Criminal Flashcards
Theft
Dishonest appropriation of property belonging to another with the intention of permanently depriving the other of it
dishonesty: meausred by objective standard: whether a reasonable and honest person would think defendant’s action was dishonest
either way. except for under £200 which can be treated as summ only except if elect crown court
specific intent
Theft: when is intent determined?
At the time of the appropriation
if take something with intent to keep it but then change mind, theft still occurred
borrow then decide to keep it, theft at point decide to keep it
Robbery
Commit theft and, immediately before or at the same time, they use force on a person or put any person in fear of then-and-there being subjected to force in able to steal
indictable only
specifc intent
Burglary by trespass with intent s9(1)(a)
Knowing or recklessly enter a building or part of building as a trespasser with any part of their body
With the intent to:
1. Steal
2. Inflict GBH
3. Cause criminal damage
Doesn’t matter if they actually do: if there is intention to do so at time of entry, the crime is committed
Committed at time of entry
either way unless includes commission of indictable only offence, victim subject of violence or threat or if 3rd domestic burglary - then indictable only
specific intent
Burglary by offences committed following a trespassers entry under s9(1)(b)
Knowing or recklessly entered a (part of a) building as a trespasser with any part of their body
Does not have to enter w intention to steal, inflict GBH or cause crim damage
But after entering the building they actually steal, attempt to steal, inflicted GBH or attempted to inflict GBH
Committed at time of underlying offence
Know they are a trespasser
Have mens rea of underlying offence
either way unless includes commission of indictable only offence, victim subject of violence or threat or if 3rd domestic burglary - then indictable only
Aggravated burglary
If while committing burglary have:
-firearm or imitation
-weapon (any article made or used to cause or intending to cause injury)
-an explosive
For 9(1)(a), must be in their possession at time of entry
S9(1)(b), must be in possession at time of commission of underlying offence
Don’t need to establish attempt to use weapon, just that they had it at time of burglary
either way unless includes commission of indictable only offence, victim subject of violence or threat or if 3rd domestic burglary - then indictable only
Strict liability offence
doesn’t require any mental state, just the act
evidential burden of proof
burden of raising certain defences
legal burden of proof
once defence raises a defence, prosecution has the burden of disproving that defence beyond a reasonable doubt
Elements of defence of loss of control
Loss of control, qualifying trigger and another in the defendant’s position, sharing their qualities, might have reacted in the same way
Qualifying trigger for purposes of defence of loss of control
Fear of serious violence or things said or done constituting circumstances of an extremely grave character which gave the defendant a justifiable sense of being seriously wronged
Who is burden of proof on for loss of control defence
Prosecution
Definition of theft
Dishonest appropriation of property belonging to another with intention to permanently deprive the other of it
Definition of dishonesty for the purposes of theft
Whether the defendant’s behaviour is dishonest by the standards of reasonable and honest people
Requirements for defence of self-defence
Subjective belief that use of force was immediately required
Level of force used was objectively reasonable/proportionate in the circumstances as the defendant believed them to be
Requirements for defence of necessity
Act required to avoid some inevitable and irreparable evil
Defendant only did what was reasonably necessary
Evil inflicted was not disproportionate to evil avoided
Restrictions of defence of duress
Offence cannot be murder or attempted murder
Must be threat of death or serious bodily injury
Person of reasonable firmness w defendants characteristics would have acted the same
specific intent offence
specify intent required - cant be committed recklessly
all attempt offences are specific intent offences - require intent to commit the full crime
basic intent offences
can be committed either intentionally or recklessly
Recklessness
defendant must subjectively foresee a risk from the act and continue regardless
in all circumstances known to the defendant, must be an unreasonable risk to take (objective test)
voluntary manslaughter
when the prosecution proves the element of murder, the defendant can raise partial defences to reduce the offence to voluntary manslaughter
