Criminal

Question 1

Offences against the person: the different types, including max sentence for each type

Answer 1

Offences against the person: sliding scale of assault depending on degree of harm caused to victim and defendants mens rea. From least to most serious:

Assault = summary only (magistrates court) 6 months prison and/or fine

Battery = summary only (magistrates court) 6 months prison and/or fine

S. 47 Assault occasioning bodily harm = either way (magistrates or crown court) 5 years imprisonment

S. 20 Malicious wounding or inflicting grievous bodily harm = either way (magistrates or crown court) 5 years imprisonment

S. 18 Wounding or causing grievous bodily harm with intent = Indictable only (Crown court) life imprisonment

Question 2

Types of common assault

Answer 2

Battery and assault (derived from common law (e.g. no s. in the Offences Against the Person Act 1861)

Question 3

Simple assault

Answer 3

MR: Assailant “intentionally” or “recklessly” causes the victim to apprehend (frykt) immediate and unlawful personal force.

Recklessness: subjective test based on whether the defendant personally foresaw the risk and took it.

AR: Causes the victim to “apprehend” (frykte) “immediate” AND “unlawful” “personal force”.

Unlawful? not all assaults are unlawful e.g. policemen during arrest.

Apprehension: e.g frykte for/være oppmerksom på. The victim does not have to fear, it is enough that it is aware of the personal force.

Immediate: The apprehension must be immediate. It is enough if the victim thought the force could occur immediately, but threatening with future force is not enough. Exception: Conditional threats e.g. If you don’t shut up I’ll slap you.

Personal force: includes words or silence. R v Burton: repeated phone calls with breathing sounds were assault. The accused does not have to make physical contact with the victim.

Question 4

Battery

Answer 4

MR: “Intentionally” or” recklessly” inflicting unlawful force
Defendant must have intended or foreseen the actual infliction of the force and not just the victims apprehension. There is no need to show that the intent or recklessness extended to causing injury.

AR: “infliction” of unlawful “personal force”
Force: direct bodily harm between two people, not involving direct contact (e.g. to throw) and by using other objects e.g. dog, set an obstacle for tripping.

Question 5

Law governing criminal offences against people

Answer 5

Offences Against the Person Act 1861

Question 6

Summary-only offence

Answer 6

Least serious, in magistrates court regardless of guilt or not guilt plea.

Incl: common assault s. 39 of Criminal Justice Act 1988

Question 7

Either-way offence

Answer 7

Can be tried either summarily in the magistrates court or on indictment in the Crown court before a judge and jury.

Incl: Theft

Allocation depends on plea at a hearing in the M court (plea before venue PBV).

Guilt pleas: case stays in Magistrates court

Not guilt: M conducts an allocation hearing to decide whether case stays or should be moved to C court.
- If M declines jurisdiction, the accused has no choice and case is moved to to C.
- If M accepts, accused can choose between M and C.

Question 8

Indictable offence

Answer 8

Tried before judge and jury in Crown Court. Accused will still have an initial appearance for M court, before transferred to C.

Question 9

s. 47 Offences Against the Person Act 1861

Answer 9

AR: Simple assault or battery that (causes) “occasions” “bodily harm”.

Simple assault or battery: Hence a form of common law assault with an ‘extra’ injury.

Occasions: causation (both factual and legal) between actus reus and the harm caused

Actual bodily harm: R v Miller “need not be serious or permanent in nature, but it must be more than ‘transient or trifling’. A bruise or swelling is enough.

Mental harm: based on the severity, mental harm that constitutes a clinical condition could constitute simple assault or battery which causes bodily harm. E.g reactive anxiety or depression is likely to qualify, whilst panick attacks or strong emotions are not.

MA: defendant must have “intent” or be “reckless” as to the assault or battery. The mens rea does not have to extend to actual bodily harm. Hence MA for simple assault or battery that causes (occasions) bodily harm and simple assault or battery are the same.

R v Savage: defendant only intended to throw a glass of beer over the claimant, but the glass broke and sliced the claimants wrist. Intent for assault/battery, but not bodily harm - still covered.

Question 10

s. 20 Offences Against the Person Act 1861

Answer 10

AR: unlawfully “wound” or unlawfully “inflict” “grievous bodily harm” on the victim.

Inflict: means the same as to harm in the offences mentioned above

Grievous bodily harm: “really serious harm” e.g. fracture skull, broken limbs, internal injuries, acid, very serious psychiatric harm

Wounding: breaking of skin so that it bleeds: e.g. cut, scratch, cut inside mouth. Does not cover bruising or rupture of blood vessels in eyes

MR: “maliciously” means intent or recklessness. Must intend or recklessly cause actual bodily harm. It is not necessary that the defendant intended that bodily harm to be grievous, it is sufficient that he foresaw a risk that some bodily harm would be caused.

Question 11

s. 18 Offences Against the Person Act 1861

Answer 11

AR: Unlawfully “wounding” or causing “grievous bodily harm” to a person.

Cause: the same as inflict

Wounding: breaking of skin so that it bleeds: e.g. cut, scratch, cut inside mouth. Does not cover bruising or rupture of blood vessels in eyes

Grievous bodily harm: “really serious harm” e.g. fracture skull, broken limbs, internal injuries, acid, very serious psychiatric harm

MR: (i) with intent to cause grievous bodily harm or (ii) with 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.

Intent to cause grievous bodily harm: Intent to cause lesser harm or wound is not enough. Recklessness is not enough. Evidence of planning suggests intent.

Intent to resist or prevent apprehension (arrest): the defendant intended or foresaw that harm would be caused.
If a person har recklessly caused bodily harm he may be successfully prosecuted under s. 18 if the prosecution can show that he intended or foresaw that some harm would be caused.

