Crim Law Flashcards

Question

A girl picks up a gun and points it at a boy’s head. The girl and the boy know that the gun is not loaded. Which one of the following statements best describes the legal position?

Answer 1

The girl has no criminal liability as has not committed either an assault or a battery The girl has not threatened unlawful violence on the boy nor touched him without consent, so does not fulfil the definitions of assault or battery.

Answer 2

The injury need not be serious or permanent in nature, but it must be more than ‘transient or trifling’. The defendant causes actual bodily harm where they: * give the victim a split lip; * stab the victim’s arm so that the injury requires three stitches; * cause significant bruising to the victim’s face; * kick the victim’s leg causing swelling to the knee; * cut a substantial piece of the victim’s hair; or * cause a temporary loss of consciousness; but not where the victim only suffers: * a very small bruise; * a minor scratch; or * a red mark on the skin, from a slap, which quickly fades. The question of whether harm could include psychiatric injury was considered in the combined appeals of Ireland and Burstow . The judges confirmed that it could, with the severity of the psychological harm determining the statutory assault for which the defendant is liable. On a practical point, medical evidence will be required by the prosecution to establish a more serious assault and, in this context, it would almost certainly be from a psychiatrist.

Answer 3

Grievous bodily harm is defined in the case of DPP v Smith [1961] AC 290 as ‘really serious harm’. The judges were of the view that the term should be given its ordinary and natural meaning. This is a question of fact for the jury, which considers the effect of the injuries on the particular victim, taking account of their age and health; thus, it will be whatever the magistrates or the jury regards as serious enough. For example, grievous bodily harm would include: * a fractured skull * severe internal injuries * broken limbs * disfigurement caused by acid being thrown on the victim * really serious psychiatric injury.

Answer 4

Actus reus: * Appropriation (s 3 Theft Act 1968) * Property (s 4 Theft Act 1968) * Belonging to another (s 5 Theft Act 1968) Mens rea: * Dishonestly (s 2 Theft Act 1968) * With the intention to permanently deprive (s 6 Theft Act 1968)

Answer 5

‘Any assumption by a person of the rights of an owner amounts to an appropriation …’

Answer 6

In R v Gomez the majority in the House of Lords decided that a defendant can appropriate property even with the consent of the owner. ‘When theft is alleged and that which is alleged to be stolen passes to the defendant with the consent of the owner, but that consent has been obtained by a false representation, has, (a) an appropriation within the meaning of section 1(1) of the Theft Act 1968 taken place, or, (b) must such a passing of property necessarily involve an element of adverse [interference] with or usurpation of some right of the owner?’

Answer 7

Yes, person could be guilty of stealing a valid inter vivos gift

Answer 8

In such circumstances, when the defendant does form the necessary mens rea later it will then be necessary to apply the Theft Act 1968, s 3(1), which provides for a later assumption of the owner’s rights to amount to an appropriation: ‘Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.’

Answer 9

The Theft Act 1968, s 3(2) exempts a defendant from liability for theft where the defendant purchases goods in good faith and for value, then later discovers that the seller had no title to the property, but decides to keep it.

Answer 10

‘Property’ includes money and all other property, real or personal, including things in action and other intangible property. Generally, all property may be stolen, although there are certain exceptions in relation to land (s 4(2)), things growing wild (s 4(3)), and wild creatures(s 4(4)).

Answer 11

A In general land cannot be stolen. However, a person can be guilty of theft if, for example: (a) By a trustee in breach of trust (b) By a person who is not in possession of the land if they appropriate anything forming part of the land either by severing it or after it has been severed (c) By a tenant who takes something fixed to the land that they are not supposed to take. * s 4(2)(a)- D is authorised to sell land and sells more than they are meant to; * s 4(2)(b)- D is a trespasser or invited guest and removes a fence or a lavender plant; * s 4(2)(c)- D is a tenant and removes or sells without removing, a fixed greenhouse.

Answer 12

Mushrooms; * Flowers; * Fruit; and/ or * Foliage.

Answer 13

D can however be guilty of theft if: * The purpose of picking from the wild plant is: - A reward; - To sell; or - For another commercial purpose. * D uproots or cuts parts of the wild plant. * D picks cultivated plants.

Answer 14

D will not be guilty of the theft of: * Untamed animals; and/ or * Animals not ordinarily kept in captivity.

Answer 15

D can be guilty of theft of: * Tamed animals (for example, pets such as a cat or dog); * Animals kept in captivity (for example, in a zoo); and/ or * Animals in the course of being reduced into possession (for example, have been trapped).

Answer 16

A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it

Answer 17

Section 8(1) TA 1968 defines robbery as follows: "A person is guilty of robbery if the person steals, and immediately before or at the time of doing so, and in order to do so, they use force on any person or puts or seeks to put any person in fear of being then and there subjected to force."

Answer 18

Aggravated burglary is defined at section 10 TA 1968 Act as follows: “A person is guilty of aggravated burglary if they commit any burglary and at the time has with them any firearm or imitation firearm, any weapon of offence, or any explosive.

