged with an offence under this section—
(a) to prove that D had a legitimate reason for being in possession of the item;
(b) to prove that—
(i) D had not read, viewed or (as appropriate) listened to the item, and
(ii) D did not know, and had no reason to suspect, that it contained advice or guidance about abusing children sexually; or
(c) to prove that—
(i) the item was sent to D without any request made by D or on D’s behalf, and
(ii) D did not keep it for an unreasonable time.

(3) A person guilty of an offence under this section is liable—
(a) on summary conviction in England and Wales, to imprisonment for a term not exceeding 12 months or to a fine, or to both;

(c) on conviction on indictment, to imprisonment for a term not exceeding 3 years or to a fine, or to both.

(4) Proceedings for an offence under this section may be brought—
(a) in England and Wales, only by or with the consent of the Director of Public Prosecutions;

(8) In this section—
“abusing children sexually” means doing anything that constitutes—
(a) an offence under Part 1 of the Sexual Offences Act 2003, …, against a person under 16, or
(b) an offence under section 1 of the Protection of Children Act 1978, … involving indecent photographs (but not pseudo-photographs), or doing anything outside England and Wales …that would constitute such an offence if done in England and Wales …;
“item” includes anything in which information of any description is recorded;
“prohibited item” means an item within subsection (1).”

Question 1: 60 marks

a. What is the mode of trial for the proposed new offence of possession of a ‘paedophile manual’? (refer to the sub-clause in clause 66 which tells you this).5 marks

b. If enacted, will the new offence be a ‘conduct’ crime or a ‘result’ crime – or a ‘status’ crime? (Briefly explain the reason for your answer). 5 marks

c. (i) What is the actus reus of the proposed new offence?
(ii) Sub-clause (8) states that ‘abusing children sexually’ means doing anything that would amount to a crime under Part 1, Sexual Offences Act, 2003 against a person under 16. Briefly summarise the relevant offences against persons under 16 in Part 1 of that Act.
(iii) If enacted, would it be possible to commit the new possession crime by omission? Is causation required as part of the actus reus? 30 marks

d. Will the new crime, if enacted, require proof of any mens rea? If so, what is it? 20 marks

Question 2: 40 marks

Read the following hypothetical scenario and then answer the question which follows. For the purposes of answering this question, assume that clause 66 has been enacted and is now section 66, Serious Offences Act 2014.

Jack is a university lecturer who is a specialist in criminology (the study of crime as a social phenomenon). His current research concerns sexual offending against children: Jack is interested in trying to identify factors that lead offenders to offend. Jack has already published some articles on this subject in academic criminology journals. Mark, who has just read one of these articles, traces Jack’s e-mail account and then sends Jack, by e-mail attachment, a recording he (Mark) made of himself abusing a child of 10. The recording is explicit and detailed. The ‘subject line’ in the e-mail is, ‘This will interest you’. Jack clicks on the e-mail attachment and sees that its title is ‘Mark: with a child.’ Jack closes the attachment down without listening to or watching it.

He opens the attachment some two weeks later and listens to and watches it. He is disgusted by it but decides to keep it for his work on offending.

The police, in the course of investigating Mark for various sex offences against children, eventually search Jack’s premises and seize his computer. They find the recording sent by Mark and arrest Jack on suspicion of an offence under section 66.

Advise Jack as to whether he is likely to be found liable for this crime, including discussion of any defence(s) which Jack might rely on.

Total: 100 marks

Answer

Question 1(a)

The National Society has come up with the proposed new offense contained in Clause 66 that soon will become a law. The proposed new crime against the possession of the paedophile manual will help in fighting crime against sexual abuse to children under 16 years. The paedophile manual refers to a written material that includes practical guidance on how to commit a sexual offence against a minor. There is a strict prohibition on the production, circulation, or possession of the material under the Protection of Children Act of 1978. Possession of any pseudo-photograph or indecent photograph is also termed as an offence punishable under section 160 of the Criminal Justice Act of 1988, carrying a sentence of five years and ten years correspondingly[1]. Under the sub-clause of clause 66, it is illegal to be in possession of children’s prohibited images and the charge attracts a sentence of a maximum of three-year prison sentence.[2]

