5b. Criminal Law

Question 1

General

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

General

What defences must the prosecution disprove?

Answer 2

Self-defence, and loss of control

Question 3

General

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

Answer 3

The jury must be sure that the defendant did it

Question 4

General

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

Answer 4

Defendant:

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

Question 5

General

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

Answer 5

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 6

General

What are the two stages in the test for causation?

Answer 6

1. Factual causation
2. Legal causation

Question 7

General

What does factual causation consider?

Answer 7

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

Question 8

General

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

Answer 8

Yes

Compare with legal causation under which the cause must be substantial

Question 9

General

What is the purpose of legal causation?

Answer 9

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

Question 10

General

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

Answer 10

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

Question 11

General

When will medical treatment break the chain of causation?

Answer 11

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

(i.e. the treatment becomes the new operative cause)

Question 12

General

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 12

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 13

General

What are the two types of intention?

Answer 13

1. Direct
2. Indirect (oblique)

Question 14

General

When will a defendant (1) directly intend an outcome and (2) indirectly intend an outcome?

Answer 14

1. When the outcome is the defendant’s aim or purpose
2. When the outcome is a virtually certain consequence of the act, and the defendant realises this

Question 15

General

What are the only offences indirect intention is available for?

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

Answer 15

Specific intent offences only, not basic intent

Recklessness

Question 16

General

What is a specific intent offence?

Answer 16

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

Question 17

General

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

Answer 17

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 18

General

What is the doctrine of transferred malice?

What is the limitation on transferred malice?

Answer 18

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

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.

Question 19

General

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

Answer 19

Attempt against victim A

Question 20

General

What is the two step test for recklessness?

Answer 20

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 21

General

What is the three-step test for negligence in criminal law?

Answer 21

Defendant:
1. Owes a duty a care,
2. Breaches by falling below the expected standard of care

and

3. The breach causes the harm

Same as tort

Question 22

General

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

Answer 22

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

Question 23

General

Who is a principal offender?

When are two defendants both considered to be principal offenders?

Answer 23

Person who commits the actus reus and has the relevant mens rea at the same time

If they act together for a common purpose, in committing the act

Question 24

General

What is an innocent agent situation, and who is liable?

Answer 24

Where a defendant asks another do something the defendant knows will amount to an offence, but the other person is unaware, defendant can still be guilty as a principal

Question 25

# General What are the ways in which accessorial liability can arise?

Answer 25

1. Aid 2. Abet 3. Counsel 4. Procure

Question 26

# General What is abetting?

Answer 26

Encouraging or inciting an offence **at the scene of the crime**

Question 27

# General Under the doctrine of joint enterprise, when might a secondary participant in a crime be treated as a principal?

Answer 27

When the secondary participant assists or encourages the commission of a crime **and** intends that the crime be committed

Question 28

# Homicide What are the four steps for the crime of **murder**?

Answer 28

A defendant commits murder when they: 1. Cause 2. The death of another **human** 3. Unlawfully 4. With intent to kill or cause GBH ## Footnote Dead means medically brain-dead

Question 29

# Homicide When can the physical act causing murder be an omission?

Answer 29

When the defendant has a duty to care for the victim

Question 30

# Homicide Is a fetus a human being for the purposes of murder?

Answer 30

No

Question 31

# Homicide When does **voluntary** manslaughter arise?

Answer 31

When actus reus and mens rea of murder are made out, but there are partial defences available to the defendant to reduce their liability ## Footnote Defendant did it on purpose but has an excuse

Question 32

# Homicide What partial defences will reduce murder to voluntary manslaughter? ## Footnote Are they only available to a murder charge?

Answer 32

1. Diminished responsibility 2. Loss of control ## Footnote Yes

Question 33

# Homicide What are the four requirements for diminished responsibility? ## Footnote Who must prove diminished responsibility and to what standard?

Answer 33

1. Defendant had abnormality of mental functioning and the **abnormality** must: 2. Arise from a **recognised medical condition** 3. Substantially impair their ability to *understand their conduct, form rational judgment, or exercise self-control*, and 4. Provide an explanation for the killing ## Footnote **Defendant**, on balance of probabilities

Question 34

# Homicide What is loss of control the modern name for, and what are the two requirements for it? ## Footnote Who must prove loss of control and to what standard?

Answer 34

**Provocation** 1. Loss of control was caused by a **qualifying trigger**, and 3. A *hypothetical person* in the defendant's position *might have reacted the same way* ## Footnote The **prosecution** must prove beyond reasonable doubt that **defendant did not lose control**

Question 35

# Homicide What are the two things which amount to a qualifying trigger? ## Footnote What is specifically excluded as a qualifying trigger?

