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SQE2 collated > Crime > Flashcards

Crime Flashcards

1
Q

What are the 3 steps to id crim liability?

A
  1. ID Defdt, act / omission and offence
  2. Define AR / MR
  3. Explain law and apply law to case
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2
Q

What 3 elements make up Crim Liability?

A

AR + MR + Absence of a valid defence

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3
Q

What are 4 types of Actus reus? (NOT MENS REA!!)

A
  1. Conduct
  2. Result
  3. Circumstances
  4. Omissions
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4
Q

What do conduct crimes require?

A

Action

e.g. it is only required that fraud is committed, not that anyone is deceived

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5
Q

What do result crimes require?

A

A consequence

e.g. a murder requires that a human being has been unlawfully killed

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6
Q

What do circumstance crimes require?

A

Some particular circ.

e.g. for theft, the item must belong to another

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7
Q

Can omission lead to liability?

A

Generally no, but there are exceptions

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8
Q

What 2 causation tests apply to the AR and where does the BoP sit?

A

Factual
Legal

The prosecution

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9
Q

Which types of crimes require causation to be proven?

A

Result crimes

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10
Q

What is the case authority for factual causation and what is it?

A

But For

R v White (1910)

If you eliminate D actions, does the event occur anyway?

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11
Q

What is the legal authority for Legal causation and what does it say?

A

D’s actions muct be substantial and operating cause (not necessarily the only cause, but not de minimis)
R v Hughes (2013)

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12
Q

What is the 5 step process for omission => crim liability?

A
  1. Crime can be committed by omission
  2. D had a legal duty to act
  3. Accused breached duty
  4. Breach caused AR and
  5. Accused had MR
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13
Q

In what 5 scenarios might Novus Actus Interveniens appear in crime?

A
  1. Medical Neg (VERY RARE)
  2. TP (Pagett - free deliberate and informed)
  3. Act of victim (“So daft…”)
  4. Thin skull
  5. Natural events (extraordinary)
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14
Q

In what 5 situations might a duty to act (for the purpose of omissions) be relevant?

A
  1. Statute
  2. Special relationship
  3. Vol assumption
  4. Dangerous sit
  5. Legal duty
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15
Q

What is Direct intent?

A

D intended the outcome

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16
Q

What is Indirect intent?

A

The outcome, if not specifically intended, was a virtual certainty

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17
Q

What does “Malicious” mean in the context of crime?

A

Intent or recklessness

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18
Q

What is the case authority for dishonesty?

A

Ivey v Genting (2017)

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19
Q

What is negligence as a standard?

A

Conduct falling below that of a reasonable person

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20
Q

How is Intent assessed?

(Obj / subj)

A

Subjectively

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21
Q

What are basic intent crimes?

A

Those which can be committed recklessly (i.e. not with specific intent)

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22
Q

What are specific intent crimes?

A

Those for which intent is required (i.e. recklessness will not suffice, e.g. Murder)

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23
Q

Is indirect intent common, and when it is relevant?

A

No
It is only relevant for crimes of specific intent
(If the crime can be committed with intent or recklessness, use R instead)

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24
Q

What is the defn of recklessness?

A

Person does not intend harm, but sees a risk of harm and does it anyway, unjustifiably

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25
Q

What do the courts consider about an action when assessing the acceptability of risk?

Not the risk!! The action!!

A

The utility of the action
e.g. Russian Roulette v heart surgery

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26
Q

AR and MR must coincide. What are 2 things used by the courts to assist when they might not be exactly concurrent?

A

Continuing Act (D has the MR at some point when conducting the AR)

One Transaction (A series of acts with the MR at some point)

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27
Q

What is transferred malice?

A

X shoots Y but hits Z
MR is transferred
AR and MR must be same though

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28
Q

What are 4 potential defences re crime?

A
  1. Intoxication
  2. Consent
  3. Self defence
  4. Mistake
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29
Q

Do strict (absolute) liability crimes require MR?

A

No
AR+Abs of a valid defence => strict liability

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30
Q

What are the 4 elements of the AR of Murder?

A
  • Unlawful
  • Killing
  • Human being
  • Kings peace
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31
Q

What are the 2 elements of the MR of murder?

A

Malice aforethought
Intent to:
* kill (malice)
* cause GBH - implied malice

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32
Q

An individual is found to have committed murder. What 2 defences are available to downgrade it to Vol MS?

A
  1. Diminished resp (NO OTHER OFFENCES)
  2. Loss of control
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33
Q

Who is the BoP on re Dim Resp and what is the std?

A

The Defence
B of P

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34
Q

What 3 things must the D prove re Dim Resp?

A
  1. Recog medical condition & associated abnormality
  2. Substantial impair to
    * u/stand conduct
    * form judgement &
    * exercise self control

3.which explains the acts / omissions re the killing

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35
Q

What are the 3 steps to a Loss of Control defence?

A
  1. Loss of self control DUE TO
  2. Fear / Anger (qualifying trigger) AND
  3. A normal person might have responded in the same way
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36
Q

Who does the BoP sit with re Loss of control (LoC)?

A

Once raised, BoP with Prosec to show it wasn’t a factor

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37
Q

What is the 3 step test for LoC?

A
  1. D acts / omissions were from a LoC
  2. LoC had qual trigger
  3. A person of D’s sex and age, with normal tolerance, MIGHT have acted the same
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38
Q

What are 2 qualifying triggers for LoC?

A

Fear (of serious violence - overlap with Self-D, but if force was unreasonable this is an alt defence)
Anger (grave things said and done - not infidelity)

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39
Q

What are 3 limits on LoC as a defence?

A
  1. Planning / revenge / considered
  2. D “starts it”
  3. Sexual infidelity
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40
Q

What happens re intoxication if D is G of Vol MS?

