Chapter 1 Flashcards
Caution
you do not have to say anything. but it may harm your defense if you do not mention, when questioned something you later rely on in court. anything you do say may be given as evidence, do you understand?`
when to give the caution
- suspected of committing an offence
- identifies themselves as a suspect
- arrested
- during an interview
when to give the caution in an interveiw
- before they are asked questions
- returning from a break
- before they are informed the case is referred to DSG
common law
part of English law derived from custom and judicial precedent rather than statutes.
statute law
a written law passed by a legislative body
criminal law
a system of law concerned with the punishment of offenders
civil law
the system of law concerned with private relations between members of community rather than criminal, military or religious affairs.
case law
the law as established by the outcome of former cases
where do people go if they believe their human rights have been violated and cannot claim through national legal system?
european court of human rights, i.e strasbourg court.
what does the rule of law mean?
the restriction of the arbitrary exercise of power by subordinating it to well defined and established laws.
what is the appeal system?
- CO’s summary dealing
- summary appeal court
- supreme court
- ECHR
what’s the difference between what the defence can appeal against and what the prosecution can?
Defence can appeal against sentence and conviction
prosecution can only appeal against the sentence.
trial on indictment
- a formal statement of accusation
- serious offences
summary trial
- without Jury or board
- less serious service offences
- CO can apply for higher authority for direction if needed
definition of crime?
an action or omission which constitutes an offence that is punishable by law
what is actus reus?
- “The guilty act”
- act of commision
- act of omission
Act of commision
doing something that the law forbids
Act of omission
failure to do something that the law requires you to do.
Mens Rea
the guilty state of mind. i.e criminal intent
2 constituent parts - voluntas and foresight
what is voluntas?
part of mens rea to satisfy it must show; -voluntary act -not under duress -had conscious control
what is forsight?
showing that there is thought in thier conduct.
shown through inent and recklessness
what is intent?
deliberate objective to commit the crime
what is the aid to establish intent?
M-motive O- opportunity P-preparation S- subsequent conduct sct 8 criminal justice act 1967 mus be kept in mind
malice
the desire to harm someone, ill will
recklessness
conscious taking of an unjustified risk.
absolute offence
does not have to require the mens rea for the offence to have been committed. i.e drink driving, speeding.
when are you guilty of conspiracy?
as soon as you agree to commit an offence regradless of intent.
what is a principal offender?
the person who carried out the main part of a criminal act.
secondary offender
someone who aids, abets, councils or procures the offence. s8 A&A 1861
s8 accessories & abettors act 1861
provides authority for anyone who aids, abets, councels or procures to be tried and punished as a principle offender.
s41 armed forces act 2006
same as s8 but for anyone subjec to service law.
exemptions: what is the minimum age to be able to commit a crime.
10 years old.
under this age = curfew or safety order
exemptions: insanity
someone who is insane from birth can not commit a crime.
they must prove insanity.
exemptions: corporations
not everyone in the corporation may be involved in the crime.
each member may have their own liability, in which they can be charged.
exemptions: foreign diplomats
immune from juristiction of british court
extends to family of thier househould
only during their duty.
exemptions: sovereign
no court has the power to try the sovereign
general defence :involuntary intoxication
consuming alcohol or drugs against their will.
general defence: voluntary toxication
not usually a defence but eg in theft - so affected they were unable to form intent.
general defence: self defence
if the person is threatened or attacked, they may use necessary force in order to defend themselves. Only if force is reasonable
general defence: use of force in prevention of crime
if reasonable force is used in order to place someone in arrest, you are justified in your actions
general defence: mistake
makes an honest mistake leading to an offence.
general defence: duress by threats
must be threats of physical violence. so grave that any other person in their position would do the same.
general defence: duress by circumstance
acting to prevent death of themselves/others
e.g person drives dangerously to avoid death/ serious injury.
general defence: necessity
commiting a crime to prevent a more serious crime.
e.g breaking a window to stop a fire.
general defence: insanity
didnt know what they were doing, or they did but didnt know it was wrong.