Total 4 ways of committing a s. 18 offence:
1. AR: Wound, MR: intent to cause grievous bodily harm
2. AR: Grievous bodily harm, MR: intent to cause grievous bodily harm
3. AR: Wound, MR: Intent to resist/prevent arrest AND intent/recklessness to cause actual bodily harm
4. AR: Grievous bodily harm, MR: Intent to resist/prevent arrest AND intent/recklessness to cause actual bodily harm

Question 12

4 ways of committing a s. 18 offence.

Answer 12

Total 4 ways of committing a s. 18 offence:
1. AR: Wound, MR: intent to cause grievous bodily harm
2. AR: Grievous bodily harm, MR: intent to cause grievous bodily harm
3. AR: Wound, MR: Intent to resist/prevent arrest AND intent/recklessness to cause actual bodily harm
4. AR: Grievous bodily harm, MR: Intent to resist/prevent arrest AND intent/recklessness to cause actual bodily harm

Question 13

Consent as defence to bodily harm?

Answer 13

Simple assault + battery: consent can amount to defence
General rule: cannot consent to statutory offences in s. 47, 20 and 18 of the Offences Against the Person Act 1861.

Exceptions:
Surgery
Dangerous exhibitions
Sport (provided properly conducted)
Ear-piercing and tattooing
Consent must be freely given by an informed and competent adult. Not valid if obtained by fraud of identity or nature of the act.
Sado-masochism and body modifications are NOT exceptions

Question 14

Theft: category of offence + imprisonment max time

Answer 14

Either-way offence: triable in magistrates court or the crown court + imprisonment for up to 7 years. Theft of the same property can only be committed once.

Question 15

s. 1 Theft Act 1968 - definition of theft

Answer 15

Theft definition: dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.

AR: appropriate property belonging to another

Appropriation: the physical act of depriving property, incl. Switching price labels, using fraudulent check to obtain goods, receipt of a gift. Appropriation is the act of first dealing with the ting, but theft can occur later, then the defendant still keeps ordeals with the thing as an owner.

Property: money and all property (real and personal), including intangible property. Land can only be stolen in exceptional circumstances by
(i) a trustee in breach of trust,
(ii) a person who is not in possession of the land if they appropriate anything forming part of the land including by severing it,
(iii) tenants that take something fixed to the land that they are not supposed to take.

Confidential information cannot be stolen. OBS confidential information does not fall under theft because you are not permanently depriving anyone by accessing it!!

Usually foliage on land e.g. mushrooms cannot be stolen, nor wild creature (except in captivity)

Belonging to another: possession, control, or any property right of interest. A person can steal their own property if it e.g. has been taken possession of by another as security for debt and the original owner takes it back without grounds.
If a person is obliged to deal with another’s property, it still belongs to the original owner.

MR: “dishonesty” + “intention” of “permanently depriving” it. Must be proven beyond reasonable doubt.

Dishonest: no legal definition, but defined through examples, the defendant must raise the issue of not being dishonest, before the prosecution has to disprove them beyond reasonable doubt.

Not dishonest: he believed to have a right in law to the property, the owner would have consented if he knew the circumstances, the owner cannot be found with reasonable steps

May be dishonest: they would have been willing to pay for it,

Legal test from Ivey v Genting Casinos (the Ivey test): ascertain the actual state of the defendant’s knowledge or belief as to the facts and objectively determine whether their conduct was dishonest.

Intention to permanently deprive: he treats the property as his own to dispose of regardless of the owners rights. does not actually need to dispose of it.

If taking money with the intent to pay it back it would still be an intention to permanently deprive, as what you are paying back are not the same coins. Having an intent to return the same property would still be theft as they had an intent to deprive. Borrowing is not theft, except for if the object has no value when returned e.g. used concert ticket.

An intention to return it is not enough. E.g. to pawn another’s object with the intent to buy it back would still be theft.

Question 16

Theft - genuinely abandoned property

Answer 16

Genuinely abandoned property, taking does not amount to theft if the takers honestly believes that the owners could not be found with reasonable steps. Strictly interpreted, e.g. taking a sweater that has been left outside a charity shop is theft, as the sweater is not abandoned but gifted to the shop. Selling golf balls found on golf courses is theft, as the golfers have abandoned them, but they still belong to the club. QLTS: taking money from the ground is not theft if the man honestly believed the owner could not be found.

Question 17

Robbery s. 8 Theft Act 1968

Answer 17

4 elements:

1. AR + MR of theft: Temporary appropriation is enough. E.g. if the victim takes back property right after the action, it can still be a robbery.
2. Defendant uses or threatens with force
   Force: violence is not required, and it can be directed to property e.g. a bag. Does not have to be substantial
   Must usually be directed at a person, but if an object it will be against the person who owns the property.
   If force is directed at a third party e.g. mother of a child is threatened with child being killed, the victim (child) must be aware of the threat.
3. This occurs immediately before or during the robbery
   Usually simultaneously. R v Hale: threatening a child on the way out of a robbed house if he called the police was done during the robbery.
4. Motivation of the force is to steal
   No other reason, e.g. not liking a person.

Question 18

Burglary s. 9 Theft Act 1968 - conditions for both a and b

Answer 18

Statutory offence, tried in crown court with max 10 years imprisonment and 14 years in case of burglary of a dwelling.

Two types of burglaries in s. 9 a and b. Both require the defendant to:

AR: “enter” a “building” or part of building as “trespasser”

Enter: walk through door, break in, insert a wire hanger (maybe), but not if just pushing fingertips inside a door slightly ajar and not entering properly

A building: a structure of size and some performance e.g. house, warehouse, houseboat, but no one has to live there at the moment. Tents and marquees do not count.

As a trespasser: without consent or permission. Obtaining permission through fraud is sufficient, but the permission must cover the action. E.g. permission to enter the supermarket does not extend to stealing alcohol.