A

It can appear, but not as a defence on its own.
Can negate MR and
Can be influence of LoC / Dim Resp

Not also Abnormal mental functioning as a symptom of alcohol dependency

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41
Q

What offences does Involuntary Manslaughter include?

A

All non murder homicides

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42
Q

Is there an MR requirement for Invol MS?

A

No

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43
Q

What are the 2 categories of Invol MS?

A

Unlawful Act MS
Gross Neg MS

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44
Q

What is the 4 step test for Unlawful Act Invol MS (UAIMS)?

A
  1. The D did an act
  2. The act was unlawful
  3. The act was obj dangerous and likely to cause physical harm
  4. The act => death
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45
Q

What is the MR for UAIMS?

Is it necessary that the D intended Harm?

A

Intent to commit the act, not necessarily to cause harm

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46
Q

What is the 5 step assessment for Gross Neg MS?

A
  1. DoC
  2. Breach of DoC
  3. Breach = > Death
  4. Risk of death (clear and obvious)
  5. GN = SO Bad
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47
Q

What is the ascending list of non fatal assaults against the person?

A
  1. Assault (Common Law)
  2. Battery (Common Law)
  3. S47 Assault (OAPA 1861) - ABH
  4. S20 Assault (OAPA 1861) - GBH
  5. S18 Assault (OAPA 1861) - GBH with intent
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48
Q

What is the AR for Assault?

A

To cause the victim to apprehend immediate and unalwful personal violence

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49
Q

What is the MR for Assault?

A

A crime of basic intent so
Intent OR recklessness

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50
Q

What is the MR for Battery?

A

Reckless or intentional use of unlawful force on another person

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51
Q

What is the AR for Battery?

A

Application of unalwful personal violence

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52
Q

What are the potential sanctions for Battery?

A

6 Months
£5K fine

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53
Q

What is the AR for a S47 Assault?

A

Assault or Battery occasioning ABH (But For…)

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54
Q

What is the MR for a S47 Assault?

A

Intent / recklessness as to causing Assault / Battery

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55
Q

What 2 tests of causation must be passed?

A

Factual (R v White 1910) - But for…
Legal (Pagett / Hughes) - Subst and operating…

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56
Q

What is the potential sanction for a S47 Assault?

A

5 Years

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57
Q

What is the defn of ABH for the purposes of a S47 Assault and what is the case authority?

A

Any hurt or injury (harm) calculated to interfere with the health or comfort of victim
(Donovan 1934)

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58
Q

What is the AR of a S20 Assault?

A

Wound or inflict GBH

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59
Q

What is the MR of a S20 Assault?

A

Intent or recklessness to some harm being caused

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60
Q

What is the defn of a wound for the purposes of a S20 assault?

A

Breaking the skin
Grievous = really serious

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61
Q

In what 2 ways should a S20 assault be tested?

(Think causation)

A

Legally
Factually

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62
Q

Can GBH include psych harm?

A

If it is serious as assessed by an expert

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63
Q

What is the MR for a S18 assault?

A

A specific intent crime
Intent to cause GBH (serious harm)

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64
Q

What is the AR for a S18 assault?

NOT the MR!!

A

Wound or cause GBH

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65
Q

What is the sanction for a S18 assault?

A

Life

More typically 2 - 16 years

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66
Q

What legis covers Crim Damage?

A

Criminal Damage Act 1971 (CDA)

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67
Q

What is the defn of Crim Damage in the CDA 1971?

A

…wo lawful excuse damages or destroys property belonging to another with intent or recklessness…

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68
Q

What is the AR from Crim Damage?

A

Damage / Destroy

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69
Q

What is the MR for Crim Damage?

A

Intent / Recklessness

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70
Q

What must the Prosec prove re Crim Damage?

(Re assess of risk)

A

At the time of the AR the D was subj aware of the risk and, in the circs known to the D, it was unreasonable to take the risk

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71
Q

What is Basic Arson and which sections of CDA 1971 apply?

A

Crim Damage by fire
S1(1) and S1(3)

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72
Q

What are potential 2 defences of lawful excuse for Crim Damage, in which sections if the CDA 1971 are they held and what should the belief of the D be?

A
  1. Owner consent (5(2)a)
  2. To protect property of another (5(2)b)

Honestly held (i.e. not reasonable)

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73
Q

What are the 4 requirements for a 5(2)b defence re Crim Damage (to protect property)?

A
  1. Protection requirement was immediate
  2. Steps were reasonable
  3. Honestly held (not necessarily reasonable)
  4. Damage should be obj capable of protecting property
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74
Q

What are 2 general defences which might be available re Crim Damage?

A
  1. Self defence
  2. Duress
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75
Q

What is the defn of Aggrav Crim Damage from CDR 1971 and what section is it in?

A

1(2) (1(3) = Arson)
…w/o lawful excuse, destroys or damages any property belonging to self or another

1(2)(a) - Intend / reckless as to damage
2(2)(b) - Intend / reckless as to danger to life

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76
Q

What is the AR of Aggrav Crim Damage?

A

Destroy or damage property

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77
Q

What is the MR for Aggrav Crim Damage?

A

Intent
Recklessness

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78
Q

Do the Lawful Excuse (owner consent / to protect the property) apply to aggrav crim damage?

A

No
But self defence and Duress do

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79
Q

What is the defn of Theft and where is it held?

A

…dishonestly appropriates property belonging to another with the intent to permanently deprive

Theft Act 1968 s1(1)

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80
Q

What is the ACTUS R of theft?

A

Approp / Property / Another

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81
Q

What is the MR of theft?

Not intent / recklessness!!

A

Dishonest intent to perm deprive

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82
Q

What is relevant legislation for Theft?

A

Theft Act 1968

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83
Q

What 5 elements must the P prove to secure a theft conviciton?

