Criminal Flashcards
Burden of proof
On prosecution to prove D’s guilt beyond reasonable doubt
Reversal of burden => balance of probabilities
- Certain defences eg diminshed responsiblity
- Certain exemptions within the elements of the offence itself (eg without reasonable excuse)
Evidential burden (D raises defence for court to consider BUT prosecution still has burden of proof of disproving it, i.e. legal burden)
Can omissions be criminal?
Must be duty to act and D must have breached that by failing to act sufficiently
Eg:
- Special relationship
- Statute
- D voluntarily assumed a duty of care for victim
- Contractual
- D caused dangerous situation and is aware of having done so
Result crimes
Require a certain outcome
=> causation element
Both factual and legal causation must be shown for all result crimes
Factual causation
The ‘But For’ Test
D’s actions must be ‘significant’ in accelerating V’s death (if more than one cause)
Legal causation
Intervening act that broke the chain of causation?
No => legal causation established
Yes => may be more than one cause of death but the chain of causation must not be broken
LC established if death was foreseeable - Objective test
LC established if injury was still an operating and substantial cause of death (despite the intervening act)
BUT Eggshell skull rule – ie take your victim as you find him aka with any weakness or vulnerability they may have => no defence to argue that the outcome was unexpected as intervening act of V’s physical/mental state or beliefs do not serve to break the chain of causation
What may break the chain of causation?
- action by D: breaks chain if new act
- natural event => breaks chain if D and reasonable person would not have foreseen the natural event
- by victim => breaks chain if D and reasonable person would not have foreseen V’s actions and V’s act is voluntary (to break chain V’s actions must usually be ‘so daft as to be unforeseeable’)
- By 3rd party => breaks chain if intervention is free, deliberate and informed (Medical treatment v unlikely to break chain – only do so if it is independent and potent as to make the original wound the background)
Strict liability offences
No MR element
Intention (MR)
- Direct intent – D’s aim or purpose; consequences desired
- Indirect intent – not aim or purpose but consequence was virtually certain to occur and D realised it was virtually certain to occur (Only applies for specific intent offences and never applies to basic intent offences)
Specific intent
=> intention is the only form of MR (recklessness not available), as opposed to basic intent crimes which can also be committed recklessly
Eg attempt, murder, s18 GBH, theft, robbery, burglary (s9(1)(a)), fraud by false misrep
Transferred malice
Intention to commit offence against one V but inadvertently commits offence against different V
AR must be same
Usually then guilty of actual crime against inadvertent V and attempted crime against intended V
Recklessness
Foreseeing a risk (subjective) and continues regardless; and it was an unreasonable risk to take (objective)
Eg assault, battery, s20 GBH, criminal damage
Negligence
Ie carelessness; failure to measure up to the standards of the reasonable person (=> objective)
Court asks:
1. Did D owe a duty of care
2. Did D breach that duty of care
Corporate liability
Corporation can be liable for criminal act
BUT as entity distinct from owners can be difficult to establish MR
=> identification doctrine
- Prosecution must find a ‘controlling mind’ (person whose actions and mental state can be said to be that of the corp as a whole)
- Difficult => doctrine rarely used
=> statutory offences that fill in this gap and do not require MR
(Eg health and safety legislation)
Murder (AR)
Definition = ‘unlawful killing of a reasonable creature with malice aforethought’
- Causing (Factual/legal causation)
- The death (Occurs after the ‘irreversible death of the brain stem’ (ie brain dead))
- Of a human being
- Someone capable of independent life (Unborn child is incapable of being murdered)
- Not animal
Murder (MR)
Intention to kill or cause GBH – really serious harm
Can still be guilty of murder even if they kill with benevolent actions eg mercy killing
Carries mandatory sentence of life imprisonment (judge has no discretion)
Voluntary manslaughter (AR + MR)
AR and MR same as for murder but liable for voluntary manslaughter if one of the partial defences apply (ie diminished responsibility, insanity, or loss of control)
Diminished responsilibility
Makes murder into voluntary manslaughter
Burden of proof on the defence, on the balance of probabilities
Requirements=
1. Abnormality of mental functioning
2. Arose from a recognised medical condition – in ICD or DSM or generally recognised in medicine
3. Substantially impaired D’s ability to (URC):
- Understand the nature of his conduct;
- form a rational judgement; or
- Exercise self-control
4. Abnormality provides an explanation for D’s acts/omissions in killing V
(i.e. Causes or a sig contributory factor in causing D to carry out that conduct)
Loss of control
Makes murder into voluntary manslaughter
Requirements:
