5b. Criminal Law Flashcards
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?
Balance of probabilities
General
What defences must the prosecution disprove?
Self-defence, and loss of control
General
What must the jury be to convict someone beyond a reasonable doubt?
The jury must be sure that the defendant did it
General
What are the two requirements for a failure to act to amount to a criminal offence?
Defendant:
- Had a duty to act
- Breached the duty by failure to act sufficiently
General
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
General
What are the two stages in the test for causation?
- Factual causation
- Legal causation
General
What does factual causation consider?
Whether the result would have occurred but for the defendant’s conduct
General
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
General
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
General
What are the two requirements of a defendant’s action before it will be a legal cause?
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)
General
When will medical treatment break the chain of causation?
When the treatment is so bad that the original injury becomes the background
(i.e. the treatment becomes the new operative cause)
General
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
General
What are the two types of intention?
- Direct
- Indirect (oblique)
General
When will a defendant (1) directly intend an outcome and (2) indirectly intend an outcome?
- When the outcome is the defendant’s aim or purpose
- When the outcome is a virtually certain consequence of the act, and the defendant realises this
General
What are the only offences indirect intention is available for?
What is available instead of indirect intent for basic intent offences?
Specific intent offences only, not basic intent
Recklessness
General
What is a specific intent offence?
An offence which can only be committed with intent, not recklessness
General
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.
General
What is the doctrine of transferred malice?
What is the limitation on transferred malice?
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.
General
Where a person is guilty of a crime under transferred malice, what other crime will they usually also be guilty of?
Attempt against victim A
General
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
General
What is the three-step test for negligence in criminal law?
Defendant:
1. Owes a duty a care,
2. Breaches by falling below the expected standard of care
and
- The breach causes the harm
Same as tort
General
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
General
Who is a principal offender?
When are two defendants both considered to be principal offenders?
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
General
What is an innocent agent situation, and who is liable?
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
General
What are the ways in which accessorial liability can arise?
- Aid
- Abet
- Counsel
- Procure
General
What is abetting?
Encouraging or inciting an offence at the scene of the crime
General
Under the doctrine of joint enterprise, when might a secondary participant in a crime be treated as a principal?
When the secondary participant assists or encourages the commission of a crime and intends that the crime be committed
Homicide
What are the four steps for the crime of murder?
A defendant commits murder when they:
- Cause
- The death of another human
- Unlawfully
- With intent to kill or cause GBH
Dead means medically brain-dead
Homicide
When can the physical act causing murder be an omission?
When the defendant has a duty to care for the victim
Homicide
Is a fetus a human being for the purposes of murder?
No
Homicide
When does voluntary manslaughter arise?
When actus reus and mens rea of murder are made out, but there are partial defences available to the defendant to reduce their liability
Defendant did it on purpose but has an excuse
Homicide
What partial defences will reduce murder to voluntary manslaughter?
Are they only available to a murder charge?
- Diminished responsibility
- Loss of control
Yes
Homicide
What are the four requirements for diminished responsibility?
Who must prove diminished responsibility and to what standard?
- Defendant had abnormality of mental functioning
and the abnormality must:
- Arise from a recognised medical condition
- Substantially impair their ability to understand their conduct, form rational judgment, or exercise self-control, and
- Provide an explanation for the killing
Defendant, on balance of probabilities
Homicide
What is loss of control the modern name for, and what are the two requirements for it?
Who must prove loss of control and to what standard?
Provocation
- Loss of control was caused by a qualifying trigger, and
- A hypothetical person in the defendant’s position might have reacted the same way
The prosecution must prove beyond reasonable doubt that defendant did not lose control
Homicide
What are the two things which amount to a qualifying trigger?
What is specifically excluded as a qualifying trigger?
- Fear of serious violence from victim against defendant or another identified person
- Something said or done constituting a circumstance of an extremely grave character which gave defendant a justifiable sense of being wronged
Revenge, and discovering sexual infidelity (unless paired with taunting)
Homicide
When does involuntary manslaughter occur and what are the two types?
