Crim Law Flashcards
What is the hierarchy of non-fatal offences?
Wounding or grievous bodily harm with intent (s 18 Offences Against the Person Act ‘OAPA’ 1861)- the most serious offence but committed less frequently (indictable);
Wounding or grievous bodily harm (s 20 OAPA 1861) (either-way);
Assault occasioning actual bodily harm (s 47 OAPA 1861) (either-way);
Battery (summary); and
Assault (summary)- the least serious offence but along with battery committed most frequently.
What is the AR and MR for assault?
· Actus reus (AR)- causing the victim to apprehend immediate and unlawful personal violence; and
· Mens rea (MR)- intentionally or recklessly causing the victim to apprehend immediate and unlawful personal violence; and
· Absence of a valid defence- self-defence, intoxication or consent.
What does apprehension mean for AR of assault?
Apprehension means to make the victim expect or anticipate but not necessarily fear immediate and unlawful personal violence
Words alone and silence is enough
If the victim is caused to apprehend such a threat, it is irrelevant that the defendant does not in fact have the means to carry out that threat.
Words can however negate an assault
What does immediate mean for AR of assault?
Does not mean instantaneous but some time not excluding the immediate future (R v Constanza) or imminent (R v Ireland).
What does unlawful mean for AR of assault?
Not done in self-defence or with the victim’s consent.
What does personal violence mean for AR of assault?
All the victim has to anticipate is an unwanted touch.
for an assault, the victim must apprehend physical violence.
What is the AR and MR for Assault occasioning actual bodily harm (s 47)?
Actus reus
* Assault- meaning an assault or battery
* Occasioning- normal principles of causation apply
* Actual bodily harm
Mens rea
* Mens rea for the assault or the battery. Intent or recklessness as to:
- causing the victim to apprehend immediate and unlawful personal violence; or
- applying unlawful force upon another.
What is the AR and MR of battery?
· Actus reus (AR)- application of unlawful force; and
· Mens rea (MR)- intentionally or recklessly applies unlawful force; and
· Absence of a valid defence- self-defence, intoxication or consent
What is application for battery?
Application- Battery can be inflicted:
* Directly (Collins v Wilcock).
* Indirectly (R v Martin, DPP v K). e.g. D digging a pit which V then falls into as being an indirect battery.
* By an omission (Santana Bermudez).
What does force mean for battery?
Means the merest of touch (Collins v Wilcock) and doesn’t have to be rude, hostile or aggressive (Faulkner v Talbot).
* Touching someone’s clothes is enough (R v Thomas).
* Where the battery results in harm which is more than trivial, the defendant will be liable for the more serious offence under the OAPA 1861, s 47.
What are examples of battery?
Mere touch
* An unwanted kiss
* A slap
* Scratches/ grazes, minor bruising or superficial cuts
What does occasioning mean for s 47?
the assault or battery must result in actual bodily harm being caused to the victim. Normal principles of causation apply.
This offence can also be committed through an omission
What could constitute as ABH?
A
Temporary loss of sensory function (e.g. sight or hearing)
Temporary loss of consciousness
Extensive bruising
Cutting someone’s hair without their consent
Minor fractures
Psychiatric injury that is more than trivial- beyond mere fear, distress or panic
What is the AR and MR for s20?
Actus reus
* Wound; or
* Infliction of grievous bodily harm.
Mens rea
D must intend or be reckless as to the causing of some harm.
What constitutes as a wound?
There must be a break in the continuity of both layers of the skin. Both the dermis and epidermis must be broken.
What does infliction mean?
The same as cause
What does GBH mean?
Serious harm
How is GBH assessed?
Psychiatric injury may amount to GBH if sufficiently serious, but its cause and effect will need to be proved by expert evidence.
The jury should consider the effect of the injuries on the victim, taking into account the victim’s age and health. The jury can also look at the totality of the injuries
What are the AR and MR of s18?
Actus reus
* Wound; or
* Causing grievous bodily harm.
Mens rea
D must intend to cause grievous bodily harm or intent to resist or prevent the lawful apprehension or detention of any person,
coupled with the intention or recklessness as to causing some bodily harm.
Intention can be direct (aim, purpose, R v Moloney) or oblique, R v Woollin.
When can juries find s18 by oblique intent?
Juries are not entitled to find s 18 by oblique intent unless they feel sure:
* serious injury was a virtual certainty as a result of the defendant’s action (objective element); and
* the defendant appreciated that (subjective element).
What are examples of GBH?
Permanent loss of sensory function
Permanent disability
Broken bones
Fractured skull
Substantial blood loss
* Wound- breaking both layers of skin, the dermis and epidermis
What is the mens rea of assault occasioning actual bodily harm?