Answer 35

1. Fear of **serious violence** from victim against defendant or another identified person 2. Something said or done constituting a **circumstance of an extremely grave character** which gave defendant a **justifiable sense of being wronged** ## Footnote Revenge, and discovering sexual infidelity (unless paired with taunting)

Question 36

# Homicide When does **involuntary manslaughter** occur and what are the two types?

Answer 36

When the mens rea of murder is not made out 1. Unlawful act manslaughter 2. Gross negligence manslaughter ## Footnote Defendant did it but not on purpose

Question 37

# Homicide When does unlawful act manslaughter arise?

Answer 37

Defendant, with the relevant mens rea, commits a **dangerous** criminal offence, that carries an **objective risk to the victim** and they die as a result

Question 38

# Homicide What are the four requirements of the act for unlawful act manslaughter to apply? ## Footnote Can unlawful act manslaughter be committed by omission?

Answer 38

1. D must intend the **act** and the act must be: 2. Unlawful 3. Dangerous and 4. The cause of death *(applying factual and legal causation)* ## Footnote No

Question 39

# Homicide When does gross negligence manslaughter arise?

Answer 39

Defendant does not commit an offence or knowingly take a risk, but breaches a duty in such an **extremely negligent way** that they are **deemed criminally culpable** ## Footnote *There must be a serious and obvious risk of death, whether or not D realises.*

Question 40

# Homicide What are the three elements of gross negligence manslaughter? ## Footnote Can gross negligence manslaughter be committed by omission, and why?

Answer 40

1. D owes duty of care to victim, breaches it and it causes death 2. Serious and obvious risk of death (whether or not D was aware) 3. Breach was so bad as to give rise to criminal culpability ## Footnote Yes, because it is based on a duty, and where there is a duty to act, failure to do so will be a breach

Question 41

# Non-fatal offences against the person When does assault occur? ## Footnote Does the victim need to be afraid?

Answer 41

When defendant intentionally or recklessly causes another person to apprehend immediate unlawful personal force *(i.e. a battery)* ## Footnote No. Apprehension goes to belief, not fear.

Question 42

# Non-fatal offences against the person How can words (1) amount to and (2) negate an assault?

Answer 42

1. If they cause the victim to believe a battery is imminent 2. When they stop the victim from believing a battery is imminent

Question 43

# Non-fatal offences against the person Can a conditional threat be an assault?

Answer 43

Yes, because victim can have the apprehension that the battery will occur if the condition is met

Question 44

# Non-fatal offences against the person How is intent and recklessness applied to assault?

Answer 44

**Intent**: Defendant intends the victim to apprehend a battery, *or* **Recklessness**: Defendant foresees the risk that their actions could make the victim apprehend a battery and this risk is unreasonable

Question 45

# Non-fatal offences against the person When does battery occur? ## Footnote Can indirect contact amount to battery?

Answer 45

When defendant intentionally or recklessly applies unlawful personal force to another person ## Footnote Yes, contact can be direct and indirect *(unlike tort where it must be direct)*

Question 46

# Non-fatal offences against the person What is an example of how battery can be delayed?

Answer 46

If defendant sets a trap for the victim, which eventually causes unlawful force to be applied to the victim

Question 47

# Non-fatal offences against the person How can a battery arise by omission, and why?

Answer 47

Defendant applies force accidentally without intent or recklessness, but then refuses to remove the force, because at this point the actus reus and mens rea merge

Question 48

# Non-fatal offences against the person What are the two requirements to consent to assault or battery?

Answer 48

Consent must be: 1. Expressed or implied to defendant, and 2. Given by someone with sufficient capacity, freedom, and information to make an actual choice

Question 49

# Non-fatal offences against the person What is the actus reus of section 47 **assault occasioning actual bodily harm**? ## Footnote What is **actual bodily harm**?

Answer 49

Same as assault or battery **plus** causing **actual bodily harm** ## Footnote Any hurt or injury, more than merely trifling, which interferes with the health or comfort of the victim, including psychiatric injury

Question 50

# Non-fatal offences against the person How can simple assault lead to a charge of ABH? ## Footnote Does a defendant need to intend to cause or be reckless as to ABH?

Answer 50

If defendant reasonably harms themselves while escaping the battery they are apprehending because of the defendant's assault ## Footnote No

Question 51

What is the actus reus for both section 20 and section 18 **wounding or inflicting grievous bodily harm**?