defences: diminished responsibility and loss of control
Diminished responsibility
partial defence from murder to voluntary manslaughter
have to demonstrate:
-defendant had an abnormality of mental function that arose from a recognised medical condition
-abnormality substantially impaired the defendant’s ability to:
–>understand nature of their conduct or
–>form rational judgement or
–>exercise self-control
-the abnormality provides an explanation for the killing
burden of proof: on defendant to prove each element on balance of probabilities
loss of control
defence to reduce murder to voluntary manslaughter
their role in the killing resulted from a loss of control - can’t restrain themselves:
loss of control was caused by a qualifying trigger:
-fear of serious violence from victim against defendant or another identified person or
-thing said or done which constituted circumstances of an extremely grave character and caused the defendant to have a justifiable sense of being seriously wronged
hypothetical person of same age and sex might have acted in the same way
revenge or infidelity alone cannot be sufficient triggers
if judge is satisfied there’s sufficient evidence that elements of LoC are made out, prosecution must prove BRD that def did not LC
unlawful act manslaughter
a type of involuntary act manslaughter
defendant committed a criminal offence that carries objective risk to victim and victim dies as a result
act must be intentional, unlawful, dangerous and the cause of death (ex: driving car fast through crowded area)
gross negligence manslaughter
type of involuntary act manslaughter
defendant didn’t commit an offence or knowingly take a risk but acted in extremely negligent way
must have breached duty of care owed to the victim in circs where there’s an obvious risk of death and breach of duty must have caused the death
assault
when a person intentionally or recklessly causes another to apprehend the immediate application of unlawful force
words can negate imminence, apprehension not present if victim finds out afterwards
summary only
basic intent offence
battery
person intentionally or recklessly applies unlawful force upon another
something must make contact with victim’s body and contact must be unwanted
summary only
basic intent offence
s47 OAPA - ABH
elements of assault or battery (causing apprehension or application of unlawful force), causation and actual bodily harm
ABH = any hurt or injury calculated to interfere w health or comfort
either way offence
basic intent
s20 GBH
wounding or inflicting GBH - greater harm than ABH. for ex, breaking skin or causing long period of unconsciousness
requires proof of intention to cause some harm or recklessness regarding risk of causing some harm
either way offence
basic intent
s18 GBH
wounding or causing GBH (breaking skin, long period of unconsciousness)
intent to cause seriously bodily harm or intent to resist lawful apprehension when risk of some harm foreseen
(recklessness not sufficient)
indictable only
specific intent
fraud by false representation
dishonestly make a false representation and intend to make a gain for themselves or another or to cause or risk a loss to another
false rep can by from intentionally trying to mislead: placing replicas next to genuine antiques
gain need not be realised
either way
Fraud by failure to disclose
failure to divulge info when under a legal or contractual duty to divulge in order to make a gain for themselves or another, or to cause or risk a loss to another
either way
fraud by abuse of position
arises from misuse of post in which a person is expected to safeguard financial interest of others
also requires intent to make gain or cause or risk a loss to another
either way
Criminal damage
destroy or damage property belonging to another intending to do so or being reckless as to whether property is destroyed or damaged
-damage can be slight, easily fixed
-property must be physical
defences:
the owner did or would have consented to the damage
property is in immediate need of protection - means of protection are reasonable having regard to all the circs
summary only under £5000, either way over
basic intent offence
aggravated criminal damage
criminal damage but:
-property can belong to defendant alone
-Defendant must intend to endanger life or be reckless with regards to endangerment, but doesn’t matter that life was, in fact, not endangered
crim damage defences aren’t available
indictable only
arson
criminal damage by fire
fire must cause the damage - not smoke etc.
either way
basic intent
aggravated arson
aggravated criminal damage by fire
fire must cause the damage - not smoke etc.
