1. Burden and Standards of Proof, and Elements of Liability

Question 1

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?

Answer 1

Balance of probabilities

Question 2

Where is the first hearing for a criminal trial always heard?

Answer 2

In the Magistrates Court, regardless of the severity of the offence

Question 3

Who does the CPS bring cases to court on behalf of?

Answer 3

The state, the Crown (Rex)

Question 4

Can charities, private citizens, local authorities and other organisations bring prosecutions?

Answer 4

Yes

Question 5

What is the purpose of criminal law?

Answer 5

1. Punish
2. Incapacitate (keep off street)
3. Deter
4. Rehabilitate

Question 6

Who does the burden of proving a crime has been committed lie with?

Answer 6

The prosecution

Question 7

Does the defendant have to prove their innocence?

Answer 7

No, it is up to the prosecution to prove the particulars of the case beyond reasonable doubt

Question 8

When does the burden of proof reverse to lie with the defendant?

Answer 8

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

Question 9

For the defence of self defence, which party bears the burden?

Answer 9

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

Question 10

When the burden of proof lies with the defendant, how is it measured?

Answer 10

On the balance of probabilities

Question 11

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?

Answer 11

Defendant has evidential burden.

Prosecution has legal burden- would have to disprove that self-defence applies.

Question 12

What is the standard of proof in a criminal case?

Answer 12

Prosecutor must prove each element of the crime beyond a reasonable doubt

Question 13

What is the standard of proof in civil cases?

Answer 13

Proving case on ‘the balance of probabilities’- more than 50% chance it happened

Question 14

When the defence bear the burden of proof, what is the standard of proof?

Answer 14

Same as civil- on the balance of probabilities. Jury must think it is more likely than not that the defence is made out.

Question 15

What is the actus reus?

Answer 15

The physical elements of a crime

e.g. Murder- causing the death of another human being (except in wars)

Question 16

What is the mens rea?

Answer 16

Mental element of the crime (what the def was thinking)

Murder: Intention to kill or cause serious harm

Question 17

What is meant by the requirement for ‘concurrence’ between the mens rea and the actus rea?

Answer 17

For liability to airse, the actus reus and mens rea must occur at the same time

Question 18

What are strict liability offences?

Answer 18

An offence can be committed when the actus reus is complete, so there is no need to prove mens rea

Question 19

What is the outcome of a successful complete defence?

Answer 19

Acquittal

Question 20

What is the outcome of a successful partial defence?

Answer 20

Conviction of a lesser offence

Question 21

If all elements of the crime are made out and there are no defences, what is the outcome?

What is this known as?

Answer 21

The criminal equation.

Defendant will be convicted of the crime

Question 22

What are the three elements of actus reus?

Answer 22

1. Conduct (acts or omissions)
2. Circumstances (facts making defendant liable)
3. Result (outcome)

Question 23

Must all three elements of the actus reus always be satisfied for every type offence?

Answer 23

No

Question 24

What is meant by the ‘conduct’ element of the actus reus?

Answer 24

Things done or not done by the defendant which makes them liable for the offence

Question 25

To be liable for the criminal offence of failure to act, what is required?

Answer 25

Defendant:

1. Had a duty to act
2. Breached the duty by failure to act sufficiently

Question 26

What are the five situations in which a duty to act will arise?

Answer 26

1. Statute, e.g. to stop at scene of accident
2. Special relationship, e.g. parent-child, doctor-patient
3. Voluntarily assumed duty of care for victim
4. Contract, e.g. railway guard
5. Defendant created dangerous situation and is aware of having done so

Question 27

What is meany by the ‘circumstance’ element of the actus reus?

Answer 27

For some offences, certain circumstances must exist for the offence to occur

Question 28

What is meant by the ‘outcome’ element of the actus reus?

Answer 28

This applies to result crimes which require a particular outcome for an offence to occur

Question 29

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

Answer 29

True

Question 30

What are the two stages in the test for causation?