A
  1. Appropriation
  2. Property
  3. Belonging to another
  4. Dishonestly
  5. Intent to perm deprive
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84
Q

What section of the Theft Act 1968 caters for property given to another for a particular purpose?

A

5(3)

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85
Q

What section of the Theft Act 1968 relates to property given by mistake?

A

5(4)

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86
Q

Who decides if a D has behaved Dishonestly for the purposes of the Theft Act 1968?

A

The jury

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87
Q

Re theft, in what 3 circumstances might the D be able to demonstrate they have not behaved dishonestly, what are the section references and does the belief have to be reasonable?

A

2(1)(a) - D has a right to the property
2(1)(b) - D would have consent
2(1)(c) - Person to whom it actually belongs cannot be found

No - just honestly held

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88
Q

Which section of the Theft Act covers a D who might initially obtain property honestly, but later knows it is stolen?

A

S(3)(1)

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89
Q

What is the 2 step test in Ivey v Genting (2017)?

A
  1. What was the D knowledge and beliefs as to the facts?
  2. Given the knowledge an dbeliefs, was the conduct of the D dishonest by the stds of reasonable people?
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90
Q

For the purposes of Theft, when must the dishonest intent be formed?

A

Before the property is appropriated

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91
Q

What part of the Theft Act 1968 covers absconding without paying?

A

S3

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92
Q

What sections of the Theft Act 1968 cover situations where someone decides to keep goods later?

A

3(1), 5(3), 5(4)

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93
Q

Can borrowing be theft?

A

Yes - if the things is returned “minus all its goodness, virtue and practical value”

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94
Q

What section of the Theft Act 1968 refers to defns of “Perm deprive”?

A

6

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95
Q

What does S8 of the Theft Act 168 define Robbery as?

A

Stealing, and immediately before or while doing so, and in order to do so, uses force, or the threat of immediate force

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96
Q

What is the sanction for a robbery conviction?

A

Life in prison

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97
Q

What is the AR of Robbery?

A

Theft plus
Force (actual or threatened or attempt to threaten)
On a person
Immediately before or at time of theft

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98
Q

What is the MR of robbery?

(Not intent / recklessness, but dishonest….)

A

MR of theft (Dishonest intent to perm deprive)

with added

Intent to use force to steal

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99
Q

What should you do BEFORE exploring Robbery?

A

Establish if there has been a theft. Theft of something is a pre-requisite to Robbery (i.e. Robbery is aggravated theft)

Theft is = appropriation of property belonging to another
Dishonestly and with intent to perm deprive

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100
Q

What are the 3 ways force can be used in Robbery?

A
  1. Force
  2. Threat of force
  3. Seeking to have the V fear force
    Immediately before or at time of theft

This is the aggravating element which elevates Theft to Robbery

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101
Q

For Robbery, does force have to be violence?

A

No

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102
Q

Does the victim have to be in fear of the force re Robbery?

A

No
(This makes sense - otherwise they could escape conviction if they encountered a brave victim)

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103
Q

Can the threat of force be against a TP re robbery?

A

Yes

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104
Q

What does R v Hale (1978) make plain re Robbery?

A

That there can be a continuance to the act - it does not simply end once the D has control of the goods - making their escape (and how they do that) can also be relevant in an assessment

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105
Q

What section of the Theft Act 1968 covers burglary?

A

s 9 (1) (a) and
9 (1) (b)

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106
Q

Who assesses “force” re Robbery?

A

By the jury

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107
Q

Can force be applied through property re robbery (e.g. on something the victim is holding)

A

Yes - IF the force on the property causes force on the person, e.g. snatching a handbag

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108
Q

What is a 9 (1) (a) offence under the TS 1968 and when is the offence committed?

A

Entering a building as a trespasser with intent to steal, inflict harm or do unlawful damage

On entering the building

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109
Q

What is a 9 (1) (b) offence under the TA 1968 and when is the offence committed?

A

Having entered a building as a trespasser steals or commits harm to a person

At the point of attempt or commission

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110
Q

What are the sanctions for burglary?

A

If the building is a dwelling, 14 years
For other buildings, 10 years

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111
Q

What is the AR of a 91a burglary?

A

Enters (any presence) a building (or part of a building - a structure of some permanence) as a trespasser

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112
Q

What is the MR of a 91a burglary?

A

Knowing / being reckless as to entry as a trespasser
Intending to steal or inflict GBH or damage at the point of entry

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113
Q

What then is a 91b burglary and what must the prosecution demonstrate?

A

D enters a building as a trespasser, knowing or being reckless as to trespass and:
* steals / attempts to steal or
* inflicts / attempts to inflict GBH (see then OAPA s20 & s18) - N.B - No MR is required - all that is necessary is that harm is inflicted

Damage is not relevant for 91b

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114
Q

What section of the Theft Act 1968 covers aggravated burglary, and what is a pre-requisite?

A

s10
Either a 91 a or a 91b offence

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115
Q

What makes a burglary aggravated?

A

Presence of:
1. firearm
2. weapon of offence
3. explosive

116
Q

What is the sanction for an aggravated burglary offence?

A

Life

117
Q

For aggravated burglary, when should the D have the weapon?

A

When they commit the offence

118
Q

The Theft Act 1968 defines weapons how for the purpose of aggravated burglary, and in which sections?

A

10(1)(a) = Firearm / mock firearm / explosive with them - NO MATTER if they intend to use it or not

10(1)(b) = Weapon of offence - an article made or adapted to incapacitate a person and intended by the person carrying it for that purpose

119
Q

What legislation covers Fraud?

A

Fraud Act 2006

120
Q

In what 3 ways can fraud (deception) be committed?

A
  • by false rep
  • failure to disclose
  • abuse of position
121
Q

What is the AR for fraud, and how is it defined in the FA 06?