1. Kill someone as a result of losing control?
- Ie D is unable to restrain themselves
- Need not be sudden
2. Loss of control caused by qualifying trigger:
- Subjective ‘fear of serious violence’ aimed at D or another; or
- Things said or done which ‘constitute circumstances of an extremely grave character’ and ‘caused D to have a justifiable sense of being seriously wronged’
3. Might a reasonable person have acted in the same way
- Person of D’s sex and age, in the circumstances of D, but with a normal degree of tolerance and self-restraint
Trigger?
- Definition not clear
- Ignore if: self-induced, due to sexual infidelity, or a result of considered desire for revenge
Burden of proof on the prosecution to show that the defence does not apply
Involuntary manslaughter (i.e. constructive/unlawful act)
Applies where AR made out but MR not
Requirements:
- D must do an act intentionally
- Intention to do the act itself, not the deadly outcome
- Must be a positive act, not an omission
- Cannot be based on negligence - Act must be an unlawful act
- Must be an underlying criminal offence
- AR and MR of unlawful act must be made out
- Usual defences to the crime apply
- Crime need not be aimed at the ultimate victim - transferred malice - Act must be dangerous
- Reasonable man foresees the risk of some harm (objective) - Act must cause death – factual and legal
Manslaughter by gross negligence
No MR for this offence
5 requirements:
- Duty of care owed to the victim
- General civil duty not to cause any injury/death
- Liability for omission is sufficient - Breach of that duty
-Conduct falls below that expected of a reasonable person under that duty of care with the applicable expertise - Serious and obvious risk that D’s conduct could cause death (objective)
- Breach caused death (Causation principles)
- Breach amounted to gross negligence
- D fell so far below the standards of the reasonable person that it could be labelled grossly negligent and => deserving of criminal punishment
- Whether it amounts to gross is usually a question for the jury
Assault (AR)
= D either intentionally or recklessly causes another to apprehend immediate unlawful personal violence
AR:
1. Any act
- Can include words alone or silence
2. Which causes another to apprehend
- Ie believe they will receive
- No assault if victim does not perceive the threat
- Words spoken may negate an assault
- Conditional threats can be sufficient
- Victim only needs to fear that force could be used (doesn’t need to experience fear)
3. Immediate
- Closer than any future time
4. Personal violence
- Fear must be of physical violence to the victim
Assault (MR)
Intention or recklessness as to causing V to apprehend such force
Battery (AR)
D either intentionally or recklessly applies an unlawful personal force upon another person
AR:
- Force
- Defined broadly
- Any unwelcome contact with V’s body is sufficient
- Can be an indirect application of force
- Continuing act so can include a deliberate failure to remove a force that was initially applied without the MR (omission)
- Can be delayed (eg digging a hole the V later falls into) - Act must be capable of being unlawful
Battery (MR)
Intention/recklessness as to such infliction
Consent to assault/battery
Defence if:
- Expressed or implied to D; and
(Eg implied consent to touching that occurs in everyday life) - Given by someone with sufficient capacity, freedom and information to make a choice
S47 OAPA (AR)
- Assault or battery
- Occasioning – factual and legal causation
- Actual bodily harm
- ‘any hurt or injury calculated to interfere with the health or comfort of the victim, doesn’t need to be serious but more than merely transient’
-Can include psychiatric injury but must be recognisable clinical condition
- Cutting of hair can amount to ABH
S47 OAPA (MR)
Same as assault/battery
i.e. Intention or recklessness as to the infliction of unlawful personal force
- Just to some harm being caused,
- Does not need to intend or foresee ABH injuries
S20 OAPA (MR)
Intention or recklessness as to causing some harm
(D does not need to foresee the level or type of injury caused)
S20 OAPA (AR)
- Causing => factual/legal causation principles
- Wound; or
- breaking both layers of the skin (Bruising (breaking one layer) not enough) - GBH
- Ie really serious harm (question for the jury)
- May be psychiatric harm
s18 OAPA (AR)
Identical to s20 ie causing a wound or GBH
s18 OAPA (MR)
Intention to cause GBH; or
Foresee the risk of some harm (ABH) and intend to resist/prevent arrest
Consent to ABH or GBH?