Answer 51

Causing a **wound** or **grievous bodily harm**

Question 52

# Non-fatal offences against the person What is a wound?

Answer 52

An injury where both layers of skin are broken *(bruising not enough)*

Question 53

# Non-fatal offences against the person What are the two types of GBH offence, and which is more serious?

Answer 53

1. Section 20 GBH 2. Section 18 GBH *(more serious)*

Question 54

# Non-fatal offences against the person What is the mens rea for the less serious section 20 GBH?

Answer 54

Intention to cause, or *recklessness* regarding, **some harm**

Question 55

# Non-fatal offences against the person What are the two mens rea options for the more serious section 18 GBH? ## Footnote What is the effect of the second option?

Answer 55

1. **Intent** to cause **serious harm**, *or* 2. Recklessness as to **some harm** and intention to resist lawful arrest ## Footnote Under option 2, section 20 GBH is essentially upgraded to the more serious section 18 just because you intended to resist arrest

Question 56

# Non-fatal offences against the person What are the four situations where consent to ABH or GBH is allowed?

Answer 56

1. Surgery 2. Body modification 3. Religious practices 4. Sports *(as long as not too far outside the rules)*

Question 57

# Non-fatal offences against the person What are the three requirements to consent to ABH, or either GBH?

Answer 57

Consent must be: 1. Expressed or implied to defendant in a legally recognised manner, and 2. Given by someone with sufficient capacity, freedom, and information to make an actual choice, and 3. Must concern a **legally valid category of consent**, *otherwise consent is invalid*

Question 58

# Theft offences What are the elements of **theft** under section 1 of the Theft Act 1968?

Answer 58

Dishonest appropriation of the property of another with intent to permanently deprive them of it

Question 59

# Theft offences What is appropriation? ## Footnote In a shop, when does appropriation occur?

Answer 59

Any assumption of any right of the owner relating to the property ## Footnote When the item is picked up, even if no mens rea *at that time*

Question 60

# Theft offences Can the actus reus and mens rea occur at separate times and still make out the offence of theft?

Answer 60

Yes, as long as there is coincidence of the two at some point

Question 61

# Theft offences What is property for the purposes of theft?

Answer 61

Money, and all other property, including intangible property, real property, and personal property

Question 62

# Theft offences What are three specific situations in which a person would still be deemed to take property belonging to *another*?

Answer 62

1. Stealing from co-owners or co-partners 2. Director stealing from their company 3. Owner taking back an item impliedly left on trust for services rendered

Question 63

# Theft offences When is intent determined? ## Footnote What should this not be confused with?

Answer 63

Intent is determined at the time of appropriation, such that if there is coincidence of the actus reus and mens rea at this time, the offence is committed, even if the defendant changes their mind later. ## Footnote This should not be confused with the fact that where there is **no coincidence of actus reus and mens rea** at the time of appropriation, the offence can still be committed later if the mens rea occurs. This is because *appropriation* is a continuing act.

Question 64

# Theft offences What is the two part test for dishonesty?

Answer 64

1. Ascertain what facts the defendant knew *(subjective)*, and then 2. Judge whether the behaviour based on this knowledge was objectively dishonest

Question 65

# Theft offences What are three situations where the defendant will not be deemed to be dishonest?

Answer 65

Where the defendant *believes* they: 1. Have a **right** to the property in law 2. Would have the owner's **consent**, or 3. Owner could not be discovered taking reasonable steps

Question 66

# Theft offences When is **robbery** committed under section 8?

Answer 66

When a defendant commits **theft**, and **immediately before or at the same time**, they use **force** or put a victim *(or any other person)* in fear of force **in order to steal**

Question 67

# Theft offences What are the three ways the element of force is satisfied for robbery? ## Footnote If someone commits a theft and uses a fake gun in order to steal, are they guilty of robbery?

Answer 67

1. Inflict force 2. Cause apprehension of force 3. *Intend* to cause apprehension of force ## Footnote Yes, **even if victim knew the gun was fake**, because defendant **intended to cause apprehension of force**

Question 68

# Theft offences What are the two types of Burglary under section 9?

Answer 68

- Section 9(1)**(a)**: Burglary by **trespass with *intent*** - Section 9(1)**(b)**: Burglary by **offences committed following trespassory entry**

Question 69

# Theft offences What is required for **entry** under both section 9(1)**(a)** and **(b)**?

Answer 69

Defendant must **knowingly or recklessly** enter a building or part of as a **trespassor** with **any part** of their body

Question 70

# Theft offences What is the standard required of a building or part of a building for burglary?

Answer 70

Struture with *some degree of permanence*

Question 71

# Theft offences The defendant must have intent to do one of what three things **at the time of entry** for section 9(1)**(a)** burglary?