A

False representation
“A person is in breach of this section if he -
a) dishonestly makes a false rep AND
b) by this intends to make a gain, or cause another to suffer loss”

122
Q

Does the D have to say something to make a false representation

A

No - it can be by conduct, but is cannot be by omission

123
Q

What legislation covers fraud?

A

Fraud Act 2006

124
Q

Where are Fraud cases heard?

A

Magistrates Court or Crown Ct (either way)

125
Q

What are the penalties with a fraud conviction?

(Not damages!!)

A

10 years’ or unlimited fine

126
Q

What are the 3 ways fraud can be committed?

(Inc false rep)

A

Making a false representation (2)
Failing to disclose info (3)
By abuse of position (4)

127
Q

Do you need to obtain anything to be guilty of fraud?

A

No

128
Q

How do you commit fraud by making a false representation?

A

By making a false representation and intending, by that misrep, to make a gain or cause a loss

129
Q

What is the AR for fraud by false rep?

A

Making a false rep (expressly or impliedly) as to fact, law or state of mind

130
Q

What is the MR of fraud by false rep?

Not intent or recklessness but …..

A

Knowledge of its falsehood
dishonestly
intending to cause gain or loss

131
Q

What is the defn of a false representation?

A

Untrue or misleading and the person making it knows it to be so

132
Q

How is the misrep usually made?

A

In words verbally or in writing

133
Q

Can fraudulent misreps be implied?

Remember bank cards!!

A

Yes - e.g. using someone else’s bank

134
Q

What is the MR for fraud by misrep?

What must the D know?

A

D must know that rep is false

135
Q

How is dishonesty usually assessed, by whom, and what can they consider if the answer is less than clear?

A

By the jury, using Ivey v Genting if necessary (having regard to the facts, what would honest, decent people think?)

136
Q

Does the fraudster actually have to be successful?

A

No

137
Q

When is fraudulent misrep deemed to have occurred?

A

As soon as the misrep is made

138
Q

What is fraud by failing to disclose?

A

Failing to disclose info they are legally obliged to (i.e. there is a legal duty) and
Intend to gain / cause loss by that step

139
Q

(Re fraud / tort) What are 5 occasions a D might have a legal obligation to disclose info?

A

Statute
Transaction of utmost good faith (e.g. insurance C)
Express / implied terms of a Contract
Custom and practice
Fiduciary relationship

140
Q

What is the AR of failing to disclose info re fraud?

A

Failing to disclose the info

141
Q

What is the MR of failing to disclose info re fraud?

A

Dishonesty (Ivey v Genting)
Intent to cause gain / loss

142
Q

What is fraud by abuse of position?

A

Be in a position of trust
abuse that trust
with intent to cause loss / gain

143
Q

What is the AR of fraud by abuse of position?

A

Be in a position of trust and
abuse it

144
Q

Can you commit fraud by abuse of position by omission?

A

Yes

145
Q

What is the MR for fraud by abuse of trust?

A

Dishonestly (Ivey v Genting)
To intend to make a gain / cause a loss

146
Q

What must the prosecution first prove in cases of fraud in the context of abuse of trust?

A

That the D was in a position of trust which brought with it obligations to the Claimant

147
Q

In court, who decides if there was a position of trust in fraud “abuse of trust” cases?

A

The judge will consider the facts and may direct the jury.
The jury will then decide on the facts if s relationship of trust existed.

148
Q

What is the test for a defence of self-defence and can the force have been applied to a TP?

A
  • DId D honestly believe the use of force was necessary? (Trigger - Subjective)
  • Was the level of force used objectively justificable, in the circs as ther D subj believed them at the time? (Response)

Yes

149
Q

When might self-defence not be applicable?

A

When the D is voluntarily intoxicated - R V Bird (SAS / Samurai)

i.e. if their mistaken belief in the threat is bc they are intoxicated

When there is a threat to “peace of mind”

150
Q

How is “reasonable force” determined in self defence, and what are these 2 elements known as?

A

What did the D honestly believe? (Trigger) - R v Gladstone Williams (Attacked someone she thought was attacking someone else) (Subj)

Given that belief (however reached, unless due to intox (in which case it can’t be relied on), e.g. PTSD), what would a reasonable person do, i.e. would the level of force be considered reasonabe by a reasonable person given the perceived threat, even if this is mistaken? (Response) (Obj)

151
Q

Can householders claim self-defence?

A

Yes - and they are allowed to exert more force, provided they don’t go completely OTT

152
Q

Will the fact decisions took place in the heat of the moment be considered?

A

Yes

“in the circs one did nt use jewellers’ scales to measure reaosnable force”

153
Q

What is “self defence”, what type of defence is it and what is the result if it is successfully pleaded?

A

Where a person acts to protect:
* themselves (R v Gladstone Williams (1984))
* someone else (“)
* property or (R v Hussey (1925))
* prevent a crime or
* assist with the arrest of an offender

Common Law
Acquittal

154
Q

Is self defence a complete defence?

A

Yes
All or nothing - the D will be acquitted or the defence will fail

155
Q

With whom does the burden of proof sit once self defence is raised as a defence?

A

The prosecution to DISprove it

156
Q

Is there a duty to retreat?

A

NO - but failing to take an opportunity to do so might be relevant

157
Q

Can a D who threw the first punch still rely on self defence?

A

Yes - if they were in fear of an imminent attack, i.e. there is no need to wait for the assailant to strike, when “warding off” an attack

158
Q

Can the assailant also rely on self-defence?

A

Yes - if the self defence by the initial victim is out of proportion

159
Q

What are 3 questions when considering intoxication as a defence?

A

Are the voluntarily or involuntarily intoxicated?
Is the drug dangerous?
Is it a crime of basic or specific intent?

160
Q

What are 6 crimes of specific intent?

A

Murder
S18 GBH with intent
Theft
Robbery
Burglary
Attempts

161
Q

What are crimes of basic intent, and what does this mean?