Answer 19

A What property can be stolen? * Money- notes, coins including other currencies * Real property- land in certain circumstances discussed already * Personal property, for example a coat, a ring, a car, water, gas * Intangible property such as things in action (a right to sue/ recover)- company shares, trademarks, patents, copyright, a debt, a credit in a bank account, forged cheques, cheques drawn on accounts in credit or those drawn on accounts within the agreed overdraft limit (as the bank is obligated to honour the cheque) * Unlawful or illegal items such as Class A drugs (Smith, Plummer and Haines [2011] EWCA Crim 66)

Answer 20

Wild plants and animals- except in certain circumstances discussed already * Electricity (Low v Blease [1975] Crim LR 513) * Corpses and body parts except those which have been taken into another’s possession or control such as: * Corpses in hospitals * Blood given to a blood bank * Corpses or body parts which have ‘acquired different attributes’ for scientific or teaching purposes (Kelly and Lindsay [1999] QB 621) * Confidential information does not fall within the definition of intangible property (Oxford v Moss (1978) 68 Cr App R 183) * Services such as a train journey * Cheques drawn on accounts over the agreed overdraft limit (as the bank is not obligated to honour the cheque)

Answer 21

‘Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest …’

Answer 22

Property can cease to belong to another if it has been abandoned. However, the courts do not readily find that property has been abandoned. householders do not abandon goods that are put in their domestic waste. The householder intends the goods to be collected by the local authority, so a refuse collector could be guilty of theft if appropriating goods from a bin with the relevant mens rea. Property is not abandoned just because the owner has stopped looking for it. Smith, Hogan and Ormerod’s Criminal Law notes that a husband who has lost his wedding ring and has long since given up looking for it, will not have abandoned it.

Answer 23

t will depend on whether the owner wants the property or wants it to go to another party, or whether the owner does not mind what happens to it.

Answer 24

No, The courts have found that property can belong to persons who have possession or control, not just of the specified property, but over the land upon which it was found. This can be so even if the owner of the land is unaware of its existence.

Answer 25

Yes, v Turner (No 2) [1971] 1 WLR 901 FACTS: The defendant took his car to a local garage. He later contacted the mechanic to check if the car was ready and was told that it was. The defendant took the car using his spare keys without paying the bill. He was convicted of theft and appealed. HELD: The Court of Appeal held that the mechanic was in possession and control of the car and, therefore, the car did ‘belong to another

Answer 26

The general civil rule is that title in property passes at the time that the parties intend it to pass. The Theft Act 1968, section 5(3) can be used to cover cases where property is handed over for a particular purpose, and the title in that property passes to the accused before D has formed a dishonest intention to use it for an unauthorised purpose. The Theft Act 1968, s 5(3) provides: ‘Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or proceeds shall be regarded (as against him) as belonging to the other.’

Answer 27

As with s 5(3), this provision only requires the obligation, whether that is the case is a matter of law. Under the law of restitution, when someone is aware they have acquired property by a mistake they are usually under a legal obligation to restore it. ‘Where a person gets property by another’s mistake, and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof, then to the extent of that obligation the property or proceeds shall be regarded (as against him) as belonging to the person entitled to restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds.’

Answer 28

s 2(1)(a)- D has a right in law to deprive the other of the property; s 2(1)(b)- D would have the other’s consent if the other person knew; or s 2(1)(c)- the person to whom the property belongs cannot be discovered by taking reasonable steps.

Answer 29

A No, As long as it is genuinely held D will not be dishonest.

Answer 30

(i) What was the defendant’s knowledge and belief as to the facts? (ii) Given that knowledge and those beliefs, was the defendant dishonest by the standards of ordinary decent people?

Answer 31

The Theft Act 1968, s 2(2) provides that a person can appropriate property dishonestly, despite being willing to pay for the property. This allows people to be convicted of theft when they take property that the owner does not wish to sell, intending to pay for that property.

Answer 32

No, dishonest intent must be formed at a time when the goods belong to another. A person cannot be convicted of theft if D only forms the dishonest intent after ownership of the property has passed to D. An example can be found in Edwards v Ddin [1976] 1 WLR 942. The general civil rule is that title in property passes at the time at which the parties intend it to pass.

Answer 33

A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.’

Answer 34

(1) The dictionary definition of ‘to dispose of’ - The defendant attempting to sell the owner their own property - The defendant using the owner’s property for bargaining (ransom cases) - Rendering the property useless. (2) Intending to treat it in a manner which risks its loss. (3) More than ‘dealing with’ is required.

Answer 35

(1) The dictionary definition of ‘to dispose of’- ‘to deal with definitely: to get rid of; to get done with, finish. To make over by way of sale or bargain, sell’, R v Cahill. Examples include: - The defendant attempting to sell the owner their own property, R v Scott - The defendant using the owner’s property for bargaining (ransom cases), R v Raphael. - Rendering the property useless, DPP v J. (2) Intending to treat it in a manner which risks its loss, R v Fernandes. (3) More than ‘dealing with’ is required, R v Vinall. (4) Borrowing or lending for a period and in circumstances making it equivalent to an outright taking or disposal, s 6(1). Was the intention to return it minus all its goodness, virtue and practical value? (R v Lloyd) (5) Theft Act 1968, section s 6(2)- a person who parts with property under a condition as to its return, which they may not be able to perform.

Answer 36

(a) A shopper switching a price label on a piece of meat – R v Morris [1984] AC 320. (b) Property passing with the consent of the owner – DPP v Gomez [1993] AC 442 (where a shop manager handed over goods on receipt of a fraudulent cheque). (c) The receipt of a gift – R v Hinks [2000] UKHL 53.

Answer 37

R v Atakpu [1994] QB 69 confirms that the defendant can only commit theft of the property once.

