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

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1
Q

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?

A

Balance of probabilities

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2
Q

What defences must the prosecution disprove?

A

Self-defence, and loss of control

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3
Q

What must the jury be to convict someone beyond a reasonable doubt?

A

The jury must be sure that the defendant did it

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4
Q

What are the three elements of actus reus?

A
  1. Conduct (acts or omissions)
  2. Circumstances (facts making defendant liable)
  3. Result (outcome)
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5
Q

What are the two requirements for a failure to act to amount to a criminal offence?

A

Defendant:

  1. Had a duty to act
  2. Breached the duty by failure to act sufficiently
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6
Q

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

A
  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
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7
Q

What are the two stages in the test for causation?

A
  1. Factual causation
  2. Legal causation
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8
Q

What does factual causation consider?

A

Whether the result would have occurred but for the defendant’s conduct

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9
Q

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

A

Yes.

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

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10
Q

What is the purpose of legal causation?

A

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

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11
Q

What are the two requirements of a defendant’s action before it will be a legal cause?

A

It must be:
1. Substantial, i.e. more than minimal, slight, or trifling, and
2. Operative, i.e. actually cause the result and is negated by a more substantial intervening act or event

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12
Q

However, what is the thin skull rule which is somewhat of an exception to the intervening act part of legal causation?

A

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

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13
Q

When will medical treatment break the chain of causation?

A

When the treatment is so bad that the original injury becomes the background

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14
Q

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
A
  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
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15
Q

What are the two types of intention?

A
  1. Direct
  2. Indirect (oblique)
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16
Q

When will a defendant directly intend an outcome?

A

When the outcome is the defendant’s aim or purpose

17
Q

When will a defendant indirectly intend an outcome?

A

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

18
Q

What are the only offences indirect intention is available for?

A

Specific intent offences only, not basic intent

19
Q

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

A

Recklessness

20
Q

What is a specific intent offence?

A

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

21
Q

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

A

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.

22
Q

What is the doctrine of transferred malice?

A

If defendant has intent to commit an offence against victim A, but inadvertently commits the offence against victim B, the intent is transferred and the offence is completed in the same way

23
Q

What is the limitation on transferred malice?

A

The offence must be the exact same.

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.

24
Q

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

A

Attempt against victim A

25
Q

What is the two step test for recklessness?

A
  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
26
Q

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

A

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

27
Q

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

A

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

28
Q

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

A

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