A

UAMS / GNMS
s20 ( malicious wounding / GBH) & s47 (ABH)
Battery
Assault
Basic and aggrav crim damage

They can be committed recklessly, and likely that intoxication won’t apply as a defence

162
Q

What are 2 key questions (1 re offence and 1 re D) when considering intoxication as a defence?

A

Is the offence one of specific intent?

Was the D still capable of forming the necessary MR?

“Drunken intent is still intent”

163
Q

What are 2 elements to consent as a defence (1 re offence and 1 re D) and with whom does the BOP sit?

A

Either
* the V consented, or
* the D believed they consented

The offence was one a V CAN consent to

The prosecution

164
Q

When is consent available as a defence re offences against the person?

A

Assault and Battery
and in limited circumstances under Meachen - no intent to cause ABH and risk not foreseen
Exceptions

165
Q

What are exceptions when consent may be available as a defence when ABH has been caused?

A

Medical treatment
Sport
Horseplay
Tatooing / piercing - but NOT body modification
Sexual gratification / accidental harm - No longer applies re Domestic Abuse Act 2021

166
Q

What is differenct about self-defence in a Householder scenario?

A

Force will not be unresonable if it was GROSSLY disproportionate

167
Q

What then is the 2 step test for self defence in householder cases?

A

What were the circumstances as the D honestly believed them to be?

Given that, was their action grossly disproportionate?
Y = Defence not available
N = Was the force reasonable then?

168
Q

In what 5 other defences might intoxication crop up as a factor in?

A

Self defence
Consent
Loss of control
Dim Resp
Stat defences

169
Q

What are the AR and MR of attempts?

A

AR = An act which is more than merely preparatory to the commission of the offence

MR = An intent to commit the full offence (e.g. attempted murder, intent to cause GBH is not sufficient, recklessness will not suffice for attempts)

170
Q

What is the relevant legislation for Attempts?

A

Criminal Attempts Act 1981

171
Q

Who assesses if something is “more than merely preparatory”?

A

The jury, as long as the judge is satisfied that the actions are capable of being more then preparatory)

“When the D embarks on the crime proper”

172
Q

When can intent be found?

A

When the jury is satisfied that the D foresaw the result as a virtual certainty

173
Q

What is conditional intent?

A

Where the commission of the crime is subject to certain pre conditions, e.g. lifting a bag but only stealing if there is anything of value. This is STILL intent

174
Q

In what ways can supporting individuals be involved in crimes?

A

Principal
Assistance
Encouragement
Procurement
Accessory
in Joint enterprise

175
Q

Who is the principal offender?

A

The one with the MR who commits the AR

176
Q

When might someone be an innocent agent?

A

If they don’t know what they are doing or have been deceived

177
Q

What legislation is applicable for accessories?

A

Accessories and Abettors Act 1861

178
Q

Under AAA 1861 how might accessories be involved?

A

Aid
Abet (at time of offence, and ppal must know)
Counsel (must be contact before offence)
Procure (must be a causal link)
Be a party to joint enterprise (JE)

179
Q

What is the AR for an accessory?

A

To aid, abet, counsel or procure for the primary offender

180
Q

What is the MR for an accessory, and when should it be evident?

A

Intent to assist
Intent that the ppal will do the AR with the relevant MR
Knowledge of facts necessary for the offence to be criminal

When they provide the assistance (not necessarily when the crime is committed)

181
Q

Can an accessory withdraw, and who makes an assessment if they have done so?

A

They can, but they must clearly communicate so

The jury

182
Q

When might the requirement on the accessory to communicate withdrawal be less onerous?

A

When there is spontaneous violence

183
Q

What is the relevant statute for considering arrest?

A

Police and Criminal Evidence Act 1984 (PACE)

184
Q

What does Code C of PACE refer to?

A

Code of Practice for Detention

185
Q

What does Code D of PACE refer to?

A

CoP for IDentification persons

186
Q

What does Code E of PACE refer to?

A

CoP re Audio REcordings - audio

187
Q

What does Code F of PACE refer to?

A

CoP re Visual Recordings
(You can see their Face)

188
Q

What are 3 classes of offence?

A

Summary only
Either way (or indictible)
Indictible only

189
Q

What are common law offences and what class are they all?

A

Those not created by statute
Indictible only

190
Q

How might one check an offence classification?

A

Consult a practitioner text
Look at the max sentence in the statute
* On summary only = a summary matter
* On indictement = indictement only
* On summary conviction AND on indictement = Ew

191
Q

Where are summary only cases heard and what are the 3 stages of the process??

A

Mag Ct
Plea / trial / sentence

192
Q

Where are indictible only cases heard and what are the 4 stages of the process?

A

Crown Ct
(Mag Ct - Admin only)
Plea (Cw Ct) / Trial / Sentence

193
Q

What is the process for EW offences?

A

Mag Ct => venue
Mag Ct can send to Cw Ct
D can elect to go to Cw Ct
Trial (Either)
Sentence (with Mag sending to Cw Ct if their sentencing powers are insufficient)

194
Q

What are Mag Ct sentencing limits?

A

Prison
* 6 Mth for summary offences
* 12 months for EW offences

Fines = unlimited

Costs

195
Q

What is the overriding objective of the Crim PR, 1.1?

A

That criminal cases be dealt with justly

196
Q

What does Crim PR 3 deal with?

A

Duties of the parties

197
Q

What are some standard criminal directions for both parties?

A
  • Any obj to a WS being read must be made within 5 business days of service of the WS
  • Points of law must be id’d in a skeleton argument at least 10 business days before trial
  • Both parties must have a cert of readiness 10 business days before trial
198
Q

What are standard criminal directions re D evidence?

A
  • D must serve a D statement (if there is one) within 10 business days of P complying with initial disclosure
  • If a W is not to appear, D must serve notice at least 10 business days before trial
199
Q

What are standard criminal directions re bad character / hearsay?