MR: Know or be reckless, they are trespassers.
Recklessness: force a risk that they do not have permission to enter and go on

Question 19

Burglary s. 9 Theft Act 1968 A

Answer 19

AR: enter a building or part of building as trespasser (see above)

MR: knowledge/reckless as to being a trespasser (see above)
MR: intent to commit theft, grievous bodily harm or criminal damages

Additional MR not required under 9b.

Defendant must enter with the intent to commit theft grievous bodily harm or criminal damages in the building or part of the building.

These crimes do not have to be committed, but there must be intent. E.g. go behind the checkout to steal money if the till is open enough. It is irrelevant if the till is locked or open.

Question 20

Burglary s. 9 Theft Act 1968 B

Answer 20

AR: enter a building or part of building as trespasser (see above) +

AR: commits theft, attempts theft, grievous bodily harm or attempted grievous bodily harm
Additional AR not required under 9a.

MR: knowledge/reckless as to being a trespasser (see above)

MR: have MR for theft, attempts theft, grievous bodily harm or attempted grievous bodily harm
Must have MR for either theft or grievous bodily harm. Criminal damage is not included. The offence is satisfied if the defendant has MR for either s. 18 or 20 assault under OAPA 1861 above.

Question 21

Burglary s. 9 Theft Act 1968: differences between a and b

Answer 21

Differences in MR.
1. A = must have MR for ulterior offence upon entry of the building
B = only needs MR for ulterior offence after entry, when it is committed or tried committed.

2. B includes reckless GBH.
3. B includes attempts to steal or GBH.
4. A includes unlawful damage to the building, which B does not include.

For A) the accused must intend/recklessly trespass + “intent” to commit one of the ulterior offences in s. 9(2): theft, inflicting GBH or unlawful damage to the building.
= the accused will still be liable for burglary if he intends to commit one of the offences upon trespassing even if he is unsuccessful or there is nothing to steal.

For B) the accused must intend/recklessly trespass + after he has entered the building as the trespasser have MR for theft or inflicting GBH. Hence GBH can be committed recklessly + the accused does not have to have the means rea for the ulterior offence upon entering the building.

Question 22

s. 10 Theft Act 1968

Answer 22

He commits any burglary and at the time has with him a firearm, imitation of a firearm, any weapon of offence or any explosives.

Weapon of offence: article made or adapted to cause injury or incapacitate a person e.g. rope, hammer or handcuffs
At the time: the weapon must be with him at the time of the burglary. 9.a: at the time of entry, VS 9b: when the ulterior offence (theft, grievous bodily harm) is committed

Question 23

Simple criminal damage

Answer 23

Def: a person who without lawful excuse destroys or damages property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilt of an offence

AR: “destroy” or “damage” “property” belonging “to another” without lawful excuse

Destroy or damage: physically harm, permanent or temporary, impair value or usefulness. It is sufficient if expense is incurred to rectify the defendant’s act. Examples include drawing on payment with soluble chalk (kritt) as the authority would have to pay for cleaning or spitting on clothing which causes stains, or smearing mud in police cells.

Property: only tangible property, both real and persona, including tamed animals. Flowers in gardens are covered, but e.g. wild mushrooms are not.

To another: anyone with legal ownership incl. Custody or control, a property right or interest, a charge
Without lawful excuse: 2 excuses in s. 5 of Criminal Damage Act 1971

Belief in consent: subjective test of honest belief by defendant that they had consent or would have consent if they had known about circumstances.

Protection of property: defendant believed that the property was in immediate need of protection (subjective test) and that the means were reasonable (objective test).

The belief of consent or protection needs to be genuine, but it is irrelevant whether the defendant came to this belief because they were intoxicated. ONS simple criminal damage is a crime of basic intent, so the defendant cannot rely on intoxication as a defence for MR (as opposed to offences of special intent).

A person can be liable for criminal damage even if the damage already has been rectified by the defendant e.g. paying for dry cleaning. This is only a mitigating factor.

MR: “intention” or “recklessness” as to the destruction or damage of property belonging to another + knowledge or belief that the property belongs to another

Recklessness: subjective test of whether the defendant took a risk and an objective as to whether that risk was foreseeable.

Knowledge or belief property belongs to another: subjective test. If the defendant wrongfully thought the property was his the conditions are not fulfilled.

Question 24

Aggravated criminal damage

Answer 24

AR: destroy or damage property belonging to self or another

MR: intent or recklessness as to the destruction or damage of property + intention or recklessness as to the endangerment of life

Recklessness: subjective test. Must both be intent or reckless to destroy/damage property + endanger life.
It is not relevant whether a life was actually in danger. The point is that the defendant either intended or was aware of a risk of danger to life at the time of doing the act.
The endangerment of life must come from the damage and not the act that caused the damage. E.g. for shooting through a window, the endangerment must come from broken glass and not the shot itself.

S. 5 of lawful excuse does not apply for aggravated criminal damage or aggravated arson.

Question 25

Arson

Answer 25

Simple arson:

AR: destroy or damage property belonging to another without lawful excuse by fire

MR: intent or recklessness as to the destruction or damage of property belonging to another + knowledge or belief that the property belongs to another

Recklessness: subjective test.

For simple arson, the defense of lawful excuse applies. OBS the defence of lawful excuse does not apply for aggravated arson or aggravated criminal damage.

Question 26

Aggravated arson

Answer 26

AR: destroy or damage property belonging to self or another by fire

MR: intent or recklessness as to the destruction or damage of property + intention or recklessness as to the endangerment of life

Recklessness: subjective test. Must both be intent or reckless to destroy/damage property + endanger life.
It is not relevant whether a life was actually in danger. The point is that the defendant either intended or was aware of a risk of danger to life at the time of doing the act. The endangerment to life must be apparent to the defendant. As this is a subjective test, it is not an assessment of the relevant person.

