Criminal Flashcards
Summary offences
- Least serious (ie assault and criminal damage)
- Magistrates court
- Max = 6-12 months imprisonment and £5000 fine
Indictable only offences
- Most serious (ie murder)
- Judge and jury in Crown Court
- Max penalty imposed by statute
Offences “either-way” (indictable)
1) Can be tried in Magistrate or Crown Court
2) If magistrates decide powers of sentences sufficient can offer summary trial although D can choose trial by jury (in which case sent to Crown Court)
3) else magistrate can decline jurisdiction and goes to Crown Court (ie thefts, assault occasioning bodily harm)
(Diff for minors, potential sentence determines where trial held)
Police + Crown Prosecution Service
State resources prosecute on behalf of victim
NAI - medical negligence
Test = negligence must completely overwhelm original wound, “making it history” aka cannot be contributing factor
NAI - acts of third parties
NAI if free deliberate and informed (FDI)
else if not FDI then NAI if independent of D’s wrongdoing and not reasonably foreseeable
NAI - acts of victim
Only NAI if not reasonably foreseeable and “daft and unexpected”
NAI - refusing medical treatment
Not NAI
NAI - Eggshell skill rule
Take victim as find
(ie wife dies of fright from thyroid condition, not NAI)
NAI - suicide
Only NAI if not reasonably foreseeable and D’s unlawful act not significant and operating cause of death
NAI - natural events
Must be extraordinary (unforeseeable)
How to choose which NAI test
Use common sense
Omissions exceptions
exceptions where liability =
1. statutory duty
2. special relationship
3. voluntary assumption of care
4. contractual duty
5. creating dangerous situation
6. public office
Causation - AR result crimes
factual causation (but-for) + legal causation (= no NAI)
Omissions - special relationship
1) doctors + patients 2) parents + children 3) spouses (not fiances)
Omissions - voluntary assumption of care
ie looking after family member
Omissions - breach of contractual duty
gatekeeper fails to close gate, train kills man = AR of manslaughter by omission
Omissions - creates dangerous situation
supplies heroin (Evans)
Omissions - legal duty to act - public office
police constable in uniform sees man being beaten outside of club, does not stop and left scene, man dies
Omission and causation
D cannot cause by omission
Intention - 2 forms
1) direct 2) indirect (oblique)
Indirect intention
1) = objectively virtual certainty that outcome would occur and D subjectively aware of that 2) does not = intention, only evidence of intention (“finding” not “inferring)
(motive not intention but can be used as evidence)
Recklessness (R v G)
D is aware of a risk and goes ahead anyway + knowing was unreasonable to take risk
Knowledge and belief
= possibly aware that circumstance exists
Dishonesty (Ivey)
reasonable person would have thought dishonest
Negligence
higher bar than in tort = “disregard for life and safety,”
Coincidence requirement
AR and MR must occur at same time
Coincidence - continuing act theory
As long as MR takes place at some point during AR sufficient (Fagan)
One transaction principle
Sufficient that D has MR for offence at some point during series of acts even if no prior planning
Transferred malice
MR for intended harm can be transferred to actual harm IFF MR for offences is same
ie A intends to kill B, kills C instead
Mistake
Only prevents liability if negates MR
(ie thinking something that you “steal” belongs to you != theft)
Intoxication - involuntary
Did D form MR even though intoxication
Intoxication - voluntary
less serious crimes of basic intent (where MR can be recklessness) then D reckless if would have foreseen risk if sober
Consent - assault and battery (not ABH)
Re: assault and battery defence if V consented or D honestly believed that V was consenting
Consent - ABH or worse
If ABH or worse no defence of consent unless public interest exceptions = 1. medical treatment 2. sport 3. horseplay 4. tattooing/personal adornment (5. accidental infliction of harm)
Self-defence
1) can be used in protection of self, another, or property
2) full defence = acquittal
3) conditions: D honestly believed use of force necessary and level of force in response was objectively reasonable in circumstances as D believed them to be
((common law + statute (s76 Criminal Justice and Immigration Act))
Criminal justice process
1) person arrested and brought before court OR written charge and requisition to secure attendance (more minor crimes)
2) person asked to enter plea (not guilty or guilty)
3) if plea is not guilty then trial
4) if found guilty then sentenced
5) can appeal
Legal aid public funding requirements: Magistrate’s Court
1) means test 2) merit test
(can only be made orally if Magistrates Court where legal aid refused or Crown Court where person charged with contempt of court/in breach of court order + no time to instruct solicitor or D brought to court on arrest warrant)
Litigant in person
= defending one’s self
Legal aid: Means test in Magistrates’ Court
1) weighted gross income
2) eligible for public funding if <£12475, ineligible if above £22k. If in btwn take full means test to establish annual disposable income
Legal aid: Means test in Crown Court
1) income + capital (inc property), if btwn £3,399 and £37,499 then eligible with contribution (90% of disposable income for 6 mos subject to maximum)
Legal aid: Merit test (10 reasons)
1) I will lose my liberty
2) I have been given a sentence that is suspended or non-custodial. If I break this, the court may be able to deal with me for the original offence