indictable only
Aid
assisting or helping the commission of an offence
can be tried as principal offender
abet
encouraging or inciting an offence
can be tried as a principal offender
counsel a crime
advising or soliciting an offence
can be tried as principal offender
procure a crime
endeavouring to have someone commit the offence
can be tried as principal offender
inchoate/incomplete offence
attempt to commit an offence - dont complete it but do something ‘more than merely prepatory’
attempt requires the intent to commit underlying crime
if physically impossible: can still be guilty of attempt
if it is legally impossible, cannot be guilty of attempt
Unfit to plead:
if lacked sufficient intellect to:
comprehend proceedings enough to make a proper defence
challenge a juror whom they might wish to object
comprehend the details of the evidence
if unfit but committed the act, court may send def to hospital, impose a supervision order or dismiss
when is involuntary intoxication a defence?
it prevented def from forming the mens rea of the crime
ignorance of strength of intoxication does not make intox. involuntary
voluntary intox through prescription medication
intox by nondangerous substance and if it negates the mens rea, the intox can be a defence
voluntary intox from dangerous drug
cant negate mens rea of basic intent offence, as can be committed intent or recklessly
but cant negate mens rea of specific intent crime
self defence
can be raised as a defence if def acting to protect themselves, another or property, prevent crime or effect lawful arrest
must have subjectively believed the force was immediately required
amount of force used must have been reasonable based on facts as def believed them to be at the time
reasonable interpreted as proportionate
can be preemptive if reasonably believe that’s the only way not to be assaulted themselves. but must be proportionate
self defence against intruder in someone’s home
householder may use force that is not grossly disproportionate, or not so disproportionate as to be unreasonable
defence of necessity
if under the circumstances, committing the offence was the lesser of two evils:
-criminal act had to have been required to avoid some inevitable and irreparable evil
-def must have only done what was reasonably necessary
-the evil inflicted must not have been disproportionate to the evil avoided
defence not available in murder cases
defence of duress
-there must be a threat of death or serious injury
-threat must be against the defendant, their close relative or friend or someone for whom the defendant reasonably feels responsible
-def must have good cause to fear, taking into account the nature of the threat
-a person of reasonable fortitude with def’s characteristics would have acted the same
-threat must be sufficiently immediate
-must have been no opportunity to take evasive action
cant be relied on as a defence if voluntarily associated w the threat maker knowing they have violent criminal tendencies
def cant rely on the defence if the crime is murder or attempted murder
murder
unlawfully killing another person and they have the intention to kill or to cause grievous bodily harm.
overriding objective of criminal procedure rule
cases must be dealt with justly
When can access to legal advice be delayed?
suspect arrested on indictable only or either way
superintendent or above authorised delay in writing
officer has reasonable grounds to believe that exercise of right to legal advice will lead to:
-interference with evidence
-interference with others
-alerting other suspects or
-hindering the recovery of property relating to the offence
access can be delayed for up to 36 hours at most
delay right to have someone informed of arrest
max of 36 hours by inspector or above
similar conditions to delaying legal advice:
-interference with evidence
-interference with others
-alerting other suspects or
-hindering the recovery of property relating to the offence
suspect can be kept in custody without being charged for only 24 hours. extensions:
additional 12 hours by superintendent if
reasonable grounds for believing further detention is necessary to secure or preserve evidence or obtain evidence by question
and
investigation is being conducted diligently and expeditiously
on application for a warrant, Mag can authorise additional 36 (total 72)
and, on second application, additional 24
total max is 96
when must an identification procedure be held?