When the mens rea of murder is not made out
- Unlawful act manslaughter
- Gross negligence manslaughter
Defendant did it but not on purpose
Homicide
When does unlawful act manslaughter arise?
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
Homicide
What are the four requirements of the act for unlawful act manslaughter to apply?
Can unlawful act manslaughter be committed by omission?
- D must intend the act
and the act must be: - Unlawful
- Dangerous and
- The cause of death (applying factual and legal causation)
No
Homicide
When does gross negligence manslaughter arise?
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
There must be a serious and obvious risk of death, whether or not D realises.
Homicide
What are the three elements of gross negligence manslaughter?
Can gross negligence manslaughter be committed by omission, and why?
- D owes duty of care to victim, breaches it and it causes death
- Serious and obvious risk of death (whether or not D was aware)
- Breach was so bad as to give rise to criminal culpability
Yes, because it is based on a duty, and where there is a duty to act, failure to do so will be a breach
Non-fatal offences against the person
When does assault occur?
Does the victim need to be afraid?
When defendant intentionally or recklessly causes another person to apprehend immediate unlawful personal force (i.e. a battery)
No. Apprehension goes to belief, not fear.
Non-fatal offences against the person
How can words (1) amount to and (2) negate an assault?
- If they cause the victim to believe a battery is imminent
- When they stop the victim from believing a battery is imminent
Non-fatal offences against the person
Can a conditional threat be an assault?
Yes, because victim can have the apprehension that the battery will occur if the condition is met
Non-fatal offences against the person
How is intent and recklessness applied to assault?
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
Non-fatal offences against the person
When does battery occur?
Can indirect contact amount to battery?
When defendant intentionally or recklessly applies unlawful personal force to another person
Yes, contact can be direct and indirect (unlike tort where it must be direct)
Non-fatal offences against the person
What is an example of how battery can be delayed?
If defendant sets a trap for the victim, which eventually causes unlawful force to be applied to the victim
Non-fatal offences against the person
How can a battery arise by omission, and why?
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
Non-fatal offences against the person
What are the two requirements to consent to assault or battery?
Consent must be:
- Expressed or implied to defendant, and
- Given by someone with sufficient capacity, freedom, and information to make an actual choice
Non-fatal offences against the person
What is the actus reus of section 47 assault occasioning actual bodily harm?
What is actual bodily harm?
Same as assault or battery plus causing actual bodily harm
Any hurt or injury, more than merely trifling, which interferes with the health or comfort of the victim, including psychiatric injury
Non-fatal offences against the person
How can simple assault lead to a charge of ABH?
Does a defendant need to intend to cause or be reckless as to ABH?
If defendant reasonably harms themselves while escaping the battery they are apprehending because of the defendant’s assault
No
What is the actus reus for both section 20 and section 18 wounding or inflicting grievous bodily harm?
Causing a wound or grievous bodily harm
Non-fatal offences against the person
What is a wound?
An injury where both layers of skin are broken (bruising not enough)
Non-fatal offences against the person
What are the two types of GBH offence, and which is more serious?
- Section 20 GBH
- Section 18 GBH (more serious)
Non-fatal offences against the person
What is the mens rea for the less serious section 20 GBH?
Intention to cause, or recklessness regarding, some harm
Non-fatal offences against the person
What are the two mens rea options for the more serious section 18 GBH?
What is the effect of the second option?
- Intent to cause serious harm, or
- Recklessness as to some harm and intention to resist lawful arrest
Under option 2, section 20 GBH is essentially upgraded to the more serious section 18 just because you intended to resist arrest
Non-fatal offences against the person
What are the four situations where consent to ABH or GBH is allowed?
- Surgery
- Body modification
- Religious practices
- Sports (as long as not too far outside the rules)
Non-fatal offences against the person
What are the three requirements to consent to ABH, or either GBH?
Consent must be:
- Expressed or implied to defendant in a legally recognised manner, and
- Given by someone with sufficient capacity, freedom, and information to make an actual choice, and
- Must concern a legally valid category of consent, otherwise consent is invalid
Theft offences
What are the elements of theft under section 1 of the Theft Act 1968?
Dishonest appropriation of the property of another with intent to permanently deprive them of it
Theft offences
What is appropriation?