general defence: automatism
an involuntary act
an act commited whilst a person was concussed/sleep walking may be excused from liability.
assisting offender
anyone who impedes apprehension or prosecution. i.e prevents them getting caught.
what are the exemptions
FIICS F-foreign diplomats I-infants and young children I- insane persons C-corporations S-sovereign
what are the general defences
AIMISDUN A-automatism I-insanity M-mistake I-involuntary intoxication S-self defence D-duress U-use of force in prev. of crime N- necessity
recklessness examples
taking unjustified risk- RV Cunningham 1857 - gas meter
disregard for a known unacceptable risk - RV G&R 2003 - co op arson, newspaper
law reports
report of court results
what are the 3 stages of statute law
whittehall
westminster
post legislative
s1 criminal attemts acts 1981
if you prepare to break the law you are guilty of attempting to commit the offence.
human rights act 1988
allows you to defend your human rights in court
1st principle of rules of evidence
anything said must be proved with evidence
2nd principle of ROE
evidence must be
relevant - prove/ disprove a fact
admissible - relevant and allowed by the judge
3rd principle of ROE
accused persons must be treated fairly throughout
testimonial evidence
verbal or written statement of a witness under oath
documentary evidence
production of written material for inspection by the court. primary & secondary
primary evidence
original artifact
best evidence
secondary evidence
copy or oral account.
when can secondary evidence be used?
when the original is;
unnecessary
inexpendent (impracticable to produce original)
impossible (og is lost or destroyed)
real evidence
the production of all other forms of physical evidence. but must have other evidence to connect to fact.
direct evidence
something physically or mentally experienced by the person who relates it. does not resort to assumption or inference.
indirect (circumstantial) evidence
evidence that tends to establish a conclusion by inference. Could be disproved.
primary/ best evidence
an original document is better than a copy. a description from a witness is better than someone who heard what happened.
presumptions
a conclusion which shall be drawn from particular facts. they are irreputable or reputable .
rebuttable presumptions
an assumption that can be disproved due to other evidence.
irrebuttable presumption
a presumption/ assumption that cannot be overturned by evidence.
inference
conclusion reached by the jury on the basis of evidence and reasoning.
judicial notice
facts that cant be disproved such as measurement of weight or height.
burden of proof
persuasive burden and evidential burden.
persuasive burden
innocent until proven guilty
evidential burden
responsibility to prove a piece of evidence is fact
fact
something that is known to have happened or can be proved.
facts in issue
the things that must be proved:
the identity of accused
whether they committed the offence
can defence disprove a guilty plea.
facts which supply motive
circumstantial evidence
reason why they would have committed the crime. determines presence or absence of mens rea.
facts which show preparation
indicates presence of mens rea.
facts which form part of the same transaction
different pieces of evidence that lead to the same conclusion.
subsequent conduct and acts done in consequence
hiding evidence to make you less likely of a suspect
facts in issue must:
be presented as accurately as possible in order for full understanding of the debate
inadmissible facts
evidence that is obtained through illegal processes
witness evidence
hearsay
confession
dying declarations
statements made in the course of duty or business
statements made about mental or bodily feeling
hearsay
the report of another persons word by a witness.
inadmissible and can be challenged
when is a confession inadmissible?
when under oppression
when unreliable due to circumstance
exceptions in using evidence of bad character
s101 criminal justice act 2003
competent witness
someone who can understand whats being asked of them and people can understand their answers
compellable witness
a competent witness can be made to attend court or give evidence.
when can partners be used as a competent and compellable witness
Police and Criminal Evidence act 1984
when they are separated
if both charged, only when one pleads guilty.
corroboration
evidence which confirms a statement by backing it up. i.e multiple statements about the same offence.
source of service law
armed forces act 2006,11 and 16.
MSL
provost officer
an officer who is a service policeman
persons subject to service law (PSSL)
s.367 AFA 06
civillians subject to service discipline (CSSD)
s.370 AFA 06
dying declaration
will be accepted as evidence as long as the person knew that they were dying .
statements made in course of duty
things said or done whilst on duty linking to the offence