Answer 38

(a) Mushrooms, flowers, fruit or foliage growing wild on land A person who picks these items is innocent of theft provided this was not done for reward, sale or other commercial purposes. Thus, if a person picks a bunch of buttercups growing by the roadside, the flowers will not be ‘property’ under s 1 of the TA 1968 unless they intend to sell them. (b) Wild creatures Although wild creatures are excluded as property, there are exceptions. If a wild animal is tamed or ordinarily kept in captivity, for example a lion in a zoo, it may be stolen. Similarly, a wild creature that has been reduced into possession may be stolen; this would apply if the owner of land had snared a wild rabbit and someone else then took it. electricity and confidential information.

Answer 39

Destroy or damage Property Belonging to another Without lawful excuse Intention or recklessness as to the damage or destruction of property belonging to another

Answer 40

‘[Criminal damage includes] not only permanent or temporary physical harm but also permanent or temporary impairment of value or usefulness.’ Whether criminal damage has occurred is a matter of fact and degree but, usually, if expense is incurred in rectifying the consequences of the defendant’s act, this will be sufficient. An example would be: * drawing on a pavement using soluble chalks because the local authority would have to pay the clean- up costs – Hardman v Chief Constable of Avon and Somerset Constabulary [1986] Crim LR 330; but not * spitting on a police officer’s raincoat because this could simply be wiped off to restore the jacket to its previous condition – A (a juvenile) v R [1978] Crim LR 689. (The lack of any attempt to do so led to a small stain.)

Answer 41

‘In this Act “property” means property of a tangible nature, whether real or personal, including money and- (a) including wild creatures which have been tamed or are ordinarily kept in captivity, and any other wild creatures or their carcasses if, but only if, they have been reduced into possession which has not been lost or abandoned or are in the course of being reduced into possession; but (b) not including mushrooms growing wild on any land or flowers, fruit or foliage of a plant growing wild on any land.

Answer 42

‘Property shall be treated for the purposes of this Act as belonging to any person— (a) having the custody or control of it; (b) having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest); or (c) having a charge on it.’

Answer 43

The House of Lords, stated that to convict a person of reckless criminal damage the prosecution must prove that: a) at the time of committing the actus reus, the accused was subjectively aware of a risk; and b) in the circumstances known to the accused, it was objectively unreasonable for the accused to take that risk.

Answer 44

Arson is criminal damage by fire, however slight. Basic arson is charged under s 1(1) ands 1(3) CDA 1971. Below you can see the additions to the actus reus and mens rea: Actus reus * Destroy or damage by fire * Property * Belonging to another * Without lawful excuse Mens rea Intention or recklessness as to the destruction or damage of property belonging to another by fire.

Answer 45

Any general defence- where relevant, can apply to any offence of criminal damage/ arson under the CDA 1971 (s 5(5)); or Section 5(2) CDA 1971 lawful excuse defences- where relevant, can apply to basic criminal damage or basic arson (but not the aggravated form of these offences which are covered in a separate element). There are two lawful excuse defences in section 5(2) CDA 1971: * section 5(2)(a): operates where the defendant believes that the owner would have consented to the damage; and * section 5(2)(b): operates where the defendant acts to protect their or another’s property.

Answer 46

No, only necessary for it to be honestly held. This includes when D is intoxicated.

Answer 47

however powerful, genuine and honestly held, that God had given consent was not a lawful excuse under the domestic law of England.

Answer 48

a) R v Baker & Wilkins - The defendant must act to protect property. b) Section 5(2)(b)(i)- The defendant must believe that the property was in immediate need of protection (subjective test, see s 5(3)). c) Section 5(2)(b)(ii)- The defendant must believe that the means of protection adopted are reasonable (subjective test, see s 5(3)). d) R v Hunt- The damage caused by the defendant must be (objectively) capable of protecting the property.

Answer 49

Basic criminal damage and basic arson

Answer 50

Actus reus * Destroy or damage (by fire) * Property- s 10(1) Mens rea * Intention or recklessness as to the destruction or damage of property (by fire). * Intention or recklessness as to the endangerment of life by the damage or destruction (by fire).

Answer 51

Danger to life must arise from the damaged property, not the means of damaging it. If the damage is caused by fire, the risk to life will always be from the damaged property, R v Steer.

Answer 52

s 5(2)(a) – Honest belief in the owner’s consent – subjective s 5(2)(b) – Protection of property * Was D’s (real) purpose the protection of property? – objective * If yes, did D honestly believe: – the property was in immediate need of protection; and – the means adopted were reasonable? – subjective

Answer 53

The actus reus- that the defendant unlawfully killed another human being under the Queen’s peace; and · The mens rea- that the defendant committed the actus reus with malice aforethought, meaning intention to kill or intention to cause grievous bodily harm; and · No valid defence- such as self-defence.

Answer 54

Voluntary manslaughter On the face of it, the homeowner has the actus reus and mens rea of murder. As the homeowner suffers from paranoia and post traumatic stress disorder, this suggests he may be able to rely on the partial defence of diminished responsibility. Self-defence is unlikely to be available in this scenario as the homeowner has acted with grossly disproportionate force.

Answer 55

Killing enemy soldiers in battle; * Advancement of justice- an example of this is the lawful application of the death penalty. Although we no longer have the death penalty in this country there are occasions when person could be tried in this country for a killing which occurred in a country which does have the death penalty; * Self-defence- killing will be lawful where the force used was reasonable and necessary to prevent crime or protect self, others or property.