The endangerment of life must come from the damage and not the act that caused the damage. E.g. For fire, the endangerment of life must come from damage such as a collapsing building, but not from the fire or smoke itself. The fire and smoke is the act that caused the damage, not the damage.

S. 5 of lawful excuse does not apply to aggravated arson or aggravated criminal damage.

Question 27

Murder

Answer 27

Common law offence, mandatory life sentence

AR: cause the death of a human (must be at peace, not war)

MR: “Intent” to kill or cause grievous bodily harm.

Defendant is guilty even if it was a ‘mercy’ killing

Grievous bodily harm: really hurt the victim.

R v Moloney: drunk competition to fire a gun fastest and the defendant accidentally killed the victim. He had not intended to kill stepfather and was not found guilty of murder. Guidance from the house of lords: Where the defendant’s purpose was other than to cause serious bodily harm or death to another then the jury may infer intent if the consequence of the defendant’s act was a natural consequence, and the defendant foresaw that this was a natural consequence of his act.

If there was no intent, indirect intent should be assessed.

Question 28

Voluntary manslaughter

Answer 28

All components of murder have been proven (AR + MR is the same), but a defence that lessens murder to manslaughter is accepted.

3 situations where murder may be reduced to manslaughter:

1. Diminished responsibility
   Statutory defence where 4 elements needs to be proved:
2. Abnormal mental function
3. Which arose from a recognised medical condition, that
4. Substantially impaired the defendant’s ability to understand the nature of the conduct (voluntarily drinking or drugs does not excuse, but if the mental condition was triggered by alcohol or drugs it could be enough), and
5. Provides an explanation for the defendant’s act or omission on doing the killing (causal link)

Difficult to prove all elements, but the defendant only has to prove defence on the balance of probabilities. Example from QLTS questions is PTSD if the defendant can prove that his mental functioning affected his ability to exercise self control.

2. Loss of control
   Only applies to murder, no other crimes! Defined in statute as:
   Defendant must lose self-control (does not have to be sudden and includes reactions to build-up of events, but if planned or desire for revenge, it was likely not a loss of self-control)

The loss of control has a qualifying trigger
Fear: the defendant feared serious violence from the victim against the defendant or another person. Subjectively assessed and could be fair even if it was not reasonable
Anger: something said/done was of extremely grave character and confused the defendant to have a justifiable sense of having been seriously wronged.
Sexual infidelity: the statute excludes this as a trigger, but may form part of the context where other factors form a trigger. Hence if it is an integral part of the crime, it should be included as evidence to be decided by a jury.
A person similar to the defendant might have acted in the same or similar way (not enough that a reasonable person could have done so)
Primarily objective, with age and sex as characteristics
Takes into account the defendants’ circumstances other than those of self-restraint and tolerance. These are not considered

Unlike diminishing responsibilities, the conventional burden of proof applies, hence if the defendant can provide some evidence, the burden is reverted back to prosecution that must prove beyond reasonable doubt that there was no loss of control.
Evidence can be presented to a jury if the opinion of the trial judge, the jury could reasonably conclude that the defence might apply. R v Jewell: the mere statement that the defendant lost control was not evidence enough that the exception would apply and the defendant was convicted for murder. The judge has not let deaths from baby’s crying, honor killings or threats to prevent someone from seeing their child unless they agree to divorce settlement terms be tried.

3. Suicide pact - too rare.

Question 29

3 situations where murder may be reduced to manslaughter:

Answer 29

1. Diminished responsibility
2. Loss of control
3. suicide pact

Question 30

Involuntary manslaughter

Answer 30

involuntary manslaughter (unlawful act manslaughter, manslaughter by gross negligence)

AR is satisfied, but not MR.

MR: There is no need to prove that the defendant intended to kill or cause grievous bodily harm, only that they did an “unlawful act” (a crime with MA of intent or recklessness).

Unlawful act manslaughter:
DPP v Newbury: if the defendant commits an unlawful act that is objectively dangerous and causes the victims death, the defendant will be guilty of manslaughter. The unlawful act does not have to be an assault. In the case, the defendant pushed a stone bridge in the path of a train and killed a guard.

Unlawful act: a crime with MA of intent or recklessness. Crimes of negligence and failure to act do not qualify.
Must also be a dangerous act: objective test, with reference to whether it was dangerous for the reasonable person that had the same knowledge as the defendant at the time of the offence. Decided by jury.
Must cause death: factual and legal causation

Question 31

Manslaughter by gross negligence

Answer 31

Manslaughter by gross negligence:

MR: only required negligence and may be committed by an act or omission (could include medical practitioners)

Conditions:
1. Defendant owed victim duty of care
Parent - child
Doctor - patient
Employer - employee
Driver - road users
Occupier visitor

2. Defendant breached duty (positive or omission)
   3 .Breach caused victim to die (causation)
3. The defendant conduct was grossly negligent
   Simple lack of care for simple negligence is not enough.

R v Adomako: nurse failed to see that oxygen supply was disconnected. The court found that the conduct was so bad that it amounted to a criminal act or omission.

Must be a risk that the conduct could cause death. That the reasonable person would have foreseen a serious risk and not just an injury, but of death. Satisfied for the driver of trucks that smuggled immigrants that died. Not satisfied for a doctor who failed to diagnose a very rare disease or doctores who did not spot abnormalities on scan.

Test for manslaughter by gross negligence is objective and evidence of the defendant’s state of mind is irrelevant. It is therefore not relevant whether the person e.g was under work-related stress.

Question 32

Fraud - statute and max sentence

Answer 32

Fraud act 2006.