Generally not possible to consent to injury
To be valid defence to s47/s20/s18 V’s consent must:
1. Be expressed or implied to D in a legally recognised manner
2. Be effective and V must have the capacity, freedom, and information to make a choice
3. Come within a legally recognised category
- Properly-conducted sport – consider the sport, level of play, force used and D’s state of mind
- Surgery
-Tattooing but not body modification
- Religious practices
- Sexual gratification:
(Consent to sex is also consent to the risk of sexual infections if other party fully informs them, but where HIV is deliberately inflicted it is GBH and cannot be consented to)
BUT NOT sadomasochism (but courts refused to interfere when involves matrimonial relations)
Theft (s1 TA) - AR
= appropriation of property belonging to another
- Appropriate
- = any assumption by a person of the rights of an owner
- possible to appropriate even when the other party consents
- Can be later appropriation (ie by keeping – helps establish coincidence of all elements of offence)
- Can be ongoing or repeated action - Property
- Includes money, real property, personal property, things in action (eg money in a bank account) and other intangible property eg patent - Belonging to another
- Belonging to any person having possession or control of it, or having in it any proprietary right or interest
- Abandoned - must have intended to relinquish interest totally and not give interest to anyone else
- Rarely considered to be abandoned even if lost or thrown away
Theft - s1 (MR)
- Dishonesty
- D judged on his knowledge or belief as to the facts (subjective) by the standards of ordinary decent people (objective)
- Not dishonest if D honestly (subjective test) believes that:
a) he had a legal right to deprive the owner of it
b) the owner would have consented had he known the circumstances
c) the owner cannot be found by taking reasonable steps
- Changes => liable for theft by keeping it
- Paying for something, or being willing to, does not necessarily make D honest - Intention to permanently deprive
- Words given usual meaning (aka wanting to keep something)
- Intention determined at time of taking
- Specific thing (fact you intend to replace it is irrelevant)
- Borrowing can amount to an intention to permanently deprive if removes value
- Gambled property counts
Robbery - s8 TA (AR)
- AR of theft
- Immediately before or at the time
- problematic if force is used after the theft
- BUT appropriation can be a continuing act - Uses force on any person or puts the victim in fear of being then and there subjected to force
- Must be used in order to steal
- Matter of fact for the jury
- Does not require violence, a mere nudge is enough BUT a slight touching will not count as force for robbery
- Can be applied through property
- Does not require actual fear
Robbery - s8 TA (MR)
- MR of theft
- Intending to use force/intending to put the victim in fear in order to steal
Burglary - s9(1)(a) (AR)
- Entry
- Does not need to be substantial or effective
- Occurred if any part of the body enters - Into a building (or part of)
- Requires structure with some degree of permanence - As a trespasser
- Trespasser at the time of entry
- = entering without true permission
Burglary s9(1)(a) (MR)
- Knowledge/recklessness as to trespass
- Must know or be reckless to the facts that make him a trespasser (need not know in law that he is a trespasser) - Ulterior intent as to theft/infliction of GBH/criminal damage
- Conditional intent (intent to steal IF certain circumstances arise) is sufficient
- Intention measured at the time of entry
- Does not matter if ulterior offence actually took place
Burglary s9(1)(b) (AR)
- Enter – as above
- Building (or part of) - as above
- As a trespasser – as above
- Commit the AR of:
- Theft – appropriation of property belonging to another
- Attempted theft – an act more than merely preparatory to the commission of theft
- GBH – really serious harm (NOT wound) - s18 or s20
- Attempted GBH – an act more than merely preparatory to a s18 or s20 offence
- [NOT criminal damage)
Burglary s9(1)(b) (MR)
- Know/be reckless that you are a trespasser – as above
- MR to match ulterior offence:
- Theft – dishonest intention to permanently deprive
- Attempted theft
- GBH – intention from s18 or s20
- Attempted GBH
Aggravated burglary - s10`
ie ‘armed’ when they commit an offence of burglary
Firearm or imitation firearm, weapon of offence, explosive
Fraud by fakse misrep (s2 FA) - AR
(Offence committed as soon as false representation made - immaterial as to whether anyone is in fact misled by the representation)
AR= make a representation which is false
1. Representation
- Express or implied, by words or conduct
- Fact, law, or state of mind
- Can be made to machines and humans (eg ATM)
2. Which is false
- False = untrue or misleading
- Matter of fact for the jury
Fraud by false misrep (s2) - MR