Answer 56

The child was not a live person when stabbed and therefore this could not be murder.

Answer 57

Diminished responsibility and loss of control

Answer 58

The burden falls upon the defence to prove on the balance of probabilities that the defendant was acting under diminished responsibility

Answer 59

D must have an abnormality of mental functioning (s 2(1)), meaning ‘state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal’, R v Byrne. * The abnormality of mental functioning must: * Arise from a recognised medical condition (s 2(1)(a))which can be diagnosed or not at the time of the killing. D must not be acting out of hatred, jealousy or bad temper. * Have substantially impaired (something greater than ‘more than merely trivial’, R v Golds) the defendant’s ability (s 2(1)(b)) to understand the nature of D’s conduct, form a rational judgment and/ or exercise self-control, s 2(1A). * Provide an explanation for D’s conduct (s 2(1)(c)), even if it is not the only cause, s 2(1B) and Dietschmann. * Diminished responsibility is not available for attempted murder, R v Campbell.

Answer 60

Sentencing discretion

Answer 61

For all the elements

Answer 62

There are three key requirements of the loss of control defence: * D must have lost self-control; * due to the fear and/ or anger qualifying trigger; and * a person of the defendant’s sex and age, with a normal degree of tolerance and self- restraint and in the circumstances of the defendant, might have reacted in the same or in a similar way as the defendant did.

Answer 63

defendants must be unable to restrain themselves. A mere loss of temper would not be enough. This need not be sudden. The defence will be lost should it be established that the defendant was acting out of a ‘considered desire for revenge’,

Answer 64

Fear Anger

Answer 65

things said and/ or done; that constitute circumstances of an extremely grave nature; and that caused D to have a justifiable sense of being seriously wronged.

Answer 66

D cannot rely on the anger trigger if: * D incited it as an excuse to use violence, sections 55(6)(b); or * The thing said/done constituted sexual infidelity- section 55(6)(c)

Answer 67

‘a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.’

Answer 68

The defence of loss of control cannot be used: * In an act of ‘considered desire for revenge’- section 54(4) CJA 2009. * As an excuse to use violence- sections 55(6)(a) and (b). It is not enough that the defendant ‘started it’. * If the thing said/done constituted sexual infidelity- section 55(6)(c). However, it is likely that in most cases where sexual infidelity has caused the defendant to lose their self-control, there will be other factors which could make up a qualifying trigger. It will then be possible to include sexual infidelity within the argument that a qualifying trigger exists, to ensure that the jury has the ‘whole story’. * For attempted murder,see R v Campbell and Smith, Hogan and Ormerod’s, Criminal Law.

Answer 69

Voluntary intoxication is not, on its own, capable of being relied upon to found the defence of diminished responsibility, Dowds. If the defendant has an abnormality of mental functioning (AMF) and is voluntarily intoxicated, Can only be used if D has alcohol dependency syndrome

Answer 70

Did D lose self-control? Did D act due to the fear or anger qualifying trigger? D’s drug or alcohol addition can be taken into account in assessing the magnitude of the qualifying anger trigger if D was taunted about the addiction. Normal person test- an intoxicated person is not precluded from using the defence. If D is addicted to drugs or alcohol this will be a characteristic given to the normal person but the normal person will still have normal levels of tolerance and self-restraint and be sober, Asmelash.

Answer 71

The anger trigger and the normal person test

Answer 72

he court stated that to be guilty of the offence the prosecution must prove that: (1) the defendants intentionally (voluntarily) did an act; (2) the act was unlawful; (3) the unlawful act was dangerous; and (4) the unlawful act caused the death of the victim.

Answer 73

There are three aspects to the defendant’s act being unlawful. It must be: * a criminal act; * an intrinsically unlawful act; and * an act rather than an omission.

Answer 74

(4) The unlawful act caused the death of the victim- the act must have both factually and legally caused the death of the victim. If D: * directly administers a drug to V, D causes V’s death as consent by the V is no defence- Cato. * merely supplies V with the drugs, or assists V, D does not cause V’s death, so long as V is a fully informed and responsible adult who freely and voluntarily self-administers, Kennedy.

Answer 75

Sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm, albeit not serious harm

Answer 76

The basic requirements for gross negligence manslaughter as laid down in Adomako are as follows: a) the existence of a duty of care; b) breach of that duty; c) that the breach causes death; d) that there was a risk of death; and e) that the breach of duty was so bad as to amount to ‘gross negligence’.

Answer 77

The existence of a duty of care- everyone has a general duty to take care to avoid injury by a positive act to their neighbour. Liability can arise for an omission in circumstances where the defendant is under a specific duty to act.

Answer 78

Was there an obvious and serious risk not merely of injury or even serious injury, but of death?

Answer 79

The three situations where the law recognises that a person who has killed another with the necessary mens rea for murder should be treated differently are: (a) diminished responsibility; (b) loss of control; and (c) suicide pact

Answer 80

(a) an abnormality of mental functioning; which (b) arose from a recognised medical condition; and (c) substantially impaired the defendant’s ability to understand the nature of their conduct, and/ or form a rational judgment and/ or exercise self- control; and (d) provides an explanation for the defendant’s act or omission in doing the killing.

Answer 81

they must also demonstrate that this impaired their ability to do one of the three things set out in s 2(1A) of the Homicide Act 1957, specifically: (a) to understand the nature of their conduct; and/ or (b) form a rational judgment; and/ or (c) exercise self- control.