The current criminal law does not cover the mere possession of the paedophile manual that either assist or encourage offenders to commit sexual offenses to persons under 18 years. In addition, the clause prohibits an adult communicating a sexual message to a minor or extracting sexual communication from the response of a child with the intent of gaining sexually. The new offense will be created as part of the new Serious Crime Bill extending to England and Wales.[3] The sexual offense, sentence may be an automatic life sentence if the person committing the crime is being convicted of a second very violent offense. The new law will cover law enforcement agencies, individuals working for internet software businesses, and Internet Watch Foundation. Therefore, the amendment will replace the lawful reason defense covering only those detecting or preventing a crime.

(b)

If enacted, the new offence will be classified as a conduct crime. A conduct crime is kind of crime where the actus reus is alarmed with a forbidden behaviour in spite of its consequences. In the union with actus reus, it is essential for an offense to possess a men’s rea that refers is defined as a criminal intent. Therefore, this indicates that a person can only be punished criminally for a committed crime if he or she is held ethically accountable for committing the action or intent. A mens rea or the guilty mind necessitates an individual to purpose of executing an offence. In this case, the individual must be having the mental ability to have the intent as well. For example, if the person possessing the paedophile manual had an explicit purpose of offending a child below the age of 18 years sexually, then she or she must be charged according to the new law. The behaviour thereof leads to a conduct crime, which is as well punishable.

(c)1.

Actus reus consists of different aspects such as a result, conduct, or a condition of associations. In criminal law, actus reus is paired with mens rea for the provision of a sentence under the new Serious Crime Bill. When an individual is said to commit a crime, specific physical acts that comprise the guilty act must be evident.[4] If this element is absent, then it can be concluded that the crime did not take place. The new law will treat actus reus as a crime itself to reduce the incidences of sexual assault to children below sixteen years of age. Section 66 declares that it is an offence to be in the possession of any item, which may be containing guidance or advice about abusing a child sexually. The person charged with an offence in relation to this section must obtain defence to prove that he or she had a legitimate reason for being in the possession of the material.

In addition, actus reus of the new offence is applicable if the person had not read, or viewed the material containing the information[5]. He or she must also not have listened to the item so as not to be charged guilty. The individual must also not have the intention of suspecting or knowing whether the material contained the guidance or advice about the abuse of the child sexually. In addition, the new offence must prove that the item was sent to the suspect without any personal request or on his or her behalf. The person will escape punishment if it is determined that he or she did not keep the material for an unreasonable time.

For example, in the case R. Vs Jakeman (1982) 76 Cr. App. R. 223, the French authorities forwarded the suitcase left mistakenly by an individual importing cannabis to England. The claim that the suitcase did not belong to the suspect did not amount to a defence. Therefore, it was held that mens rea had existed at the commencement of the flight and actus reus completed despite the suspect claiming being innocent. The consequence was that the crime contained the required elements making the person guilty. A person convicted of an offence under the section 66 on summary of conviction in England and Wales is entitled to an imprisonment for a term not exceeding twelve months, a fine, or both. In addition, imprisonment for a term not exceeding three years, fine or both are as well applicable to a person convicted on denunciation.

Sub-clause eight under part 1 of the Sexual Offences Act of 2003 states that abuse of a kid sexually means doing anything that would amount to a crime against any person below the age of sixteen years. A person aged 18 years above is said to commit a crime if he or she intentionally incites another individual to engage in an activity of sexually abusing a kid below 16 years. The person will be found guilty under this section if in any way the action he commits sexually abuses a kid aged 16 and below. For instance, either the possession of the paedophile manual or the actual act of penetrating the kid amounts to the offense. In addition, a person will be committing an offense if he or she intentionally causes a child to watch a third person undertaking a sexual activity or a photograph involving a person undertaking the activity[6]. A person above 18 years should not incite a child to engage in any sexual activity, as this is an offense under section 66 of the new offense.

3.