An either way offence with max 10 years in prison in the Crown Court or an unlimited fine in both courts. 3 ways of committing fraud set out in the fraud act:
1. False representation
2. By abuse of position
3. By failing to disclose

Question 33

Fraud by false representation

Answer 33

S. 2 of the Fraud Act 2006.
AR: make a false representation:

Representation:
S. 2(3): a representation may relate to a fact, law (e.g. telling someone that they have no legal defence) or state of mind of the person making the representation or another person ( e.g. that they would do a future act or an event would occur)

S. 2(4): a representation may be express or implied
A representation can be in words or in conduct, written, spoken or posted on a website (no limits).

False:
Untrue or misleading (less than wholly true and capable of interpretation), and
The person making the representation knows that it is, or might be untrue or misleading
Hence would not be satisfied if the representation was indeed true, but the defendant just believed it to be untrue.
There is no need to prove that someone was actually deceived. A representation can be made to a machine (e.g. computer)

MR: knowledge that the representation is or might be false
Dishonesty
Usually clear based on common sense, but the court could look to Ivey v Genting Casino for guidance
Intention to make a gain for self or another or to cause loss to another or to expose another to a risk of loss
Must be a link between the two.
Gain or loss: includes money or property
Gain: keeping what you have or getting something you do not have
Loss: not getting what you could get or parting with what you have.

Question 34

Fraud by abuse of position

Answer 34

S. 4 of fraud act: Defendant is in a privileged position to claimant.

Conditions:
1. Defendant occupies a position in which they are expected to safeguard or not act against the financial interest of another
2. Dishonest abuse of position
3. Intend, by means of abuse of position to make a gain for themselves or others or to cause loss to another or expose another to the risk of loss.

AR: occupy relevant position:
Trustee - beneficiary
Employer - employee
Agent - principal
Director - company
Professional person - client, incl doctor
Includes family or voluntary work.
AR abuse the position: by act or omission.

MR: Intend, by means of abuse of position to make a gain for themselves or others or to cause loss to another or expose another to the risk of loss.
Mirrors MR under fraud for making false representation = see above.

Question 35

Fraud by failure to disclose

Answer 35

S. 3 of fraud act

S. 3a: dishonestly fail to disclose to another person information which they are under a legal obligation to disclose or

S. 3b: intent, by failing to disclose information, to make a gain for themselves or another, or to cause loss to another or to expose another to risk of a loss

Legal duty: statute, good faith, contract, trade custom and fiduciary relationship. Consequence is that the victim ahs cause for damages + set aside any change in legal position to which they may consent as a result from the fraud

AR failure to disclose information which D is under legal duty to disclose

MR: dishonest intention to make a gain for themselves or another, or to cause loss to another or to expose another to risk of a loss

Question 36

Conditions that must be fulfilled for an offence

Answer 36

AR: actus reus
MR: Mens rea
Causation

Question 37

Actus reus definition + different types

Answer 37

Guilty conduct by the defendant - all elements that do not relate to the state of mind. May be found in statute or common law and consist of the following components:

Conducted crimes: A voluntary act or failure to act e.g. perjury

Resulting crimes: consequences flowing from the defendant’s conduct e.g. murder

Circumstances/state of affairs crimes: Existence of certain circumstances at the time of the defendant’s conduct e,g, drink driving. The defendant will be liable even if he had no control over the situation

Omissions: generally no criminal liability for omissions. Exceptions:
- Statutory offences where the actus reus is defined as an omission
- Common law: only liable if there is a positive duty to act - if the law recognises that there were a duty to act and they failed to do so e.g. contract obligations: carers, health care professionals (incl. Doctors, emergency service, lifeguards)
- Special relationships e.g. family ties or because the defendant have assumed a duty of care
- Creation of a dangerous situation: a duty to take responsible steps to prevent harm for those who have created the danger and having become aware of it, failed to take reasonable steps

Question 38

Causation - condition for offences. Definition + different types of causation

Answer 38

The conduct must have caused the criminal act. Both factual and legal causation must be found.

Factual causation: the defendant will not be the cause of the event if the event had happened in exactly the same way without the defendant’s action (same as the “but for” test)

Legal causation: the defendant’s conduct must have been a substantial and operating cause of the consequence? Did it contribute significantly?

R v Pagett: boyfriend held girlfriend hostage + used as human shield against police was found guilty of manslaughter as he had contributed significantly to death even though the police fired the weapons.

The culpable act does not have to be the sole cause: R v Benge: foreman for a track-laying company had misread the timetable for trains which led to death. Train driver + signalman were also at fault, but that could not excuse the foreman’s actions.

The accused must take their victim as they find them (egg shell rule): if a claimant is unusually fraile, the defendant will still have to pay for the consequences.

R v Blue: man stabbed a jehovah witness who refused blood transfusion and died, even though evidence showed that a transfusion would have saved her. As the defendant’s stab wound was the reason for death, the defendant must suffer the consequences.

Question 39

Intervening act in causation to criminal offence.

Answer 39

If there is a new and intervening act that breaks the chain of causation, the defendant will not be liable. Intervening acts or events - 3 possibilities:

1. Victim acts in a particular way
   General rule: if the victim does something after the initial act but before the consequence occurs + the intervention is free, deliberate and informed (voluntary) = legal causation is not established. Rarely the case in practice as e.g. a defendant that has stabbed the claimant will be liable for injuries resulting from the claimant refusing to seek medical attention.

The court will consider how foreseeable the victims response was. R v Roberts: defendant we liable for actual bodily harm after the claimant jumped out of a moving car to escape from defendants unwanted sexual advances.
If the victim’s act is so daft as to make it the victim’s own voluntary act, the chain of causation is broken.

Suicide: a woman threw acid on partner who suffered horrific injuries and got granted euthanation (assisted death). The voluntary euthanacia did not break the chain fo causation - it was reasonably foreseeable that the victim would commit suicide.