Answer 82

(a) the defendant arms themselves with a weapon; (b) there is evidence of planning; or (c) there is a significant delay between the provoking words or conduct and the killing.

Answer 83

* Sexual infidelity cannot be relied upon on its own as a qualifying trigger, but its existence does not prevent reliance on the defence where there are other qualifying triggers. * Where other factors suggest a qualifying trigger, sexual infidelity may also be taken into account in assessing whether things done or said amounted to circumstances of an extremely grave character and gave the defendant a justifiable sense of being seriously wronged. * Sexual infidelity can be taken into account in the third component of the defence in examining whether a person of the defendant’s sex and age, with a normal degree of tolerance and self- restraint and in the circumstances of the defendant, might have reacted in the same or in a similar way.

Answer 84

all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm … albeit not serious harm. In determining whether the reasonable person would have recognised a risk of some harm, they are deemed to have the knowledge the defendant had, or should have had, at the time of the offence.

Answer 85

A defendant will only be liable for gross negligence manslaughter if a duty exists. Determining this issue is a matter of both law and fact. * Where there is a clear duty, as between a medical practitioner and a patient, or a statutory duty, the judge can direct the jury that a duty of care exists. * Where the existence of a duty is not clear, the judge must decide whether there is any evidence that is capable of establishing one. If not, the offence falls at the first hurdle. * If there is such evidence, the jury will determine whether a duty of care is present in the scenario before it.

Answer 86

fraud by false representation, section 2; * fraud by failure to disclose, section 3; and * fraud by abuse of position, section 4.

Answer 87

Actus reus- false representation * Express or implied representation * Representation as to fact, law or state of mind * Representation must be untrue or misleading A false representation can arise in certain circumstances of overcharging (Silverman, Jones) and representations include those made to a machine (s 2(5)). Mens rea- * Dishonesty- use the test from Ivey v Genting Casinos * Mens rea for the false statement * Intention to make a gain or cause a loss- see s 5

Answer 88

what the defendant says- in R v King [1979] Crim LR 122 a second-hand car dealer who stated that the mileage reading on a particular car ‘may not be correct’ impliedly represented that he was not certain the reading was wrong when in fact he knew it was wrong as he had altered it; or the defendant’s conduct- in DPP v Ray [1974] AC 370 the court held that the respondent made a continuing implied representation when entering a restaurant, ordering and eating a meal that he had the means and the intention of paying for it before he left. Pure silence, without an accompanying action cannot amount to a representation, R v Twaite.

Answer 89

Actus reus- * Existence of a legal duty to disclose e.g. from statute, a transaction of the utmost good faith, contained in the express or implied terms of a contract, arising from a custom in a particular trade or market or arising from a fiduciary relationship. * Failure to disclose information to another person- a matter of fact. Mens rea- * Dishonesty - use the test from Ivey v Genting Casinos (i) What was the defendant’s knowledge and belief as to the facts? (ii) Given that knowledge and those beliefs, was the defendant dishonest by the standards of ordinary decent people? * Intention to make a gain or cause a loss- see s 5.

Answer 90

A duty within a transaction of the utmost good faith

Answer 91

Yes the mens rea does not require an actual gain or loss just an intention to make a gain, cause a loss or expose someone to a risk of loss.

Answer 92

Actus reus * Occupy a position- which requires D to look after V’s financial wellbeing. Determined on a case-by-case basis. Can be a professional, fiduciary or long-term business relationship or even within the family or voluntary work. * Abuse that position – use it incorrectly or put it to improper use, R v Pennock and Pennock Mens rea * Dishonesty - use the test from Ivey v Genting Casinos: (i) What was the defendant’s knowledge and belief as to the facts? (ii) Given that knowledge and those beliefs, was the defendant dishonest by the standards of ordinary decent people? * Intention to make a gain or cause a loss- see s 5

Answer 93

The judge and the jury have a role in this The jury will decide on the facts whether the necessary relationship exists for D to have occupied a position in which they are expected to safeguard or not act against the financial interests of another person. However, before the jury decide this, the judge will consider whether the particular facts are capable of giving rise to D occupying a position and may give specific directions to the jury on this point.

Answer 94

Voluntary work

Answer 95

xamples of where there is a legal duty to disclose would include those derived from: * statute (such as the provisions governing company prospectuses or the requirement to notify a change in circumstances in relation to a welfare benefits claim); * the fact that the transaction is one of utmost good faith (for example, contracts of insurance); * the express or implied terms of the contract; * the custom of a particular trade or market; and * the existence of a fiduciary relationship between the parties (such as agent and principal).

Answer 96

he FA 2006 does not define the word ‘position’, but suggested examples are between: * trustee and beneficiary; * director and company; * professional person and client; * agent and principal; * employee and employer.

Answer 97

The actus reus elements of an offence are all those that do not relate to the state of mind of the defendant.

Answer 98

Mens rea is the technical term for the mental state required for a particular offence. If the prosecution cannot achieve this, the accused will not be convicted.

Answer 99

A way to negate the mens rea of an offence; or An influencing factor on another legal principle/ defence.

Answer 100

In any crime where the intoxication is caused by drink or drugs taken involuntarily, i.e. ‘spiking’ or ‘lacing’ someone’s drink or food with a drug or alcohol. In any crime where the intoxication is caused by drugs taken voluntarily, but in bona fide pursuance of medical treatment. In any crime where the intoxication is caused by non-dangerous drugs taken voluntarily (dangerous drugs are those which are illegal or alcohol) In crimes where a specific intent is required (generally where the offence cannot be committed recklessly).