A
  • Not > 20 days after a not guilty plea, the P must serve notice of any intent to introduce bad character / hearsay evidence
  • Not > 10 business days after service of a notice to intro bad character of hearsay, D must indicate if the app is to be opposed
  • If D intends to rely on hearsay, it must give notice ASAP
  • If D wishes to use BC re a P witness, they must say so no > 10 business days after P disclosure
200
Q

What are 3 sanctions available to the Ct re evidence?

A

Refusal to admit evidence
Evidence may be ruled inadmissable
Court may draw adverse inference

201
Q

Name 5 Summary only offences

A
  • Shoplifting (Technically theft, and < £200 = summary, but D can elect to go to CC)
  • Assault
  • Battery
  • Simple criminal damage (£5000 or lessand that is NOT arson)
  • Attempt to commit simple crim damage @ £5000 or less
202
Q

Name 8 EW offences

A

Shoplifting (technically theft and < £200 = summary, but D can elect to go to CC)
Theft (s1 TA 1968)
Burglary (s9 a or b TA 1968)
Fraud (False rep / abuse of position / fail to disclose)
Assault occasioning ABH (s47 OAPA 1861)
Wounding or inflicting GBH (s20 OAPA 1861)
Simple crim damage <£5K
Simple arson

203
Q

Name 7 Indictement only offences

A

Robbery (s8 TA 1968)
Wounding or causing GBH with intent (s18 OAPA 1861)
Aggravated burglary (s10 TA 1968)
Aggravated arson
Agrav crim damage
Murder - Vol manslaughter can be an outcome
In vol manslaughter (unlawful act / GNIM)

Attempts of all of these are triable on IO

204
Q

How is the value of crim damage calculated, and what are the sanctions?

A

Crim damage value is counted by cost of repair or replacement, whichever is less
<£5K = 3mth / lvl 4 fine
>£5K = 12 mth / lvl 5 in Mag ct, 10 yrs Crown Ct
Where value is uncertain, case can be tried in Mag ct if D consents

205
Q

What is the 7 step procedure at a police station for a detainee?

A
  1. Custody officer (CO) authorises detention
  2. Detainee (Dee) informed of rights
  3. Dee non intimate samples taken
  4. Dee sees health professional
  5. Dee can rqst to see solicitor
  6. Dee may be interviewed
  7. Dee is released on bail / chgd and released on bail or chgd and placed on remand
206
Q

What is a Custody Officer responsible for and what 2 things must they be?

A
  1. Responsible for welfare during detention
  2. At least a Sergeant
  3. Unrelated to the investigation
207
Q

As well as welfare, what 4 things is the Custody Officer responsible for re detention being appropriate?

A

Authorising the detention having been given an explanation of why it has happened

Releasing the Dee if the reason to detain ceases to be relevant

Ensuring detention is in accordance with the Codes of Practice

Maintaining the custody record

208
Q

What 5 things is a CO responsible for re Dee welfare?

A
  1. Risk assessments for each Dee
  2. Making special arrangements
  3. Arranging interpreters
  4. Dealing with Dee property
  5. Contacting healthcare is necessary
209
Q

Can the solicitor have access to the Custody Record (CR) and, if so, is there anything else the police are obliged to provide?

A

Absolutely - as soon as they arrive and at any time after

Police should also advise of the nature of the offence and why the individual is a suspect

210
Q

What is the Review Officer (RO) resonsible for, what rank must they be and can the CO undertake the task (S40)?

A

Carry out reviews to ensure custody is still valid
Inspector
No

211
Q

On the review clock, when must the first and later reviews happen and what must the suspect be reminded of at each review?

A

Not more than 6 hours after detention was first authorised by the CO
Every 9 hours after than
Their right to legal advice (unless they are unfit to make representations or are asleep at the reiew time)

212
Q

What is the relevant time for the Detention Clock (as opposed to the review clock)?

A

Arrival at the police station

Initial custody expiry wo charge = +24 hours

213
Q

What does S42 of PACE allow re detention, and what are conditions?

A

Not available for summary only offences
An ext of 12 hours to 36
Must be granted BEFORE expiry of 24
Grounds must be explained to Dee and added to CR
Solicitor should be allowed to make representations
Must be
* at least Superintendent
* grounds that detention is necessary
* Indictible and
* Investigation ongoing

214
Q

Can detention wo charge be granted beyond 36 hours under s43 and what are its limits?

A

Not by the police - they must go to the Mg Ct (Warrant of further detention)
1st app = +36 (to 72)
2nd app = +24 (to 96)

Same criteria apply as to a 42 ext (grounds / Indict / investog ongoing)

215
Q

What are the 5 rights of a Dee in custody (and 2 others which may need to be considered)?

A

AT ANY STAGE:
* The right to consult privately with a solicitor
* The right to free legal advice (s58)
* The right to have someone informed of their arrest (s56) (and every time they are moved to a different station)
* The right to consult the COP (PACE 1984)
* (Also an appropriate adult / translator)

216
Q

Where should it be recorded the Dee has been advised of their rights, and what should be recorded at the same time?

A

The Custody record

Their response

217
Q

On what 4 occasions should a Dee be reminded of their rights?

A

An interview (or reconvened interview)
Provision of an intimate sample
An intimate drug search
An Id procedure

218
Q

Can the police delay access to a Solicitor?

A

Yes, but in very limited circumstances under s58.

Only up to 36 hours and the suspect must be informed

Police should be aware that this may lead to the restriction on drawing adverse inference at court

219
Q

What are the criteria for delaying access to a Solicitor under s58?

A

VERY RARE

Must be proportionate AND:

An I offence (Not necessarily IO))
Superintendent for Sol
Reasonable grounds to believe exercise of right this this solicitor will:
* Interfere / harm evidence
* Interfere / harm witnesses
* Alert other suspects
* Hinder recovery of evidence
Also if they suspect a NAMED solicitor will interfere

220
Q

What ID Procedures are available to the police?