- Awareness that the representation is possibly true or misleading
=> recklessness - Dishonesty
- Intention to make a gain or cause/expose anyone else to a risk of loss
- causal element => BY making the false representation did D intend to make the gain/loss
- Fact that gain/loss would only be temporary is immaterial
- Does not matter if gain is not realised
Fraud by failure to disclose
If dishonestly fail to disclose info that they are under a duty to disclose and intend, in doing so, to:
1. Make a gain for themselves or another; or
2. Cause or risk a loss to another
AR = Legal duty will arise if D has a contractual duty to disclose
MR = Same as that required for fraud by false misrep (i.e. awareness that the rep is poss untrue, dishonesty, and intention to make a gain or cause anyone else a risk of loss)
Fraud by abuse of position (AR)
D must have been in position that warrants their duty to safeguard the other’s financial interests by being in a position of trust or expressing loyalty
Whether abuse has actually occurred = matter of fact for duty
Can be by act or omission
Fraud by abuse of position (MR)
- Intended to use their position to make gain or cause/risk loss
- D does not need to know that they occupy a position in which they are expected to safeguard the financial interests of another - Dishonesty
Simple criminal damage (AR)
- Damage or destruction
- Question of fact and degree (can be slight and easily reparable)
- Evidence of expense or effort required to remedy may be evidence but doesn’t have to be extensive - Of property
- Must be physical/tangible
- Whether real or personal
- Wild plants and fungi excluded - Belonging to another
- Having custody or control of it, any proprietary right or interest, having a charge on it
- Can incl co-owned property
Simple criminal damage (MR)
- Intention to damage or be reckless to it
- Know that the property belongs to another or be reckless as to whether it does
Simple arson
As simple criminal damage, but additional element that it must be caused by a fire itself (ie not smoke)
Lawful excuse
Available to simple criminal damage only (not aggravated)
Applies if:
1. Owner did or would have consented to the damage; or
2. They are protecting their own property (belief must be reasonably held)
Aggravated criminal damage (AR)
- Damage and destruction
- Of property
- Belonging to D or another (ie ANYONE)
Aggravated criminal damage (MR)
- Intention or recklessness as to destroying or damaging the property
- Intention/recklessness as to thereby endangering the life of another
- MR must be established at the time of the act => life doesn’t actually need to be in danger
- Endangerment must come from property damage itself
Parties to a criminal event
Principal = one who commits AR and has concurrent relevant MR
Co-principal = 2 D’s acting together for common purpose in committing act
Innocent agent = D asked someone to do something that D knows is an offence, but other party is unaware
Accomplice liability
= Aid, abet, counsel or procure the commission of an offence => also guilty of principal offence
Accomplice liability (AR)
Aid = to give help, support or assistance; before and/or at the time of the offence
Abet = encouraging or inciting; at the time of the commission of the offence
Counsel = advising, soliciting or encouraging; before the commission of the offence
Procure = produce by endeavour; before and/or at the time of the offence
Accomplice liablity (MR)
Intention to assist or encourage the commission of the offence
- A is guilty as an accomplice to offence which matches A’s own MR
- Not enough to merely foresee that PO might commit crime, must intend that the principal will do so
Attempt (AR)
to do an act which is more than merely preparatory towards the commission of the offence
no omission (must be positive act)
Attempt (MR)
Intent to commit the offence
can => be higher than what is required for the underlying substantive offence
Eg Attempted murder must be intention to kill, not just intention to cause GBH
Impossibility in fact not a defence to an attempt
Legal impossibility (ie even if completed all acts they intended would not have committed a crime) = no attempt
Punishment in attempt cases
Can be punished to same extent as completed crime, but courts tend to punish attempt less severely
Attempted murder carries discretionary life sentence
Conspiracy (AR)
=Making of an agreement between 2 or more parties to do something that is criminal
- Parties do not need to do more in pursuance of this
- BUT cannot conspire within someone incapable of agreeing to conspiracy
=> eg child or someone who lacks mental capacity
=> Spouses cannot conspire with one another if no other parties are involved
=> Proposed victim of an offence cannot be part of a conspiracy - Conditional agreement sufficient
- Number of conspiracies in multiple-party situations