Answer 101

Is the defendant voluntarily intoxicated or involuntarily intoxicated? Is the intoxicant a dangerous alcohol/drug or a non-dangerous drug? Is it a crime of basic intent or specific intent?

Answer 102

A The House of Lords held that voluntary intoxication could be a defence to a charge of specific intent, where the defendant’s intoxication negated the mens rea required for the offence charged. However, voluntary intoxication would not be a defence to a charge of basic intent.

Answer 103

Intoxication working to negate the mens rea The court will ask did the defendant form the mens rea even though intoxicated? * If yes- a drunken intent is still intent, D will be criminally liable, see Kingston. Another example would be if D takes drugs or alcohol in order to commit a specific intent crime (sometimes referred to as ‘Dutch courage’). * If no- D lacks the mens rea and will be acquitted e.g. D was so intoxicated they did not know what they were doing. The court will ask did the defendant form the mens rea even though intoxicated, in cases of: * Involuntary intoxication (such as being drugged without consent); * Voluntary intoxication by non-dangerous drugs (e.g. Hardie, the D who took Valium to calm his nerves); or * Voluntary intoxication and D has committed a specific intent crime (e.g. murder). Where D is voluntary intoxicated by dangerous drugs/ alcohol and commits a less serious crime of basic intent (where recklessness is a form of mens rea available), the defendant will be deemed reckless if they would have foresaw the risk of harm if sober, Coley, McGhee and

Answer 104

A Intoxication and other defences * Self-defence- D cannot rely on a drunken mistake as to the need to use self-defence. * Loss of control and diminished responsibility- can still be pleaded if D was intoxicated but it does impact various aspects of the legal analysis. * Consent- if the jury are satisfied that V consented to the accidental infliction of injury or D (even wrongly) believed that V consented (due to their intoxication), D may have a defence, Richardson & Irwin. * Statutory defences- where these allow for an honest belief, D will be able to use the defence even if their belief is due to voluntary intoxication, see Jaggard v Dickinson on the lawful excuse defence for criminal damage.

Answer 105

Crimes of both specific and basic intent involving dangerous or non-dangerous substances

Answer 106

When a drunken mistake caused the defendant to use self-defence

Answer 107

Would the defendant have formed the mens rea if sober?

Answer 108

If a valid and complete defence exists, D will not be criminally liable.

Answer 109

Sometimes For example, for property offences there is a statutory defence for a defendant who believes the owner consents. This is found in the Criminal Damage Act 1971, s 5(2)(a) and the Theft Act 1968, s 2(1)(b).

Answer 110

There are two elements to consent, whether the: - victim consented; or - defendant honestly believed the victim consented. It is for the prosecution to prove both that the victim did not consent and that the defendant did not believe in the victim’s consent. So if the defendant wrongly believed the victim consented, the defence could be available, R v Richardson and Irwin. Equally if the victim consented, even if the defendant did not know this, the defence could be available. Whether the defence of consent is available will depend on the level of harm inflicted on the victim and the circumstance in which the harm was inflicted.

Answer 111

The general rule is that consent is only available as a defence to assault and battery. Consent is available as a defence, even where actual bodily harm or worse is caused provided the defendant: * intended only to commit a battery with the consent of the victim; and * did not see the risk of inflicting actual bodily harm. If however, the defendant intended to cause actual bodily harm, then consent is not available as a defence, even if the victim consented (unless the conduct falls into one of the exceptions which follow).

Answer 112

s the offence more than assault/ battery? · No- Consent is available if: V consented or D honestly believed that V was consenting. · Yes- Did D intend to cause ABH or above? o Yes- Consent is no available unless any of the exceptions apply. o No & did not see risk- Consent is available, Meachen. o No & reckless- No guidance from court but if prohibited harm then check to see if one of the exceptions apply.

Answer 113

the victim can consent to offences against the person of ABH and above if the situation falls under one of the public interest exceptions such as: Medical treatment; Sport; Horseplay; Tattooing, body piercing and personal adornment; and Sexual gratification/ accidental infliction of harm.

Answer 114

Consent can be given for surgery and other medical treatment that causes harm. Consent can be given to a high risk of death.

Answer 115

Consent to incidental injury during sport - but if the offence against the person is caused “off the ball” there is no defence of consent

Answer 116

R v Jones (1986) 83 Cr App R 375 Some boys at a youth club tossed two other boys into the air, resulting in one suffering a ruptured spleen and the other a broken arm. The Court of Appeal held that they ought to have been allowed to raise the issue of consent to injuries sustained through ‘rough and undisciplined’ horseplay, for the jury to then consider.

Answer 117

R v Wilson [1997] QB 47 (CA) FACTS: The defendant used a hot knife to brand his initials onto the buttocks of his wife, at her request. He argued consent to a charge under the OAPA 1861 s 47, and was successful. DOES NOT INCLUDE BODY MODIFICATION in particular the removal of an ear, the removal of a nipple and the division of a tongue into a fork like a reptile, in the category of tattooing and personal adornment.