In a shop, when does appropriation occur?
Any assumption of any right of the owner relating to the property
When the item is picked up, even if no mens rea at that time
Theft offences
Can the actus reus and mens rea occur at separate times and still make out the offence of theft?
Yes, as long as there is coincidence of the two at some point
Theft offences
What is property for the purposes of theft?
Money, and all other property, including intangible property, real property, and personal property
Theft offences
What are three specific situations in which a person would still be deemed to take property belonging to another?
- Stealing from co-owners or co-partners
- Director stealing from their company
- Owner taking back an item impliedly left on trust for services rendered
Theft offences
When is intent determined?
What should this not be confused with?
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.
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.
Theft offences
What is the two part test for dishonesty?
- Ascertain what facts the defendant knew (subjective), and then
- Judge whether the behaviour based on this knowledge was objectively dishonest
Theft offences
What are three situations where the defendant will not be deemed to be dishonest?
Where the defendant believes they:
- Have a right to the property in law
- Would have the owner’s consent, or
- Owner could not be discovered taking reasonable steps
Theft offences
When is robbery committed under section 8?
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
Theft offences
What are the three ways the element of force is satisfied for robbery?
If someone commits a theft and uses a fake gun in order to steal, are they guilty of robbery?
- Inflict force
- Cause apprehension of force
- Intend to cause apprehension of force
Yes, even if victim knew the gun was fake, because defendant intended to cause apprehension of force
Theft offences
What are the two types of Burglary under section 9?
- Section 9(1)(a): Burglary by trespass with intent
- Section 9(1)(b): Burglary by offences committed following trespassory entry
Theft offences
What is required for entry under both section 9(1)(a) and (b)?
Defendant must knowingly or recklessly enter a building or part of as a trespassor with any part of their body
Theft offences
What is the standard required of a building or part of a building for burglary?
Struture with some degree of permanence
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?
Intent to:
- Steal anything in the building
- Inflict GBH on anyone in the building
- Cause criminal damage to the building or anything inside it
Theft offences
The defendant must do one of what two things after entry for section 9(1)(b) burglary
- Steal or attempt to steal something from the building
- Inflict or attempt to inflict GBH on any person in the building
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?
Criminal damage to the building or anything inside it
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?
Section 9(1)(a) only requires intent.
Section 9(1)(b) requires an actual offence or an attempt of it to be committed.
Theft offences
What is the baseline mens rea for both types of burglary?
The defendant must know or be reckless as to the fact they are a trespasser
Theft offences
What are the additional mens rea requirements for section 9(1)(a) and (b) respectively?
- Section 9(1)(a): Intent to commit the underlying offence at time of entry
- Section 9(1)(b): Mens rea for underlying offence required
Theft offences
Burglary will be upgraded to aggravated burglary if, whilst committing a burglary the defendant has one of what three things with them?
- Firearm or imitation firearm
- Weapon of offence
- Explosive
Theft offences
What is the definition of (1) weapon of offence and (2) explosive?
- Any item made or adapted to cause injury or intended by defendant to be used as such
- Any item manufactured to create an explosion or intended by the defendant to explode
Fraud
What are the three fraud offences?
- Fraud by false representation
- Fraud by failing to disclose information
- Fraud by abuse of position
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?
- To make a gain for themselves or another, or
- To cause or risk loss to another
Fraud
In addition to the general intent, what act is required to commit fraud by false representation?
Can the false representation be made via an agent?
Dishonestly making a false or misleading representation (dishonesty judged by an objective standard), knowing it is false or misleading
Yes
Fraud
Must a representation be untrue to be false?
For fraud by false representation, what knowledge must the defendant have?
No, it can also just be misleading
They must know the representation is or might be false or misleading, making it a specific intent crime
Fraud
In addition to the general intent, what act is required to commit fraud by abuse of position?
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?
Abusing a position in which defendant is expected to safeguard the financial interests of another
Yes. No.
Criminal damage
When does a defendant commit criminal damage?
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
Criminal damage
What is the general test for whether property is damaged?
Only what type of property can be damaged?