2. A third party intervenes between the defendant’s conduct and the result

Defendant is not liable if the third party’s intervention is free, deliberate and informed, or not reasonably foreseeable.

Pagett (victim as shield) the polices shooting was not free but an instinct of self-defence, but it was foreseeable as the defendant was shooting at the police = defendant was found guilty

Defendants in homicide cases have tried to argue negligent medical attention to break the chain of causation and transfer criminal liability to the medical professional. Re public policy, this is generally not acceptable and would only happen in extraordinary cases. Courts have found that only if the second cause is so overwhelming that the original wound is mere part of history, the death does not flow from the wound.

R v Cheshire: a victim had a tracheotomy from a gunshot wound and died from scarring after surgery - the defendant was still liable for murder.

3. Some event occurs between the defendant’s conduct and the end result
   An act of good may break the chain of causation with the foreseeability of the subsequent event being the determining factor for liability.
   E.g. leaving an unconscious person at the beach with the tide coming in would not break the chain of causation as the tide is foreseeable.

Question 40

Mens rea for an offence - definition + types

Answer 40

Mens rea: guilty mind of the defendant. Possible types of MR:
1. intent
2. recklessness
3. Negligence
4. strict liability
5. transferred malice

Question 41

Intent - conditions and types

Answer 41

Intention is the most culpable mens rea. For most crimes recklessness is enough, but some require intent.
Subjective concept where the court considers that the particular defendant saw/perceived as a result of their actions.

Direct intention: the defendant seeks to achieve the consequence of their actions

Indirect intention: the consequence is a by-product from the actus reus and not the principal purpose. Legal test to establish indirect intention (from R v. Woollin):

1. Was the consequence virtually certain to occur from the defendant’s act/omission?
   (objective test, no set %. R v. Woollin: dad threw baby across the room, fractured skull and died. Not the question in the case, but likely that it would have been virtually certain that the baby had died.
2. Did the defendant appreciate that the consequences were virtually certain to occur?
   (subjective test, whether the defendant foresaw or perceived their actions. What a reasonable person would have foreseen is a good indicator, but the test is what the defendant foresaw).

Question 42

Recklessness - elements and types.

Answer 42

Type of MR. The defendant takes an unjustified risk. A less culpable mens rea than intent, as it solely involves the foresight of possible consequences instead of an appreciation of virtually certain consequences.

To elements:
1. The risk must be unjustified or unreasonable
Depends on why the defendant acted in that way, the risk, likely consequences. Assessed based on reasonable people.

2. The defendant must be aware of the risk and still take it
   Subjective assessment where the state of mind of the defendant when he took the risk must be established.
   An awareness of any level of risk is sufficient.

Question 43

Negligence - conditions

Answer 43

Type of MR. An objective standard of whether the defendant failed to measure up to the reasonable person.

Objective negligence tests where negligence is found if:
Defendant failed to foresee a risk that a reasonable person would have foreseen
Foresaw the risk but did not take steps to avoid it
Foresaw the risk but took inadequate steps to avoid it
Recklessness is consciously taking an unjustifiable risk whilst negligence is inadvertently taking an unjustifiable risk.

Common law: rarely happens in criminal cases, but could with gross negligence manslaughter. Example: failing to cater for a person that have informed that they have life-threatening allergy

Statutory offences: on objective test against the reasonable man. Test used in e.g. motoring offences and careless driving.

Question 44

Strict liability

Answer 44

Strict liability: type of MR - does not generally apply to the public at large but to people who are engaged in particular forms of conduct. An action will be an offence regardless of the intent.
Aims to encourage vigilance and safety
Often a statutory offense such as food safety, consumer protection, road safety and health
If a statute is silent, there is a presumption that mens rea is required. May be rebutted dependant on:
Statute as a whole
Social context of the offence
If the action is “truly criminal” the courts are more reluctant to apply strict liability as penalties are heavy

Question 45

Transferred malice - conditions

Answer 45

Transferred malice = type of MR.

The defendant has the “malice”/intent/Recklessness to commit a crime, but the crime was committed to the wrong claimant. The malice is transferred to the unintended victim to ensure that the defendant cannot escape liability on this ground.

R v Latimer: defendant meant to strike a man with a belt, but mistakenly stroke a woman ( belt ricocheted across the room) who suffered a facial wound. The man was liable for the assault of the woman.

Example QLTS: a man shoots a rival and accidentally also kills a passer-by. Guilty of two murders as malice is transferred to cover passer-by.

Limitations of transferred malice
Transferred malice only applies where the actus reus committed is of the same type of crime as the defendant originally had in mind.

R v Pemlinton: a man threw a stone to stop a fight but hit a window that broke. There was no transferred malice as the man had mens rea to complete the offence of assault, but the actus reus ended up being criminal damages by smashing a window. Hence, the man was not liable for assault for smashing the widow.

Most of the time, transferred malice is not needed, as the actus reus that was committed would be an offence of itself, even if it was a different one than intended.

Question 46

Coincidence of actus reus and mens rea - does accused always need to have MR at the time of AR?

Answer 46

The accused must have the required mens rea at the time when they committed the actus reus.

Exceptions:

Continuing act: The court has been flexible in application of coincidence and may find that it is enough if there is a continuing act and mens rea was present at one point. E.g. Fagan v Metropolitan police where a man who accidentally ran over a policeman’s foot turned off the car and refused to move once he realized. Even if he did not have mens rea when he did the actus rea, he did have it at some point and was convicted of assault.

A combination of events can also be unlawful and may sometimes be seen as a single transaction. Often used when it is impossible to state which action, out of several, that lead to death (e.g. stab-wound, strangulation or pushing the body of a cliff). If mens rea as present at some point during these actions which are seen as one transaction, he can be guilty of murder.

