1. Burden and Standards of Proof, and Elements of Liability Flashcards
Where the defendant wishes to rely on an exception within an element of an offence, or when raising some defences, they will have to prove it. What is the standard to which they must prove?
Balance of probabilities
Where is the first hearing for a criminal trial always heard?
In the Magistrates Court, regardless of the severity of the offence
Who does the CPS bring cases to court on behalf of?
The state, the Crown (Rex)
Can charities, private citizens, local authorities and other organisations bring prosecutions?
Yes
What is the purpose of criminal law?
- Punish
- Incapacitate (keep off street)
- Deter
- Rehabilitate
Who does the burden of proving a crime has been committed lie with?
The prosecution
Does the defendant have to prove their innocence?
No, it is up to the prosecution to prove the particulars of the case beyond reasonable doubt
When does the burden of proof reverse to lie with the defendant?
When the defendant wishes to rely on the defences of insanity or diminished responsibility as they need to obtain medical evidence etc OR if the defendant wants to rely on an exception contained within the statue
For the defence of self defence, which party bears the burden?
The defence have an evidential burden rather than a legal burden- must cite enough tangible evidence to make the defence ‘live,’ but that is all
When the burden of proof lies with the defendant, how is it measured?
On the balance of probabilities
If the defence needs to present evidence to raise an issue or defence before the jury (e.g. evidential burden which applies to self defence) who will then have the burden of disproving the issue?
Defendant has evidential burden.
Prosecution has legal burden- would have to disprove that self-defence applies.
What is the standard of proof in a criminal case?
Prosecutor must prove each element of the crime beyond a reasonable doubt
What is the standard of proof in civil cases?
Proving case on ‘the balance of probabilities’- more than 50% chance it happened
When the defence bear the burden of proof, what is the standard of proof?
Same as civil- on the balance of probabilities. Jury must think it is more likely than not that the defence is made out.
What is the actus reus?
The physical elements of a crime
e.g. Murder- causing the death of another human being (except in wars)
What is the mens rea?
Mental element of the crime (what the def was thinking)
Murder: Intention to kill or cause serious harm
What is meant by the requirement for ‘concurrence’ between the mens rea and the actus rea?
For liability to airse, the actus reus and mens rea must occur at the same time
What are strict liability offences?
An offence can be committed when the actus reus is complete, so there is no need to prove mens rea
What is the outcome of a successful complete defence?
Acquittal
What is the outcome of a successful partial defence?
Conviction of a lesser offence
If all elements of the crime are made out and there are no defences, what is the outcome?
What is this known as?
The criminal equation.
Defendant will be convicted of the crime
What are the three elements of actus reus?
- Conduct (acts or omissions)
- Circumstances (facts making defendant liable)
- Result (outcome)
Must all three elements of the actus reus always be satisfied for every type offence?
No
What is meant by the ‘conduct’ element of the actus reus?
Things done or not done by the defendant which makes them liable for the offence
To be liable for the criminal offence of failure to act, what is required?
Defendant:
- Had a duty to act
- Breached the duty by failure to act sufficiently
What are the five situations in which a duty to act will arise?
- Statute, e.g. to stop at scene of accident
- Special relationship, e.g. parent-child, doctor-patient
- Voluntarily assumed duty of care for victim
- Contract, e.g. railway guard
- Defendant created dangerous situation and is aware of having done so
What is meany by the ‘circumstance’ element of the actus reus?
For some offences, certain circumstances must exist for the offence to occur
What is meant by the ‘outcome’ element of the actus reus?
This applies to result crimes which require a particular outcome for an offence to occur
True or false:
Factual and legal causation must both exist to link the defendant’s conduct to the outcome and thus establish that the offence occurred
True
What are the two stages in the test for causation?
- Factual causation (but for test)
- Legal causation (operating and substantial cause)
What does factual causation consider?
Whether the result occurred but for the defendant’s conduct
What does legal causation mean
Legal causation (“operating & substantial” cause)
Substantial = more than minimal
Operating – actually cause the result and is negated by a more substantial intervening act or event
If there is more than one cause, and defendant’s action slightly accelerates the result, is there sufficient factual causation?