Answer 71

Intent to: 1. Steal anything in the building 2. Inflict GBH on anyone in the building 3. Cause criminal damage to the building or anything inside it

Question 72

# Theft offences The defendant must do one of what two things **after entry** for section 9(1)**(b)** burglary

Answer 72

1. Steal or **attempt** to steal something from the building 2. Inflict or **attempt** to inflict GBH on any person in the building

Question 73

# Theft offences Therefore, intent to commit what offence will give rise to section 9(1)(a) burglary by trespass with intent, but is irrelevant for section 9(1)(b) burglary by offences after entry?

Answer 73

Criminal damage to the building or anything inside it

Question 74

# Theft offences Other than the timing of the offence relative to entry and the fact criminal damage will not give rise to section 9(1)(b), what is the main difference between the two?

Answer 74

Section 9(1)(a) only requires intent. Section 9(1)(b) requires an actual offence or an attempt of it to be committed.

Question 75

# Theft offences What is the baseline mens rea for both types of burglary?

Answer 75

The defendant must know or be reckless as to the fact they are a trespasser

Question 76

# Theft offences What are the additional mens rea requirements for section 9(1)(a) and (b) respectively?

Answer 76

- Section 9(1)*(a)*: Intent to commit the underlying offence at time of entry - Section 9(1)*(b)*: Mens rea for underlying offence required

Question 77

# Theft offences Burglary will be upgraded to aggravated burglary if, whilst committing a burglary the defendant has one of what three things with them?

Answer 77

1. Firearm or imitation firearm 2. Weapon of offence 3. Explosive

Question 78

# Theft offences What is the definition of (1) weapon of offence and (2) explosive?

Answer 78

1. Any item made or adapted to cause injury **or** intended by defendant to be used as such 2. Any item manufactured to create an explosion **or** intended by the defendant to explode

Question 79

# Fraud What are the three fraud offences?

Answer 79

1. Fraud by false representation 2. Fraud by failing to disclose information 3. Fraud by abuse of position

Question 80

# Fraud For **all three** fraud offences, the defendant must **intend** one of what two things when they make the false representation, fail to disclose information, or abuse their position?

Answer 80

1. To make a gain for themselves or another, or 2. To cause or risk loss to another

Question 81

# Fraud In addition to the general intent, what act is required to commit fraud by false representation? ## Footnote Can the false representation be made via an agent?

Answer 81

Dishonestly making a false or misleading representation *(dishonesty judged by an objective standard)*, **knowing** it is false or misleading ## Footnote Yes

Question 82

# Fraud Must a representation be untrue to be false? ## Footnote For fraud by false representation, what knowledge must the defendant have?

Answer 82

No, it can also just be misleading ## Footnote They must **know** the representation is or might be false or misleading*, making it a specific intent crime*

Question 83

# Fraud In addition to the general intent, what act is required to commit fraud by abuse of position? ## Footnote Can it be committed by an omission? Does the defendant need the know they occupy a position in which they are expected to safeguard the financial interests of another?

Answer 83

Abusing a position in which defendant is expected to safeguard the financial interests of another ## Footnote Yes. No.

Question 84

# Criminal damage When does a defendant commit criminal damage?

Answer 84

When they, *without lawful excuse*, destroy or damage property belonging to another intending to do so, or being reckless as to whether the property is destroyed or damaged

Question 85

# Criminal damage What is the general test for whether property is *damaged*? ## Footnote Only what type of property can be *damaged*?

Answer 85

1. Usefulness or value is impaired, and/or 2. Will involve effort or expense to repair ## Footnote Tangible property

Question 86

# Criminal damage What is the exception to the rule that a person generally cannot commit criminal damage to property they own?

Answer 86

If the property is co-owned with another

Question 87

# Criminal damage To commit criminal damage, what must the defendant know or believe?

Answer 87

That the property belongs to another

Question 88

# Criminal damage What are the two defences to criminal damage?

Answer 88

Defendant: 1. Believes owner did or would consent, or 2. *Honestly* believes any property is in immediate need of protection and this is reasonable in the circumstances

Question 89

# Criminal damage What is the additional mens rea requirement to elevate criminal damage to aggravated criminal damage?

Answer 89

Defendant must intend or be reckless as to the endangerment of life **by the exact damage caused to the property** ## Footnote *Life does not actually have to be endangered, but D checking to make sure there are no people around such that no life **could** be endangered will negate the aggravated part of the offence.*

Question 90

# Criminal damage What are the other two differences between criminal damage and aggravated criminal damage?

Answer 90

1. Property can belong to the defendant 2. The defences to criminal damage do not apply

Question 91

# Criminal damage As an aside, why do the criminal damage defences not apply to aggravated criminal damage?

Answer 91

1. **Owner consent defence**: Because it would be unusual to allow the owner of property to consent to the endangerment of life 2. **Protecting own property defence**: Because the law does not allow human life to be endangered for the protection of property *(like how self-defence can permit lethal force but never to protect property alone)*

Question 92

# Criminal damage What is (1) arson and (2) aggravated arson? ## Footnote Damage by what alone will not amount to arson, but merely criminal damage?