Question 47

Intoxication as a defence + types

Answer 47

A defence where intoxication results in a loss of capacity to form the mens rea.

R v Kingston: man who drank spiked coffee without knowing assaulted boy and was sentenced as a drugged intent is still intent.

The court considers whether intoxication was voluntary or involuntary + type of offence (basic or specific intent)
Offence of basic intent: Intention is not needed and recklessness can suffice. E.g. unlawful act manslaughter, assault or battery (intention or recklessness), criminal damage.
Offence of specific intent: MR is intention. Recklessness is not enough. E.g. murder, assault (intention to cause grievous bodily harm) or theft. If the defendant intends to rely on intoxication, it is beneficial to be able to argue that the intent is specific.

Voluntary intoxication
Covers voluntary taking drugs but underestimating the effect.
Crime of basic intent + voluntary intoxication = no defence. The defendant’s conduct in getting intoxicated is in itself reckless and should not lead to a defence.
Crime of specific intent + voluntary intoxication = possible defence. As solely intent is MR, it may be easier to meet the threshold. R v Lipman: Lipman hallucinated after LSD and killed a woman thinking it was a snake. Accepted as defence, the defendant lacker intent as MR.

Involuntary intoxication
Involuntary: covers the act of taking drugs not knowing about the drugs and taking non-dangerous drugs that have an unusual effect. The question is whether taking the drugs is reckless.
Involuntary intoxication can be a defence to both offences of basic and specific intent as long as the defendant lacks MR. not a defence if evidence of MR.
Dutch courage: taking drugs to gain confidence to commit a crime is not an excuse.

Question 48

Voluntary intoxication

Answer 48

Covers voluntary taking drugs but underestimating the effect.

Crime of basic intent (intentionor recklessness) + voluntary intoxication = no defence. The defendant’s conduct in getting intoxicated is in itself reckless and should not lead to a defence.

Crimes of basic intent include: manslaughter, malicious woulding, assault without intent,

Crime of specific intent (intent) + voluntary intoxication = possible defence. As solely intent is MR, it may be easier to meet the threshold. R v Lipman: Lipman hallucinated after LSD and killed a woman thinking it was a snake. Accepted as defence, the defendant lacker intent as MR.

Crimes with specific intent: murder, robbery, wounding with intent, burglary, attempt to committ an offence, handelig of stolen goods, destroying or damaging property with intent.

Question 49

Involuntary intoxication

Answer 49

Involuntary intoxication
Involuntary: covers the act of taking drugs not knowing about the drugs and taking non-dangerous drugs that have an unusual effect. The question is whether taking the drugs is reckless.
Involuntary intoxication can be a defence to both offences of basic and specific intent as long as the defendant lacks MR. not a defence if evidence of MR.
Dutch courage: taking drugs to gain confidence to commit a crime is not an excuse.

Question 50

Offence of basic intent

Answer 50

Offence of basic intent: Intention is not needed and recklessness can suffice. E.g. unlawful act manslaughter, assault or battery (intention or recklessness), criminal damage.

Question 51

Offence of specific intent

Answer 51

Offence of specific intent: MR is intention. Recklessness is not enough. E.g. murder, assault (intention to cause grievous bodily harm) or theft. If the defendant intends to rely on intoxication, it is beneficial to be able to argue that the intent is specific.

Question 52

Conditions for self defence as a defence to an offence

Answer 52

Historically both common law and statute, but both were codified in the Criminal Justice and Immigration act 2008. Both will below be referred to as self-defence as they may overlap.

Defendant has evidential burden and if proved, the defence has the burden to disprove beyond reasonable count.

Conditions:
1. Force was necessary: subjective question of whether the defendant believed that the force was necessary.
Mistake does not prevent this as long as it was their honest belief (even if unreasonable belief).
Mistake due to intoxication: self-defence exception will not apply if the intoxication was voluntary.

2. The amount of force was reasonable in the circumstances
   Defendant is judges on their belief of the facts (not a reasonable person test). Of the defendant is a house owner, the threshold is higher and the force cannot be grossly disproportionate.

Cannot rely on facts that they were unaware of at the time
Reasonable: not disproportionate. Greater danger, more force is accepted. Reasonableness-test is objective. Here it is irrelevant what the defendant thought.

Evidence for the defendant’s characteristics is admissible (e.g. threat to an old lady would be worse than to a young man), but evidence of a psychiatric condition of the defendant is not admissible to show that the force was reasonable. R v Martin: defendant shot burglar and argued self-defence as he had a paranoid personality disorder, but evidence of the condition was not admissible.

Household cases: includes self-defence in a building that is a dwelling, accommodation or vehicle/vessel that is a dwelling (driveway not covered). The defendant does not have to be the homeowner, but cannot be a trespasser. The force is unreasonable if grossly disproportionate (higher threshold) = more sympathy for the need of self-defence for households.

There is no requirement that the defendant must have retreated before taking action. Can be used as evidence, but not a duty.
The defendant does not have to wait for a strike before exercising self-defence if they honestly believed that force was necessary to avoid an attack.
Heat of the moment is taken into account when assessing reasonableness.

Defence of self-defence will fail if the defendant is voluntarily intoxicated and the belief is induced by this.

Question 53

Principal offender

Answer 53

principal offender: the person who commits the AR with MR

Question 54

Joint principals

Answer 54

Joint principals: two + people who perform AR and have MR together (equally involved)

Question 55

Accomplices

Answer 55

Secondary party: assisting in the commission of an offence, but not committing AR themselves. A person who assists in the commission of an offence is to be as blameworthy as the person who commits the crime and attract the same powers of punishment. There is no liability as an accomplice unless the AR of the principal offender is committed.