The mens rea for the assault or battery
What is the mens rea of section 20 Offences Against the Person Act 1861, malicious wounding or inflicting grievous bodily harm?
Intention or recklessness as to causing some harm
What is the mens rea of section 18 Offences Against the Person Act 1861, malicious wounding or causing grievous bodily harm with intent?
Intention to cause grievous bodily harm
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?
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.
What is actual bodily harm?
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.
What is grievous bodily harm?
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.
What elements must be proven for theft?
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)
What is appropriation?
‘Any assumption by a person of the rights of an owner amounts to an appropriation …’
Can appropriation happen with the consent of the owner?
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?’
Can someone steal a gift?
Yes, person could be guilty of stealing a valid inter vivos gift
Can appropriation happen later?
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.’
Is an innocent purchaser guilty if theft?
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.
What amounts as property for theft?
‘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)).
When is the exception for land seen as theft?
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.
What wild plants fall under the exception to property for theft?
Mushrooms;
* Flowers;
* Fruit; and/ or
* Foliage.
How can D be guilty of theft with regards to plants?
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.
What falls under the wild animals exception for property for theft?
D will not be guilty of the theft of:
* Untamed animals; and/ or
* Animals not ordinarily kept in captivity.
What animals could D be guilty of theft for?
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).
o s. 1 Theft Act 1968
A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it
o s. 8 Theft Act 1968
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.”
o s. 9 Theft Act 1968
Burglary.
o s. 10 Theft Act 1968
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.
What property can be stolen?
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)
What property cannot be stolen?
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)
What is the definition of belonging to another?
‘Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest …’
What about abandoned property?
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.
How do you assess whether property has been abandoned?
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.
Does possession and control only apply to the specified property?
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.
Can you steal your own property?
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
When is property that is given to D still considered as belonging to the owner?
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.’
What happens if someone acquires someone else’s property by mistake?
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.’
In what 3 situations is appropriation of property not dishonest?
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.
Does dishonesty need to be reasonably held?
A
No, As long as it is genuinely held D will not be dishonest.
What is the test for dishonesty?
(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?
If you are willing to pay for the property does this stop it being theft?
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.
Can there be dishonesty after the ownership is passed?
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.
What does intention to permanently deprive mean?
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.’
What does the court classify as under this requirement: Intention to treat the thing as their own to dispose of regardless of the other’s rights?
(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.
Section 6(1) states an intention to treat the thing as their own to dispose of regardless of the others rights, will amount to an intention to permanently deprive which can mean:
(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.
What can appropriation include?
(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.
Can D commit multiple thefts of the same property?
R v Atakpu [1994] QB 69 confirms that the
defendant can only commit theft of the property once.
What can someone cannot steal?
(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.
What is required for basic crim damage?
Destroy or damage
Property
Belonging to another
Without lawful excuse
Intention or recklessness as to the damage or destruction of property belonging to another
What constitutes as destroy or damage?
‘[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.)
What constitutes as property for criminal damage?
‘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.
What constitutes as belonging to another?
‘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.’
What constitutes as recklessness for crime damage?
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.
What is required for arson?
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.
What constitutes as a lawful excuse?
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.
Does D’s belief for lawful excuse need to be reasonable?
No, only necessary for it to be honestly held.
This includes when D is intoxicated.
Can God consent to the damage?
however powerful, genuine and honestly held, that God had given consent was not a lawful excuse under the domestic law of England.
What are the four requirements for the section 5(2)(b) defence ?
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.
To which offences do the lawful excuse defences within the Criminal Damage Act 1971 section 5(2) potentially apply?
Basic criminal damage and basic arson
What is required for aggravated crim damage or arson?
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).
Does life need to be endangered for aggravated crim damage or arson?
No
How should danger to life arise foraggravated crim damage or arson?
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.
Do the lawful excuse defences in section 5(2) apply to aggravated criminal damage or aggravated arson?
No
Lawful excuse?
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
AR and MR for murder?
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.
A solider lawfully kills an enemy in battle. What criminal liability is the solider likely to have, if any?
None
A disgruntled ex-employee feels he is owed money from his former employer and wants to make her pay. The ex-employee goes to his former place of employment and stabs the manager with his knife, killing her.
What criminal liability is the ex-employee likely to have, if any?
Murder
A homeowner who had been previously burgled, suffers from paranoia and post traumatic stress disorder (which will be recognised medical conditions for the purposes of diminished responsibility). The homeowner, who now believes that everyone that comes onto his land is an intruder, shoots a delivery person in the back of the head as they are walking back to their van having dropped off a package. The delivery person dies.
Self-defence is only available if the homeowner uses force that is not grossly disproportionate.
What criminal liability is the homeowner likely to have, if any?
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.