Answer 118

R v Dica [2004] QB 1257 The Court of Appeal held that if the complainant consents to the risk of contracting HIV through having sexual intercourse, the defendant does have a defence to a charge under the OAPA 1861, s 20. R v Brown The consensual sadomasochistic activity that occurred in R v Brown such as burning their genitals or beatings for sexual pleasure was not deemed to be a suitable exception. The courts considered the nature of the act rather than the circumstance in which it occurred. R v Emmett (1999) The Times, 15 October FACTS: The parties were involved in consensual activities with the defendant tying a plastic bag over his fiancée’s head in order to increase her sexual pleasure. He also, with her consent, poured lighter fuel on her breasts and set fire to it. HELD: The court saw this as violent conduct which moved beyond those acts which can be consented to.

Answer 119

A parent has a defence of reasonable chastisement in applying force to a child. In considering whether or not a parent could use this defence, the jury must look at the nature and context of the parent’s behaviour, its duration, the physical and mental consequences for the child, and the reasons why the punishment was inflicted.

Answer 120

here a person acts to: * protect themselves; * protect someone else; * protect property; * prevent a crime; or * assist in the arrest of an offender.

Answer 121

The CJIA 2008, s 76(2) identifies the defences to which the section applies: (a) the common law defence of self-defence; and (aa) the common law defence of defence of property; and (5) the defence provided by section 3(1) of the Criminal Law Act 1967 … (use of force in prevention of crime or making arrest). The common law defence envisaged two possible reasons for acting: * In the protection of life and limb of yourself or another: see e.g. R v Gladstone Williams(1984) 78 Cr App R 276 (CA). * In the protection of property: R v Hussey (1925) 18 Cr App R 160 (CA).

Answer 122

self defence can only be used to protect yourself or another, or property from imminent attack: i.e. from a threat of physical force, not a threat to one’s peace of mind

Answer 123

A defendant is entitled to rely on any of these defences if: * the defendant honestly believed that the use of force was necessary; and * the level of force the defendant used in response was objectively reasonable in the circumstances as the defendant believed them to be. These requirements are know as the trigger and response.

Answer 124

It is a complete defence, so D will either be acquitted by self-defence or the defence will fail

Answer 125

A defendant is to be judged on the facts as they subjectively believed them to be, whether the belief is reasonable or not. For instance, if a defendant mistakenly believed that they were being attacked with a deadly weapon and used such force as was reasonable to repel an attack with a deadly weapon, then D has a defence; it is immaterial that they were mistaken and they were in fact being attacked with something less deadly.

Answer 126

If the mistaken belief is due to the voluntary intoxication of the defendant, then the defendant will not be able to rely on their mistake

Answer 127

A defendant may make the first blow and still rely on the defence.

Answer 128

this defence was capable of extending to the use of force against an innocent third party to prevent a crime being committed by someone else. The court felt that facts capable of giving rise to such a defence would only rarely be encountered and might include: * a police constable bundling a passerby out of the way to get at a person the constable believed was about to shoot a firearm or detonate an explosive device; or * a person seeking to give car keys to another to enable them to drive and X, believing that other to be unfit to drive through drink, knocked the keys out of the first person’s hands and retained them.

Answer 129

non-‘householder’ cases; and * ‘householder’ cases

Answer 130

considering the force used, the jury must decide if the force used was objectively reasonable, given the facts as the defendant subjectively believed them to be, CJIA 2008, s 76(3), s76(4) ands76(6).

Answer 131

Was the level of force used objectively reasonable in the circumstances as D subjectively believed them to be?

Answer 132

A householder case is one where D: * Acts to protect themselves or another. * Uses force while in or partly in a building, or part of a building, that is a dwelling (including vehicles, vessels and buildings that are dwellings and places of work if connected by an internal access route); * Is not a trespasser at the time the force is used; and * Believed the victim to be in, or entering, the building or part as a trespasser.

Answer 133

Was the force grossly disproportionate in the circumstances as D believed them to be? If it was, there can be no defence. If not, was the level of force reasonable? The jury should take into account that the level of force should not be weighed to a nicety and that if the defendant believed in a moment of unexpected anguish that they were using reasonable force, that was very good evidence that the force was reasonable. R v Ray (Steven) listed circumstances which the jury should consider in determining whether the degree of force used by a householder was reasonable e.g. the shock of coming upon an intruder, the time of day, the vulnerability of the occupants, particularly children etc.

Answer 134

The general defence of intoxication can work by negating the mens rea for the offence or is a relevant consideration to another legal principle or another defence.

Answer 135

Self-defence requires the ‘trigger’ that the use of force is necessary and a ‘response’ that the level of force is reasonable. What is deemed reasonable will depend on whether it is a householder or non-householder case.

Answer 136

Consent is available for offences of assault or battery and may be available for offences of ABH or higher depending on the circumstances and/or whether any exceptions apply.

Answer 137

s the law that people impliedly consent to the inevitable physical contact that occurs as part of everyday life.

Answer 138

* Consent is only valid if it is freely given by a fully informed and competent adult. * Consent is not valid if it is obtained by fraud as to the identity of the defendant or fraud as to the nature and quality of the act.

Answer 139

A ‘householder’ case is defined in the statute as one in which the defendant uses force in self- defence or in defence of another while in or partly in: * a building or part of a building that is a dwelling; * forces accommodation; or * a vehicle or vessel that is a dwelling.

Answer 140

The principal (P) is the person who, with appropriate mens rea, commits the actus reus of the offence. It is always possible to have more than one principal. There are five ways in which someone can be liable as an accessory. (1) To aid (2) To abet (3) To counsel (4) To procure (5) To be a party to a joint enterprise.