AR: 4 different possibilities
1. Aiding: help, assist, support. Before or during the offence. Includes providing weapons, information, looking out teaching a skill. No mental or causal link is needed.

2. Abetting: encourages the principal offender at the time of the offence with words or actions. Does not cover encouragement before the crime; this is covered by counseling. Requires proof of presence at the time of crime
   Mental link is required
3. Counseling: instigate, solicit, encourage or threaten principal to commit offence before the crime is committed. Winds up the principal offender. Does not cover encouragement during the crime. This is covered by abetting.
   Mental link is required
4. Procuring: takes steps to bring about offence before or at the time of offence. E.g. adding alcohol to drink. Does not cover steps taken during the offence this would be covered by aiding.
   Causal link is needed

Mere presence at a scene of a crime is not enough.

Links between principal and the accomplice
1. Mental link: meeting of minds, most likely through some form of contact. There does not have to be a mental link or contact for e.g. procurement to be the case.

2. Causal link: link between what the procurer does and the principal’s offence. Only a requirement for procuring. E.g. By adding drugs to the principal’s drink, the principal breaks the law by drink driving.

Question 56

Can accomplice be liable if principal goes beyond original plan?

Answer 56

If the principal goes beyond the original plan with the accomplice, the accomplice is not liable if he just foresaw that the new offence might occur.

Question 57

Conditions for an accomplice to successfully have withdrawn

Answer 57

If the accomplice timelig and unequivocally withdraws before the offence he could be found not guilty.

Failure to turn up at the scene is not enough.

If withdrawing during the offence, they must more than communicate their intent.

R v Beccara: Beccara gave the co-accused a knife and told him to use it during burglary if necessary. Man arrived and Becarra screamed “there’s a man coming. Let’s go” and ran away. Principal killed man and becarra was sentenced to accomplice to murder as it was not enough to constitute a withdrawal,

R v Grundy: Grundy had given info to criminals but 2 weeks before burglary tried to convince defendants to not go through with it. A withdrawal and matter to be left to a jury.

Question 58

Must an accomplice be liable for the same crime as a principle offender?

Answer 58

The accomplice can be liable as an accomplice to a crime that is more or less serious than the principal offender.
E.g. A shoots B after C told him the gun was loaded with blanks. A is liable for involuntary manslaughter and C as an accomplice. If C knew the gun was loaded and wanted to kill B, C had a higher MR than A. C can be an accomplice to murder, but A liable for Involuntary manslaughter.

R v GIlmore: G drove a car with 2 others who threw firebombs to a house and killed 2 kids. G was in the car the whole time and only though they were to cause criminal damage. G liable for accomplice to manslaughter, whilst the 2 others were liable for murder.

If a person is liable as an accomplice, he is a secondary offender, but will be tried and punished as a primary offender. If it’s a less serious crime (e.g. summary offence) and the secondary offender has a small role, he is less likely to be charged as a principal offender.

Question 59

Joint venture offence

Answer 59

MR: MR of the accomplice AR + MR of the principals offence.

JV: commits crime with common purpose or plan.
MR of the accomplice’s AR: a positive act of assistance voluntarily done. E.g. National coal board v gamble: overload on coal truck caused bridge to collapse. Even if there was no intent to cause a collapse, there was the voluntary action of overloading.

MR of the principals offence: knowledge of relevant circumstances/essential matters. Must have contemplated that certain things were to happen or have full knowledge.

Liability is made on MR if the AR of the offence is the same. E.g. The difference between murder and manslaughter is the MR. AR is the same

Question 60

Innocent agent

Answer 60

Innocent agent: commits AR but lacks MR. e.g. if the principal convinces someone innocent to commit a crime by misleading them. The principal would be charged but not the innocent agent.

Question 61

Can an accomplice be sentenced without the principal?

Answer 61

Possibilities that accomplice is convicted but not the principal of the principal has an offence or the principal cannot be found.

Question 62

Aiding (criminal)

Answer 62

Possible AR for an accomplice

Aiding: help, assist, support. Before or during the offence. Includes providing weapons, information, looking out teaching a skill. No mental or causal link is needed.

Question 63

Abetting (criminal)

Answer 63

Possible AR for an accomplice

2. Abetting: encourages the principal offender at the time of the offence with words or actions. Does not cover encouragement before the crime; this is covered by counseling. Requires proof of presence at the time of crime
   Mental link is required

Question 64

Councelling (criminal)

Answer 64

Possible AR for an accomplice

Counseling: instigate, solicit, encourage or threaten principal to commit offence before the crime is committed. Winds up the principal offender. Does not cover encouragement during the crime. This is covered by abetting.

Mental link is required

Question 65

Procuring (criminal)

Answer 65

Possible AR for an accomplice

Procuring: takes steps to bring about offence before or at the time of offence. E.g. adding alcohol to drink. Does not cover steps taken during the offence this would be covered by aiding.
Causal link is needed

Question 66

Attempt to commit an offense: where is it regulated, conditions

Answer 66

Criminal attempts act 1981

Summary offences (that must be dealt with in the magistrates court) are excluded from the attempt, but all indictable offences (may be tried in the crown court) are included.

AR: do an act that is more than mere preparation
Omissions are excluded re. act

More than mere preparation: must be able to conclude that the defendant has embarked on the commission of the offence

Impossibility of the act does not prevent AR. Defendant is guilty even if the crime would have been impossible.

MR: intent to commit the offence attempted. Includes both direct and indirect intent (R v Woollin)

R v Whybow: defendant had wired a sopedish to an electrical plug to execute wife. Needed intent for murder to be committed for attempted murder. This is a higher threshold of MR than murder itself, their intent to commit grievous bodily harm is enough.

The defendant is judged on their belief of the facts. If the defence was impossible, but the defendant believed it to be possible.