A

VIPER - Video
Group
Parade
Confrontation

221
Q

What is required to authorise detention?

A

That it is necessary:
to preserve evidence or
obtain such evidence by questioning

222
Q

What are the criteria for delaying having someone informed of their arrest under s56 (which is easier than S58 re solicitor)?

A

Must be proportionate AND:

An I offence (Not necessarily IO))
Inspector
Reasonable grounds to believe exercise of right will:
* Interfere / harm evidence
* Interfere / harm witnesses
* Alert other suspects
* Hinder recovery of evidence

36 hours or only as long as required

223
Q

What are the requirements for VIPER id?

A

Moving images of suspect as well as:

  • at least 8 other people of similar age and appearance OR
  • if x2 suspects, at least 12 people
  • Sol sees in advance and can object
224
Q

What is true about requirements for witnesses in advance of an id?

A

Witnesses must not be able to:
* Communicate with each other about the case
* See any images to be shown
* Be reminded or given any indication of ID
* Overhear witnesses who have already seen material

225
Q

What are the requirements for id parade id?

A

A panel of at least +8 other people of similar age and appearance OR

Suspect chooses own place in line

226
Q

When is an id procedure definitely required?

A

When the suspect disputes the identification

227
Q

What is an effect of a breach of ID procedures?

A

The D can apply to have the outcomes excluded from trial (s78)

228
Q

Can adverse inference be drawn if a Dee refuses to engage in an interview / ID parade?

A

Yes, but a client cannot be convicted purely on adverse inference

229
Q

What is a defn of an interview and what are some conditions?

A

Defn: …the questioning of a person regarding their involvement, or suspected involvement, in a criminal offence
* Under caution
* Accurate record
* At a police station (unless delay would hinder an investigation
* Reminded of right to legal advice at start of each (re) convened interview
* After caution, but before interview, significant statements should be put to detainee

230
Q

In what 3 main ways can a Dee respond to police interview questions?

A

Answer all questions
Answer “No comment”
Provide a written statement

231
Q

What are inferences which can be drawn under Sections 36 & 37 Criminal Justice and Public Order Act 1994

A

36 - Failure to account for an object, substance or mark
37 - Failure to account for their presence at a particular place

At the time of their arrest

232
Q

What are conditions for adverse inference under 36 & 37?

A

The interviewing officer must ask specific questions

Then the ct can be afforded the opportunity to draw adverse inference

233
Q

In what 2 situations is adverse inference irrelevant?

A

The case never gets to trial
The client pleads guilty

234
Q

Under what provisions can a solicitor ask for evidence to be excluded at trial if the PACE codes have been breached?

A

76 - admissability of confession evidence
78 - confession and any other evidence

235
Q

What is the maximum sentence of the Mag ct?

A

6 Months unless
2 EW offences, then 12 mth

236
Q

What is the process called when it is decided if a case will be at Mag Ct or CC?

A

Plea before venue

237
Q

What is the default position re bail?

A

S4 Bail Act 1676 makes the default that the right to unconditional bail is the norm

238
Q

What is it called when individuals do not comply with bail / surrender?

A

Offence of absconding

239
Q

If the default is that bail should be granted, what are reasons to depart from this?

A

Substantial grounds to believe the D will
* Fail to surrender
* Commit an offence on bail
* Interfere with witnesses
* Obstruct course of justice

240
Q

What are the para 9 factors available to a D solicitor re objection to bail (in addition to noting if a custodial sentence is unlikely - which is also a reason to argue bail)?

A
  • Nature and seriousnsess of the offence
  • Character of defendant
  • Strength of evidence
  • D’s antecedents
  • Community ties
  • Associations
  • D’s bail record in past
241
Q

What are limits on conditions that the ct can apply to bail?

A

Technically none, but they should be:
* relevant
* proportionate &
* enforceable

242
Q

What are the forms the P and D have to complete before a CC trial and a Mg Ct hearing?

A

CC - Plea and Trial Prep Form
Mg Ct - PET Preparation for effective trial

243
Q

When is the duty to share unused prosecution evidence triggered?

A

A not guilty plea
When the case is sent to CC

244
Q

What is the prosecutor’s ongoing duty re disclosure?

A

CPand IA (Criminal Procedure and Investigations Act 1996 s3
the P MUST
* Disclose any info not previously disclosed which might reasonably be considered capable of undermining the P case against the accused, or assisting the accused OR
* Give to the accused in writing that there is no such material

245
Q

What can the P do if there is sensitive information they do not want to disclose?

A

Make a public interest immunity application

246
Q

What do the D need to do once the P has made initial disclosure?

A

Serve, within 28 days, a D statement in the CC (ext is possible)

Not essential in the Mag ct, but if so must be sent in 14 days (or 10 business days). Also, failure to do so can lead to adverse inference

247
Q

What must a D statement be and do?

A

In writing, Signed

Set out their case, inc the issues in the P case it takes issue with and relevant witnesses

248
Q

What else must the D provide with a D statement?

A

Details of any other evidence they intend to bring

249
Q

What is a Section 8 application?

A

An application for specific disclosure by the D re P evidence not shared
N.B. - It needs to be specific, not a fishing expedition!!

250
Q

What are 3 potential consequences if the P does not comply with its disclosure obligations?

A

App to stay indictment due to abuse of process
Evidence excluded
Conviction being quashed on appeal

251
Q

What 3 types of evidence may require special consideration?

A

Hearsay
Bad character (D)
Confessions
Bad character (Witness)

252
Q

What is the defn of hearsay?

A

A statement made out of court (orally or in writing) and repeated in court

253
Q

Is hearsay allowed?