The possession of the paedophile manuals will not be classified under the new law. Therefore, this calls for the creation of a new offence that deals with any person found in possession of the material. Causation is an essential requirement for establishing if a person has committed a criminal offence.[7] On the contrary, the act of setting up a criminal liability for an individual who committed a certain action involuntary or a person who engaged in an offensive action that did not lead to consequences may be termed as injustice.[8] Therefore, causation is required as part of the actus reus. In the case, R vs. Kennedy (No. 2) [2005] EWCA Crim 685, the conviction could not be established because the requirement for causation could not be determined. Factual causation becomes material when it is determined that the defendant’s conduct directly led to consequences failure to act in such a manner would have barred the consequences from happening.

In criminal law, failure to act, better known as an omission constitute actus reus. The result yields a liability when the law does impose a duty to act and the defendant is found to have breached that obligation. The failure to act must not be justifiable to lead to a criminal offense under the section 66. Therefore, this means that the failure to act must result in relevant injury to an individual. In the case regarding possession of the paedophile manual, the defendant must have used the material to make a child commit sexual fulfilment in a way. In the new offense bill, the legitimate reason for the defense must cover any person involved in the detection of an offense, law enforcer, or any other person with a legitimate reason for possessing the material. In the case of defense, there must be distinctive reasons established to protect offenders in either causation or omission. If the new offense bill were enacted, it would be possible to a commit offense by omission as outlined in the case of R vs. Gibbins and proctor (1918) 13 Cr App Rep 134. The Court of Appeal upheld that the man and woman who had withdrawn food to a girl had the intent to cause harm and As a result guilty.

(d)

Mens rea is described as an intending mind and therefore necessary in determining certain crimes. Hence, this means that for a person D to be found guilty, D must have intended in committing the crime to a person who does not have the consent of the act.[9] As a result, this indicates that there must be an element of actus reus that is accompanied by an intending mind to comprise a crime punishable under the new offence bill. Criminal liability does not necessarily attach to an individual who purely committed an act without mens rea. Guilt of an individual solely relies on whether he or she has actually committed an offence while innocence will rely on whether there was intent to commit the particular crime. Section (8) of clause 66 of the Sexual Offences Act 2003, indicates that abusing children sexually is any act done to a child below the age of 16 years[10].

Section (1) of the Protection of Children Act 1978 clarifies that it is a criminal offence to be in possession of material containing indecent or pseudo-photographs aimed at sexually communicating to children. Such materials indicated in section (1) must include information about any description towards sexual abuse in England and Wales. In the case of R vs. Miller (1982) UKHL 6, the defendant had created a dangerous situation by acting mens rea. If the new crime is to be enacted, a proof of mens rea must be present to constitute a crime. Hence, this means that any individual in the possession of paedophile manuals must have the intent of committing a sexual offense to a child. The Director of Public Prosecutions is entitled to determine whether a person is liable for a criminal offense through mens rea.

Question 2

The category of the case lies in “exposure without raising harm or responsibility factors present.”[11] As a result, there must be principal factual elements to constitute an offense under the enacted section 66 of the Serious Offenses Act 2014.[12] A person is found guilty if there was a clear intent of committing the offense under the new enactment. Jack  did not intend to commit any offense and only carried out research related to the offense. If he were to be charged guilty, he should have previously committed the action or used threats to commit the crime. Possession of materials such as the paedophile manual and the recording made by Mark does not constitute a criminal offense under the new law. Although Mark had sent the recording purposely to provoke Jack, it should be noted that Jack had no ill intention. In this case, Mark was liable to imprisonment of the 3-year sentence described in the Act.

In the case of more than one cause in a complicated circumstance, it would be advisable to prove legal causation to avoid wrong judgement. In this case, possession of the paedophile manuals will only be punishable if the material causes a child to engage in a sexual act. Hence, this means that for a Jack to be found guilty, he must have intended in committing the crime to a person who does not have the consent of the act. As a result, this indicates that there must be an element of actus reus that is accompanied by an intending mind to comprise a crime punishable under the new offence bill. Criminal liability does not necessarily attach to an individual who purely committed an act without mens rea.[13] Jack should not be held liable for possessing the files because there is no proof that he had the intentions of hiding information regarding the offence.

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