Answer 92

**Arson** is criminal damage **by fire** **Aggravated** arson is aggravated criminal damage by fire ## Footnote Damage by smoke, but not fire

Question 93

# Inchoate What is required to commit attempt?

Answer 93

D fails to commit the crime but does something **more than merely preparatory**, with the **specific intent** to commit the underlying offence

Question 94

# Inchoate What is the mens rea for attempt, and what is the effect of this?

Answer 94

It is generally always the intention to complete the full offence, and is therefore sometimes a higher standard than the underlying offence (e.g. where recklessness is an option)

Question 95

# Inchoate What is factual impossibility and does it prevent liability?

Answer 95

Where defendant attempts an offence which is *physically* impossible to complete, liability can still arise

Question 96

# Inchoate What is legal impossibility and does it prevent liability?

Answer 96

Where a defendant, had they completed all acts they had intended, would not have actually broken any law, no liability can attach

Question 97

# Inchoate Can a defendant charged with a completed crime also be charged with attempt?

Answer 97

Yes, provided the charge can be sustained, e.g. intent required over recklessness

Question 98

# Inchoate What is the maximum sentence allowable for attempt?

Answer 98

The same as the completed crime, but the courts do not tend to punish that severely

Question 99

# Inchoate What is the exception to the rule that attempt can possibly carry the same *possible* sentence as the completed offence?

Answer 99

The life sentence for attempted murder is discretionary, whereas for murder it is mandatory

Question 100

# Defences Regarding **intoxication**, what does the law draw a line between?

Answer 100

**Voluntary** and **involuntary** intoxication

Question 101

# Defences What have the courts held when a defendant becomes intoxicated through no fault of their own? ## Footnote Is involuntary intoxication available where the defendant underestimates the strength of their own drink?

Answer 101

They may not be able to form the mental state required for the offence ## Footnote No

Question 102

# Defences When will involuntary intoxication not be available, and what facts will be a tip off to this?

Answer 102

Not available where the intent was not formed by the intoxicated state, but rather their **desires and tendencies toward the behaviour**

Question 103

# Defences When considering **voluntary** intoxication, what are the two things the court will consider?

Answer 103

1. Whether the drug was dangerous or non-dangerous, 2. And*, if dangerous*, whether the offence was basic intent or specific intent

Question 104

# Defences Will voluntary intoxication by a (1) non-dangerous substance and (2) dangerous substance negate mens rea?

Answer 104

1. Yes, subject to the proviso that intoxicated intent is still intent 2. Only if the offence is one of **specific intent**

Question 105

# Defences In what specific intent situation will a voluntarily intoxicated person still be guilty?

Answer 105

Where they become intoxicated only to gain the courage to commit the offence

Question 106

# Defences Why is intoxication not a defence to strict liability offences?

Answer 106

Because strict liability offences have no mens rea requirement

Question 107

# Defences For **self-defence** to be available, what three things must the defendant be acting to protect, or what other two things must they be trying to do?

Answer 107

**Protect:** 1. Self 2. Another, or 3. Property **or** 1. Prevent crime, or 2. Effect lawful arrest

Question 108

# Defences To rely on self-defence, what must the defendant subjectively believe?

Answer 108

That force is **immediately** required

Question 109

# Defences To rely on self-defence, what must be true of the **force** used?

Answer 109

It must be ***objectively* proportionate** based on the facts that the **defendant *subjectively*** believes them to be

Question 110

# Defences Regarding the amount of force used, what is the standard where the defendant is a householder acting against an intruder who has entered their home?

Answer 110

The householder may use any force as long as it is not **grossly** or **unreasonably disproportionate**

Question 111

# Defences In determining what is grossly or unreasonably disproportionate, what will the court consider?

Answer 111

Decisions that were made in the heat of the moment

Question 112

# Defences In addition to being in their dwelling, what are the two other criteria the defendant must satisfy to rely on the householder exception?

Answer 112

Defendant must: 1. Not be a trespasser, and 2. Believe that the victim is a trespasser