A

Generally no, but there are exceptions

254
Q

What are the exceptions that might allow hearsay to be entered, and what section are they under, and on whom does the burden sit?

A

s116
* Person is dead
* Person is unfit
* Person is outside UK and attendance cannot be assured
* Person cannot be found
* Witness is physically fearful

The person wishing to rely on the evidence

255
Q

What is special about the argument that hearsay is required when a witness is physically fearful?

A

It is the only time the ct MUST allow it BUT they will only do so if it satisfies justice AND the ct has explored other means.

Also, once allowed, the D will have the opportunity to object (s78)

256
Q

What must be true about bad character evidence?

A

It must be relevant to a fact in issue and subject to one of the gateways

257
Q

What are the 7 bad character gateways and what is true of bad character evidence?

A
  • a - All parties agree
  • b - Evidence has been adduced by the D
  • c - Important explanatory evidence (102)
  • d - Relevant to an important matter between D & P (d) (103)
  • e - Substantial probative value (104)
  • f - To correct a false impression by the D (105)
  • g - D has attacked another person’s character (106)

If it doesn’t meet the gateway criteria, it’s not going in

258
Q

What is the defn of bad character?

A

Any misconduct or reprehensible character

259
Q

Re gateway (d) (“relevant to an important matter between D & P” (a common gateway), what can this show?

A

A propensity to:

a - commit offences of the type charged
* offences of the same description (103 (4) (a)) Theft / theft
* offences of the same category (103 (4) (b)) Theft / offences inc a sexual act

b - be untruthful

260
Q

What might the D be able to argue re bad character evidence?

A

That it should not be introduced to bolster an otherwise weak case

261
Q

When MUST a ct not allow bad character evidence?

A

d / g - if it appears the admission would have an adverse effect on fairness
d - ct must ensure evidence is not admitted if time since convition would make it unreasonable

262
Q

How much weight is given to bad character evidence?

A

It depends on the jury, working under the directions of the judge

263
Q

Are s78 powers of the ct discretionary?

A

Yes

264
Q

In which cases can bad character evidence of a witness be adduced?

A

a - it is important explanatory evidence

b - it has substantial probitive value which
* is an issue in the proceedings
* is of substantial importance in the context of the whole case

c - all parties agree

265
Q

What is the definition of explanatory evidence?

A

It is essential because the jury cannot understand the matter as a whole without it

266
Q

What is the defn of a confession?

A

A statement, wholly or partially, adverse to the person who made it

267
Q

What are 2 keyy ways confessions can be challenged?

A

s76 & s78

268
Q

What does s76 say about confession statements and what must the D prove?

A

They must be included of there was oppression / inducements which makes the confession unreliable

269
Q

What does s78 say about confession statements?

A

That they must be excluded if the admission would be unfair - a discretionary power

270
Q

When might a voir dire be required?

A

Fill me in!!

271
Q

What should be considered re Turnbull?

A

Amount of time under observation
Distance
Visibility
Obstruction
Known or seen before?
Any reason to remember
Time lapse
Error / material discrepancy
ADVOKATE

272
Q

When might a judge give a Turnbull direction?

A

In cases where the id needs to be qualified, and when it is important to consider if there os other supporting evidence round id

If there is poor quality and no supporting id, the case may be withdrawn

273
Q

What legislation covers sentencing, and what is it also known as?

A

The Sentencing Act 2020
The Sentencing Code

274
Q

What do the sentencting guidelines say should be considered when sentencing?

A
  • Seriousness of the offence (culpability and harm)
  • Aggravating factors (+)
  • Mitigating factors (-)

Provisional sentence

  • Assistance to prosecution
  • Reduction for a guilty plea (0.3 downwards in time)
  • Totality
  • Other appropriate orders

P and D get to make submissions too

275
Q

What is a Newton Hearing?

A

D enters a G plea, but on a different set of facts to the P. If there is a lack of agreement on circumstances, a Newton hearing to settle on an agreed narrative will be held.

276
Q

Can a D appeal a conviction and a sentence from the Mag ct and is there a need for grounds and what os the deadline?

A

Yes
No
15 days

277
Q

What is true of sentencing at the Cw Ct as an appeal ct?

A

Their sentencing powers are limited to those of the Mag ct

278
Q

What os true of an appeal from the Cw Ct to the CoA which is different to appeals form the Mag ct?

A

There need to be grounds of appeal

279
Q

Can an appeal from the Mag Ct be made by way of case stated?

A

Yes

280
Q

What are potential outcomes of an appeal at the CoA?

A

Fill me in

281
Q

When might children / young persons be tried at Cw ct rather than youth Ct?

A

Grave crime
* IO
* Offence could lead to 14 year custodial offence for adult
* In this case a sentence of 2 years could be imposed

Tried with an adult
* Interests of justice test

282
Q

What is the max sentence a Youth ct can impose?

A

2 years

283
Q

What is the interest of justice test, and is it relevant in the Mag ct?

Re children being tried in a ct other than the Youth Ct

A

Is it in the interests of justice to have the young person tried in the Cw Ct with the adult

No, though the Mag Ct may send the case to the Youth Ct for sentencing

284
Q

What will the ct consider when assessing if it is appropriate to try a child and adult together?

A

If separate trials will cause injustice to witnesses or case as a whole
Age of child / young person
Age gap of defendants
Lack of child / YP maturity
Relative culpability
Previous history

285
Q

How are the custory threshold and community threshold defined re sentencing?

A

Custody -
Community
Fill me in

286
Q

What makes a youth a persistent offender, even if if is not defined in statute?

A

3 convictions in 12 months

287
Q

On appeal from the Mag ct, who will hear the case and are the D & P restricted to the same evidence as in the original hearing?

A

A judge and x2 lay magistrates
No - new evidence can be submitted.
Appeals Mag ct to Cw Ct are appeals de novo - effectively a new trial

SQE2 collated (3 decks)

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