a) ‘chain’ relationship (one large conspiracy)
=> Sub-agreements regarded as links in overall chain relationship
b) ‘hub and spoke’ relationships (multiple conspiracies)
=> All agreements similar in that they have one common member, but if reasonably independent from each other
(ie little interest in whether others succeed) => regarded as multiple conspiracies
Act factually impossible => still guilty
vs Act not in fact illegal => not guilty
Conspiracy (MR)
Intention to form the agreement
- No excuse that D does not know that the substantive offence is a crime
- Conditional intent is still intent
- Must be coincidence of the mental state between the conspirators
- D must intend or know that all parts of the criminal act will be completed by themselves or other parties to the agreement
(Exception = Anderson (look for specific facts as prev cases not followed this))
Criminal capacity (age)
Under age of 10 => incapable of committing a crime
Court may also assess child’s of D’s age’s ability to form intent/negligence
Criminal capacity (fitness to plead)
- Must be ‘of sufficient intellect to comprehend the course of the proceedings in the trial as to make a proper defence, to challenge a juror to whom they might wish to object, and to comprehend the details of the evidence’
- D must be able to plead and instruct their lawyers
- D unfit => court will decide if D did the act/made the omission charged against them as the offence
(Ie decide on AR alone)
Court finds D committed act =>various options
1. May send D to hospital for set period or until they improve
2. Supervision order
3. Absolute discharge
4. Murder => obliged to send D to hospital for an indefinite period
Defence (intoxication)
Not strictly a defence but may negate the MR aspects; D must meet evidential burden (show he was drunk) and prosecution must then prove that D went on to form the MR
Never a defence to a strict liability offence (as do not require MR)
Imp = Whether the intoxication was voluntary or involuntary
Involuntary intoxication (as a defence)
=> can be a defence to all types of crime
BUT may still go on to form MR (drunken intent is still intent)
If D knew he was drinking but underestimated the effects it would be voluntary
Some voluntary + some involuntary => court will have to consider how each part of the intoxication affected the D before making its decision
Voluntary intoxication (as a defence)
Dangerous vs non dangerous drugs:
- Prescription medication = non dangerous => can negate MR (but intoxicated intent is still intent)
= Alcohol + illegal drugs = dangerous and will not negate MR => consider specific/basic intent
=> need to know whether the crime is one of specific or basic intent
Specific intent = intention only => unlikely to have required MR. BUT despite his intoxicated state, did D still form the necessary MR?
Basic intent = can be intention or recklessness – intoxication is never a defence
Even if voluntary intoxication defence successful for a crime of specific intent, he may still be liable for a crime of basic intent
Self-defence
Covers defence of self, of another, of property, prevention of crime, and effecting lawful arrest
Requirements:
1. Ind may use reasonable force (objective)
2. In circumstances as D honestly believed they were in (subjective)
- Can be pre emptive
3. in order to protect self/property/other
4. Or to effect arrest/detention or prevent crime
Self-defence (householder exception)
Requirements:
1. D must be in a dwelling
2. D must not be a trespasser
3. D must believer V is trespasser
Applies => Level of force used must not be ‘grossly disproportionate’
=> can employ a greater degree of force than would otherwise be allowed but NOT a licence for a householder to do whatever they please =>
- Was the force grossly disproportionate? Yes => defence fails; no =>
- Was the force reasonable? No => defence fails (Ray – may be reasonable even if disproportionate)
Necessity (defence)
Requirements:
1. Act was required to avoid some inevitable and irreparable evil
2. D only did what was reasonably necessary
3. Evil inflicted was not disproportionate to the evil avoided
Not available to murder
Duress (defence)
Very restricted
Can be relied upon if D was subjected to threats and committed an offence to avoid the threats being realised
Restrictions:
- Not available for murder or attempted murder
- Must be a threat of death or serious injury
- Threat must be against D, their close friend or relative, or someone for whom D reasonably feels responsible
- D must have good cause to fear, taking into account the nature of the threat
- Person of reasonable firmness with D’s characteristics would have acted the same
- Threat must be sufficiently immediate, and there must be no opportunity to take evasive action; and
- D cannot rely on the defence if they have voluntarily associated with the maker of the threat, knowing that their associate has violent tendencies.