- Usefulness or value is impaired, and/or
- Will involve effort or expense to repair
Tangible property
Criminal damage
What is the exception to the rule that a person generally cannot commit criminal damage to property they own?
If the property is co-owned with another
Criminal damage
To commit criminal damage, what must the defendant know or believe?
That the property belongs to another
Criminal damage
What are the two defences to criminal damage?
Defendant:
- Believes owner did or would consent, or
- Honestly believes any property is in immediate need of protection and this is reasonable in the circumstances
Criminal damage
What is the additional mens rea requirement to elevate criminal damage to aggravated criminal damage?
Defendant must intend or be reckless as to the endangerment of life by the exact damage caused to the property
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.
Criminal damage
What are the other two differences between criminal damage and aggravated criminal damage?
- Property can belong to the defendant
- The defences to criminal damage do not apply
Criminal damage
As an aside, why do the criminal damage defences not apply to aggravated criminal damage?
- Owner consent defence: Because it would be unusual to allow the owner of property to consent to the endangerment of life
- 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)
Criminal damage
What is (1) arson and (2) aggravated arson?
Damage by what alone will not amount to arson, but merely criminal damage?
Arson is criminal damage by fire
Aggravated arson is aggravated criminal damage by fire
Damage by smoke, but not fire
Inchoate
What is required to commit attempt?
D fails to commit the crime but does something more than merely preparatory, with the specific intent to commit the underlying offence
Inchoate
What is the mens rea for attempt, and what is the effect of this?
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)
Inchoate
What is factual impossibility and does it prevent liability?
Where defendant attempts an offence which is physically impossible to complete, liability can still arise
Inchoate
What is legal impossibility and does it prevent liability?
Where a defendant, had they completed all acts they had intended, would not have actually broken any law, no liability can attach
Inchoate
Can a defendant charged with a completed crime also be charged with attempt?
Yes, provided the charge can be sustained, e.g. intent required over recklessness
Inchoate
What is the maximum sentence allowable for attempt?
The same as the completed crime, but the courts do not tend to punish that severely
Inchoate
What is the exception to the rule that attempt can possibly carry the same possible sentence as the completed offence?
The life sentence for attempted murder is discretionary, whereas for murder it is mandatory
Defences
Regarding intoxication, what does the law draw a line between?
Voluntary and involuntary intoxication
Defences
What have the courts held when a defendant becomes intoxicated through no fault of their own?
Is involuntary intoxication available where the defendant underestimates the strength of their own drink?
They may not be able to form the mental state required for the offence
No
Defences
When will involuntary intoxication not be available, and what facts will be a tip off to this?
Not available where the intent was not formed by the intoxicated state, but rather their desires and tendencies toward the behaviour
Defences
When considering voluntary intoxication, what are the two things the court will consider?
- Whether the drug was dangerous or non-dangerous,
- And, if dangerous, whether the offence was basic intent or specific intent
Defences
Will voluntary intoxication by a (1) non-dangerous substance and (2) dangerous substance negate mens rea?
- Yes, subject to the proviso that intoxicated intent is still intent
- Only if the offence is one of specific intent
Defences
In what specific intent situation will a voluntarily intoxicated person still be guilty?
Where they become intoxicated only to gain the courage to commit the offence
Defences
Why is intoxication not a defence to strict liability offences?
Because strict liability offences have no mens rea requirement
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?
Protect:
1. Self
2. Another, or
3. Property
or
- Prevent crime, or
- Effect lawful arrest
Defences
To rely on self-defence, what must the defendant subjectively believe?
That force is immediately required
Defences
To rely on self-defence, what must be true of the force used?
It must be objectively proportionate based on the facts that the defendant subjectively believes them to be
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?
The householder may use any force as long as it is not grossly or unreasonably disproportionate
Defences
In determining what is grossly or unreasonably disproportionate, what will the court consider?
Decisions that were made in the heat of the moment
Defences
In addition to being in their dwelling, what are the two other criteria the defendant must satisfy to rely on the householder exception?
Defendant must:
1. Not be a trespasser, and
2. Believe that the victim is a trespasser