a witness has identified or purported to identify a suspect
witness expresses an ability to identify a suspect or
a reasonable chance of an eyewitness being able to identify a suspect
rights of suspect during identification procedure
have procedure explained
free legal advice
a sol or friend present
not required to cooperate but an identification procedure could still be held covertly and failure to cooperate could be raised at trialw
what must be in caution at the start of an interview
right to legal representation
right to remain silent and are under no obligation to answer questions
anything they say can be used against them at trial
if suspect fails to mention something which they later rely on in court, and it is a fact they could reasonably have been expected to mention in interview, an adverse inference may be drawn by court
adverse inference may be drawn if a defendant failed to account for their presence at the scene of offence or an object, substance or mark found on defendant at the time of arrest
Turnbull warning
if case wholly or substantially relies on identification evidence which the defendant disputes, Turnbull guidelines followed
def also entitled to Turnbull warning: special need for caution before convicting the defendant in reliance on identification evidence, as a mistaken witness can be convincing and even several witnesses can be mistaken
jury should consider circs of the ID and weaknesses
good character direction
if def has no previous convictions
automatically entitled to it
judge says that a person of good character is less likely to commit this offence and more likely to be credible whenn asserting their innocence
Newton hearing
def pleads guilty to the offence but dispute the facts set out by the prosecution and offer to plead guilty on different facts
if pros rejects the plea, a Newton Hearing is held to settle the disputed facts
if settles in pros. favour, def loses any credit for guilty pleaEW
Referral order
youth sentencing
sends youth to Youth Offender panel who will meet with the youth and their family and agree a contract of conduct of 3-12 months
youth rehabilitation order
like community order
meet with probation
work unpaid up to 240 hrs in 12 months
restitution to victim
curfew
detention and training order
first half of sentence in custody and second half reporting to Youth Offending Team
max 2 years
not available for 10-11 year olds
12-14 only if persistent young offenders: sentenced on 3 occasions for offence punishable by imprisonment
15-17 if court determines only a custodial sentence is justified
magistrates standard directions
prosecution must serve evidence and notice of intention to adduce bad character evidence within 28 days of order
after receiving prosecutions evidence and any notice of intent to adduce bad character evidence, the defence:
must notify prosec which prosec witnesses are required to attend trial within 7 days
and serve defence statement within 14 days
Goodyear indication
def asks for indication of sentence before entering a plea
if judge gives an indication and def then pleads guilty, the judge will be bound by their indication
time frame for prosecution to complete disclosure (crown ct)
50 days or 70 if def on bail
when does defence serve its defence case statement (crown ct)
within 28 days of prosecution providing disclosure
how much notice does pros have to give to adduce evidence of bad character
20 business days of entry of not guilty plea in Mag or
10 in Crown
appeals from Mag to Crown ct
lodge written notice within 15 business days
a right, so no grounds need to be given
crown ct can increase or reduce sentence imposed but restricted to Mag’s sentencing power
appeal from Mag to Divisional High Ct
by way of case stated: decision is wrong in law or in excess of jurisdiction
made in writing within 21 days of decision being appealed
must include point of law subject to the appeal. for ex: bench misunderstood or misapplied the law, made errors on the admissibility of evidence or heard a case outside their jurisdiction
appealing conviction or sentence from crown court to CoA
must apply for leave
if seeking leave from CoA, lodge application of leave to appeal within 28 days of the decision
court may decline to hear appeal
conviction can only be appealed from Crown Ct on basis it is unsafe: for ex evidence wrongly admitted or excluded, direction wrongly given or omitted, conduct of the trial judge demonstrated obvious bias, wrongful exercise of discretion, errors in summing up, problems with jury
sentence can be appeal on basis sentence was wrong in law, principle or manifestly excessive
prosecution cannot appeal jury’s acquittal but can appeal rulings made my judge during trial
Defence case statement
(a) set out the nature of your defence, including any particular defences on which you intend to rely;
(b) indicate the matters of fact on which you take issue with the prosecutor, and in respect of each explain why;
(c) set out particulars of the matters of fact on which you intend to rely for the purposes of your defence;
(d) indicate any point of law that you wish to take, including any point about the admissibility of evidence or about abuse of process, and any authority relied on; and
(e) if your defence statement includes an alibi (i.e. an assertion that you were in a place, at a time, inconsistent with you having committed the offence), give particulars, including –
(i) the name, address and date of birth of any witness who you believe can give evidence in support of that alibi,
(ii) if you do not know all of those details, any information that might help identify or find that witness.