Answer 141

n certain circumstances, a person may be guilty of an offence as a principal, even if another person actually performs the actus reus. This occurs where the person acting can be described as an ‘innocent agent’.

Answer 142

A woman gave a child a dose of poison and the child gave it to the victim. The woman was the principal offender. An employer told his employees to make accounting transactions which (unknown to those employees) resulted in fraudulent transfers. The employer was the principal and the employees were innocent agents.

Answer 143

(1) To aid (2) To abet (3) To counsel (4) To procure (5) To be a party to a joint enterprise. With the exception of procuring, these actions can be summarised as ‘assisting or encouraging the commission of the principal’s offence’.

Answer 144

Actus reus Any of the following five ways: * To aid P in committing the offence * To abet P in committing the offence * To counsel P in committing the offence * To procure P to commit the offence * To be a party to a joint enterprise with P regarding one offence and during the enterprise P commits a second, different offence Mens rea * An intention to assist or encourage the principal’s conduct. * If the crime requires a mens rea, an intention that the principal will do the actus reus with that mens rea. (Procuring would appear to be an exception to this rule.) * Knowledge of existing facts or circumstances necessary for the offence to be criminal.

Answer 145

something must be done and communicated to the principal in the case of pre-panned violence (but not necessarily spontaneous violence) or a law enforcement agency.

Answer 146

Conviction of a secondary party and acquittal of the principal is possible and could occur when the principal has been acquitted due to insufficient evidence or the principal could not be found. As long as it is clear that someone has committed the offence to which D was a secondary party, D can be convicted.

Answer 147

It is not an offence to attempt to aid, abet, counsel or procure an offence. It is an offence to aid, abet, counsel or procure an attempt to commit an offence.

Answer 148

giving help, support or assistance before or at the time of the offence e.g. giving information, supplying tools or driving P

Answer 149

incite, instigate or encourage P at the time of the offence which must be communicated to P. Mere presence at the scene of the crime is not necessarily enough. If D has a right or duty to control the actions of another and refrains from doing so, this can be abetting e.g. parent, employer.

Answer 150

giving P advice or encouragement before the offence is committed. There must be contact and consensus between P and D along with a connection between the advice and the crime. Causation isn’t needed.

Answer 151

to produce by endeavour. There must be a causal link between D’s act and P’s commission of the offence

Answer 152

e.g. P and D commit burglary as principals, P murders the homeowner, D becomes an accessory to P’s murder.

Answer 153

D must intend: * to do the act which aids or encourages; and * it to aid or encourage the commission of the crime (oblique intent is sufficient, conditional intent may be sufficient).

Answer 154

Conditional intention is enough here. D can be liable for greater harm than intended for crimes where the MR does not correspond with the AR e.g. D might intend P do serious harm but if P does serious harm and V dies, D will be liable as an accessory to P’s murder.

Answer 155

e.g. if the offence requires lack of consent, D must know that the victim does not consent. A defendant who deliberately shuts their eyes to the obvious has knowledge. D need not know the exact details of the crime which will be committed e.g. V’s identity, the day of the crime or which of a number of crimes D knows P could commit.

Answer 156

Where two or more people perform the actus reus and the mens rea of an offence together.

Answer 157

For abetting and counselling

Answer 158

1)he principal offender will escape liability as they satisfy the court, they have a defence. 2)accomplice may be convicted is where the principal cannot be found.

Answer 159

An innocent agent is someone who commits the actus reus of a crime but who is not guilty of the offence because they lack the mens rea.

Answer 160

Where the defendant has a change of heart before the offence takes place, they may do so by communicating that withdrawal. However, this must be timely and unequivocal. Where the defendant decides to withdraw after the offence has begun, they must do more than simply communicate their intention to do so. Words alone may suffice where the withdrawal takes place before the offence, unless physical assistance has also been given.

Answer 161

If the principal goes beyond the scope of the plan, the accomplice must intend to assist or encourage the principal in the commission of the ‘new’ offence. Foresight of what the principal might do is evidence of such intent but no more.

Answer 162

An inchoate offence occurs when the defendant takes some steps towards committing a crime but the full offence is not committed.

Answer 163

· Actus reus (AR)- An act which is more than merely preparatory to the commission of an offence; · Mens rea (MR)- An intention to commit the full offence e.g. for attempted murder, the defendant must have an intention to kill; and · Absence of a valid defence- A defendant cannot be convicted for a non-existent crime, Taaffe.

Answer 164

‘An attempt begins when the merely preparatory acts come to an end and the defendant embarks on the crime proper or the actual commission of the offence.’

Answer 165

Being outside a post office with a threatening note and fake gun (not attempted robbery, Campbell (1990) 93 Cr App R 350) Being in school toilets with a knife and rope but no schoolchildren (not attempted false imprisonment, Geddes [1996] Crim LR 894)

Answer 166

Getting into a car with a loaded gun and pointing it at the victim (attempted murder, Jones (1990) 91 Cr App R 351) Looking at a padlock with cutting equipment in the hedge (attempted burglary, Tosti [1997] Crim LR 746)

Answer 167

No, proof of intention is required

Answer 168

Yes, if D saw the result as a virtual certainty

Answer 169

Yes if D stabs V, but V is already dead, then D will be liable for attempted murder.

Answer 170

Intention to kill

Answer 171

Impossible in fact

Answer 172

Impossibility through inadequacy

Answer 173

Impossibility through non-existent crimes (acts as a defence) Impossibility in fact Impossibility through inadequacy