Criminal Law Mooting - Moot Proforma

This document is a skeleton argument for a criminal law moot proforma. It discusses the defence of necessity in relation to the offence of murder and the test of foresight of virtual certainty. The argument explores the availability of the defence of necessity outside specific circumstances, the requirements for the defence, and the role of the jury in considering the defendant's reasonable belief. It also examines the interpretation of the test of foresight of virtual certainty and its consistency with previous legal decisions. The document includes relevant case authorities to support the arguments.

CRIMINAL LAW MOOTING - MOOT PROFORMA
IN THE .....
BETWEEN
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Appellant
-And-
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Respondent
SKELETON ARGUMENT
ON BEHALF OF THE LEAD/JUNIOR COUNSEL FOR THE APPELLANT/RESPONDENT
Name:
Student Number:
Moot judge:
First ground of appeal:
Is the defence of necessity available to the offence of murder outside the particular
circumstances that arose in A (Children), and, if so, do the three requirements for the
defence as set out in A (Children) leave room for the jury to take into account the
defendant's reasonable belief, or are they purely objective?
Submission(s)* on the first ground of appeal:
1. A defendant may opt to rely on the defence of necessity when there is an
argument that there should be no conviction in relation to an offence because his
actions were justified and they included more good rather than harm.
2. It is an established fact that the courts do not take in a good way that the accused
can take advantage of the defence under common law. Therefore, unless any
statute gives the defendant any necessity kind of defence, it will not provide any
good to the defendant in relation to pleading. Such a plea would fall on deaf ears
3. The defence of necessity outside the case of – has been constantly been together
with the duress of circumstances. This means that when the defendant has been
allowed to take advantage of the defence of necessity, in reality is the advantage
in relation to the defence of duress of circumstances.
4. In the case of R v Martin (1989), it had been clarified by the court that only in
extreme circumstances does the English law recognize defence of circumstances.
The most common situation is duress when there is pressure in the will of the
accused by violence or threat from another. In addition it can be created through
any objective danger which is presenting a threat to the accused or any other
person1.
1 R. v. MARTIN [1989] 1 All E.R. 652 (CA)

5. It can be further stated that the defence is only available when from an objective
view the accused can be considered to have been acting proportionately or
reasonably for the purpose of avoiding serious injury or threat of death.
6. In case it is assumed that that defence is available to the accused on
consideration of his facts , the issues has to be left before the jury who should be
supported to make a decision based on two issues. The first issue is that whether
the defendant had or may have been forced to act in a manner which he did
because of his reasonable belief of the situation and he had a proper cause to be
afraid of the fact that otherwise it would result in serious injury or death. The
second issue is that if the first issues have been determined positively whether an
abstemious person having similar characteristics of the defendant and reasonable
firmness would have acted in the way which the accused did in the situation. If
both the issues have been answered in a positive way then the jury should acquit
and the defence of necessity stands established.
7. It has been further illustrated through the case of R v Conway (1989) that
necessity can only be a defence, in relation to a situation if the facts can establish
duress of circumstances. Where there were constraints on the defendant to act in
a specific way and he did the act to avoid serious injury or death to another
person2.
8. Brooke LJ observed in In Re A (2001) (separation of conjoined twins) that in
situation of purpose necessity the mind of the actor is not overborne irresistibly
by external pressure. The claim that conduct of the accused was not harmful as
there was a choice to select lesser of the two evils3.
9. In the present case also the defence of necessity would not be applied and needs
to be analyzed in a objective manner. The answer to the question that whether
the defendant had or may have been forced to act in a manner which he did
because of his reasonable belief of the situation and he had a proper cause to be
afraid of the fact that otherwise it would result in serious injury or death is
negative. Here the appellant was not forced to act in a manner which he did
because of his reasonable belief of the situation and he had a proper cause to be
afraid of the fact that otherwise it would result in serious injury or death is
negative In the same way the answer to the question that whether an abstemious
person having similar characteristics of the defendant and reasonable firmness
would have acted in the way which the accused did in the situation is also
negative. No reasonable person would have indulged in the act of killing his
daughter.
10. Further, necessity can only be a defence, in relation to a situation if the facts can
establish duress of circumstances. Where there were constraints on the defendant
to act in a specific way and he did the act to avoid serious injury or death to
another person and there is no way in which the same can be established by the
accused. Therefore the accused in Guilty and this ground for appeal must be
dismissed.
Authorities: (TO A MAXIMUM OF THREE)
(list your Acts (including relevant sections), cases and other authorities here)
1. R v Conway (1989)
2. In Re A (2001) (separation of conjoined twins)
3. R v Martin (1989)
Second ground of appeal:
2 R v Conway (Francis Gerald) [1989] Q.B. 290
3 Re A (conjoined twins) [2001] 2 WLR 480

Is the test of foresight of virtual certainty as interpreted in A (Children) consistent with
the earlier House of Lords decision in R v Woollin [1998] 4 All ER 103, which held that
where a consequence is foreseen as 'virtually certain', the jury may find that the
defendant had the necessary intention?
Submission(s)* on the second ground of appeal:
1. The test of foresight of virtual certainty has been marked as the primary test for
the purpose of determining indirect (oblique) intention by the case of R v Nedrick
(Ransford Delroy) (1986) 8 Cr. App. R. (S.) 1794. It has been stated by Lord Lane
CJ that:
“Where the charge is murder and in the rare cases where the simple direction is not enough,
the Jury should be directed that they are not entitled to infer the necessary intention unless they
feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen
intervention) as a result of the defendant's actions and that the defendant appreciated that such
was the case …The decision is one for the Jury to be reached upon a consideration of all the
evidence.”5
2. Therefore one of the most common interpretation of the tests is a virtual certain
effect of a conduct by a person and the person is aware that the circumstances
are virtually certain.
3. In relation to a charge of murder and in cases where direction cannot be
considered as adequate, the jury has to be supported by the fact that they do not
have the right to determine the necessary intention, other than in the situation
where they have the feeling that serious bodily harm or death is a virtual
certainty not taking into consideration any unforeseen intervention as a
consequence of the defendants action and it was appreciated by the defendant
that it was the case. This means that the words "not entitled to find the necessary
intention" signify that there is no obligation to determine the reqired intention
even in case where death or grievous bodily harm is a virtual certainty providing
some discretion to the jury6.
4. In R v Matthews and Alleyne it had been confirmed by the court that the test of foresight
of virtual certainty is an evidential rather than a substantial rule. Judges have to
provide instructions to the jurors that they can interpret information of the
virtually certain consequences of death as proof of intention7.
5. The interpretation of the test would signify that once a person has knowledge
about the fact that death is inevitable it should be enough for the jury to identify
that the person had intention to indulge into the actions.
6. This means that the appellant had intention in this situation as he had knowledge
about the fact that death is inevitable. Therefore he is guilty and the appeal
should be dismissed.
4 R v Nedrick (Ransford Delroy) (1986) 8 Cr. App. R. (S.) 179. R v Nedrick (Ransford
Delroy) (1986) 8 Cr. App. R. (S.) 179.
5 ([1986] 1 W.L.R. 1025)
6 R v Woollin [1998] 4 All ER 103
7 R v Matthews and Alleyne [2003] Cr App R 30

Authorities: (TO A MAXIMUM OF THREE)
(list your Acts (including relevant sections), cases and other authorities here)
1. R v Nedrick (Ransford Delroy) (1986) 8 Cr. App. R. (S.) 179.
2. R v Matthews and Alleyne
3. R v Woollin [1998] 4 All ER 103