Yes.
Compare with legal causation under which the cause must be substantial.
What is the purpose of legal causation?
The prevent factual causation test from being overinclusive, where issues like lack of foreseeability would make conviction unfair
What are the 4 main intervening acts
- Medical negligence
- 3rd party acts
- Natural events
- Acts of victim (Fright and flight cases; Refusing medical treatment; Suicide)
What is the thin skull rule which is somewhat of an exception to the intervening act part of legal causation?
Does it apply to religious viewpoints?
Causation is not negated if the defendant does more damage than expected due to the particular vulnerabilities of the victim, or a victim’s condition worsens because they refuse medical treatment on religious grounds
When will medical treatment break the chain of causation?
When the treatment is so bad that the original injury becomes the background.
Ordinary malpractice doesn’t suffice, only gross malpractice will break the chain.
What is required for intervention of the following parties to break the chain of causation?
- Defendant
- Natural event
- Victim
- Third party
- Defendant: New act
- Natural event: Unforeseeable
- Victim: Voluntary, and unforeseeable, i.e. so daft as to be unforeseeable
- Third party: Free, deliberate, and informed
What is mens rea?
The state of mind that the Def must have at the time of committing the actus reus to be guilty of the offence
What are the two types of intention?
- Direct
- Indirect (oblique)
When will a defendant directly intend an outcome?
When the outcome is the defendant’s aim or purpose
When will a defendant indirectly intend an outcome?
When the outcome is a virtual certainty of the act, and the defendant realises this
What are the only offences indirect intention is available for and why?
Specific intent offences only, not basic intent- where intention is the only type of mens rea available for that defence.
What is available instead of indirect intent for basic intent offences?
Recklessness
What is a specific intent offence?
An offence which can only be committed with intent, not recklessness
As an important aside, is attempt a specific or basic intent offence?
Specific intent, even if the offence attempted is a basic intent offence.
This means that you cannot commit attempt recklessly and to sustain a conviction, it must be shown that the defendant had the specific intent to commit the offence they were attempting.
What is the doctrine of transferred malice?
If defendant has intent to commit an offence against victim A, but inadvertently commits the offence against victim B, the intent (mens rea) is transferred and the offence is completed in the same way
What is the limitation on transferred malice?
The offence which they intended against A must be the exact same and the offence they committed against B
E.g. the intent to commit a battery whilst throwing a rock at someone’s head would not transfer and sustain a criminal damage charge if the rock actually breaks a window instead.
Where a person is guilty of a crime under transferred malice, what other crime will they usually also be guilty of?
Two crimes- the attempted offence and the full offence
What is the two step test for recklessness?
- Defendant foresees any risk from the act, and
- In the circumstances subjectively known to the defendant, this is an objectively unreasonable risk to take
What is the two step test for negligence in criminal law?
Defendant:
1. Owes a duty a care, and
2. Breaches the expected standard of care
What is not available in the case of strict liability offences, and why?
Defences that negate state of mind, because state of mind is irrelevant to strict liability
Under the identification doctrine, what is required to hold a corporation liable for criminal acts?
Prosecution must identify a controlling mind, whose actions and mental state can be said to be that of the corporation as a whole
Why is the identification doctrine required to hold a corporation liable for criminal acts?
Because even though entities can be liable for criminal acts they cannot have the mens rea for the offences
Can you commit an offence of attempt recklessly?
No- requires specific intention- must have intended to attempt to commit the offence
What is a basic intent crime?
Any offence where recklessness/ negligence will suffice to establish the mens rea of the crime
What type of intention is required for basic intent crimes?
General intent or recklessness
What are the exceptions to the rule on omissions
- Statutory duty
- Special relationships (doctors/patients, spouses & parents)
- Voluntary duty of care
- Contractual duty
- Creating a dangerous situation (fire);
- Public office (policeman on duty/in uniform)