Answer 30

1. Factual causation (but for test)
2. Legal causation (operating and substantial cause)

Question 31

What does factual causation consider?

Answer 31

Whether the result occurred but for the defendant’s conduct

Question 32

What does legal causation mean

Answer 32

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

Question 33

If there is more than one cause, and defendant’s action slightly accelerates the result, is there sufficient factual causation?

Answer 33

Yes.

Compare with legal causation under which the cause must be substantial.

Question 34

What is the purpose of legal causation?

Answer 34

The prevent factual causation test from being overinclusive, where issues like lack of foreseeability would make conviction unfair

Question 35

What are the 4 main intervening acts

Answer 35

1. Medical negligence
2. 3rd party acts
3. Natural events
4. Acts of victim (Fright and flight cases; Refusing medical treatment; Suicide)

Question 36

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?

Answer 36

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

Question 37

When will medical treatment break the chain of causation?

Answer 37

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.

Question 38

What is required for intervention of the following parties to break the chain of causation?

1. Defendant
2. Natural event
3. Victim
4. Third party

Answer 38

1. Defendant: New act
2. Natural event: Unforeseeable
3. Victim: Voluntary, and unforeseeable, i.e. so daft as to be unforeseeable
4. Third party: Free, deliberate, and informed

Question 39

What is mens rea?

Answer 39

The state of mind that the Def must have at the time of committing the actus reus to be guilty of the offence

Question 40

What are the two types of intention?

Answer 40

1. Direct
2. Indirect (oblique)

Question 41

When will a defendant directly intend an outcome?

Answer 41

When the outcome is the defendant’s aim or purpose

Question 42

When will a defendant indirectly intend an outcome?

Answer 42

When the outcome is a virtual certainty of the act, and the defendant realises this

Question 43

What are the only offences indirect intention is available for and why?

Answer 43

Specific intent offences only, not basic intent- where intention is the only type of mens rea available for that defence.

Question 44

What is available instead of indirect intent for basic intent offences?

Answer 44

Recklessness

Question 45

What is a specific intent offence?

Answer 45

An offence which can only be committed with intent, not recklessness

Question 46

As an important aside, is attempt a specific or basic intent offence?

Answer 46

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.

Question 47

What is the doctrine of transferred malice?

Answer 47

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

Question 48

What is the limitation on transferred malice?

Answer 48

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.

Question 49

Where a person is guilty of a crime under transferred malice, what other crime will they usually also be guilty of?

Answer 49

Two crimes- the attempted offence and the full offence

Question 50

What is the two step test for recklessness?

Answer 50

1. Defendant foresees any risk from the act, and
2. In the circumstances subjectively known to the defendant, this is an objectively unreasonable risk to take

Question 51

What is the two step test for negligence in criminal law?

Answer 51

Defendant:
1. Owes a duty a care, and
2. Breaches the expected standard of care

Question 52

What is not available in the case of strict liability offences, and why?

Answer 52

Defences that negate state of mind, because state of mind is irrelevant to strict liability

Question 53

Under the identification doctrine, what is required to hold a corporation liable for criminal acts?

Answer 53

Prosecution must identify a controlling mind, whose actions and mental state can be said to be that of the corporation as a whole

Question 54

Why is the identification doctrine required to hold a corporation liable for criminal acts?

Answer 54

Because even though entities can be liable for criminal acts they cannot have the mens rea for the offences

Question 55

Can you commit an offence of attempt recklessly?

Answer 55

No- requires specific intention- must have intended to attempt to commit the offence

Question 56

What is a basic intent crime?

Answer 56

Any offence where recklessness/ negligence will suffice to establish the mens rea of the crime

Question 57

What type of intention is required for basic intent crimes?

Answer 57

General intent or recklessness

Question 58

What are the exceptions to the rule on omissions

Answer 58

1. Statutory duty
2. Special relationships (doctors/patients, spouses & parents)
3. Voluntary duty of care
4. Contractual duty
5. Creating a dangerous situation (fire);
6. Public office (policeman on duty/in uniform)