3) It is likely that I will lose my livelihood
4) It is likely that I will suffer serious damage to my reputation
5) A substantial question of law may be involved
6) I may not be able to examine the court proceedings or present my own case
7) Witnesses may need to be traced or interviewed on my behalf
8) The proceedings may involve cross examination of a prosecution witness
9) It is in the interests of another person that I am represented
10) Any other reasons
Police station - legal advice
Always right to free advice at police station from solicitor on duty
If fail means or merit tests
1) means test - no right to appeal but can submit another form if circumstances change 2) merits test - if in magistrates court can submit interests of justice appeal online to Legal Aid Agency
If fails either or both tests can consult with duty solicitor iff offence imprisonable but will only represent that once at the first hearing
Legal aid: merit test - indictable-only offence of either-way offence sent to Crown Court
automatically passed
Classification: possession of cannabis
either-way
Classification: ABH
either-way
s18 offence
AR = wound or infliction of grievous bodily harm with intent
MR = intend to cause grievous bodily harm
s20 offence
AR = wound or infliction of grievous bodily harm MR = intend or be reckless as to causing some harm
section 47 offence
AR = assault occasioning actual bodily harm
MR for assault or battery
assault
AR = causing victim to apprehend immediate unlawful personal violence
MR = intention or recklessness as to AR
lawful excuse defence - basic criminal damage and arson
does not apply to aggravated criminal damage and arson
conditions 1. D subjectively believes that i) the property belonged to himself or another ii) that it was in immediate need of protection and iii) the conduct was a reasonable means of protecting property, undertaken iv) in order to protect the property. Damage caused by D must be objectively capable of protecting property
MR aggravated criminal damage
intention or recklessness to damage property + intends or is reckless whether someone’s life is endangered by damage (NOT the means of damage)
How many rights of the owner must be assumed to appropriate property
1
Can you appropriate property with the owner’s consent
Yes
Can you appropriate a valid gift
Yes
Under what circumstances is picking mushrooms, flowers, fruit, or foliage theft
If done for commercial purpose (ie selling)
Can property belong to more than one person for purposes of Theft Act
Yes
If under a legal obligation to return the property, is keeping it theft
Yes
Theft definition
dishonestly appropriates property belonging to another
Dishonesty test
1) what was D’s knowledge and belief as to the facts 2) given that, was D dishonest by standards of ordinary people
3 situations where appropriation of property not dishonest
- subjective belief that right in law 2. subjective belief in owner’s consent 3. owner cannot be discovered by taking objectively reasonable steps
Robbery define
theft + use of force
Who decides whether enough force has been used to be robbery
Jury using ordinary meaning of word force
Force against property for robbery possible?
Yes iff force against property causes force against person
D punches V in face, wallet falls out, D grabs it and runs away. Robbery?
No because force has not been used to steal
Two types of burglary (9(1)(a) and 9(1)(b))
- entering knowing or being reckless as to being trespasser + intention to steal or inflict GBH or do criminal damage
- after entering building knowing or being reckless as to being trespasser, attempts or commits GBH or theft
Maximum sentence for aggravated burglary
life
Aggravated burglary
commit either type of burglary + have firearm, imitation firearm, or any explosive
pepper-spray is a firearm
When must D have firearm under section 9(1)(b) burglary (attempts or commits)
When D attempts or commits GBH or theft
When must D have firearm under section 9(1)(a) burglary (intention)
At point of entry (bc that is when offence is completed)
One general offence of fraud can be committed in 3 ways:
- false representation 2. failing to disclose information 3. abuse of position
Fraud offence general requirements
- dishonesty 2. intent to make gain or cause loss
Does fraud by false representation require an express representation
No can be implied
Who decides whether the defendant occupies a position for the purposes of fraud by abuse of position?
Jury and judge, must be “akin to fiduciary relationship”
Can fraud by abuse of position be committed by omission
Yes
Involuntary intoxication may be raised successfully as a defence to which crimes?
basic and specific intent crimes (involving dangerous or non-dangerous substances)
MR question if D voluntarily intoxicated by dangerous drugs/ alcohol + commits basic intent offence?
Would D have formed MR if sober?
Which non-fatal offences against the person is consent a defence for
only assault and battery unless exceptional category, and ABH if D did not intend or foresee risk of injury
When is consent available for assault and battery
- D honestly subjectively believed that V consented or 2. V did consent
D’s mistaken belief that under attack induced by voluntary intoxication - self-defence
no self-defence available
Question for whether D’s use of force was reasonable in self-defence
Was the level of force used objectively reasonable in the circumstances as D subjectively believed them to be?
Self-defence requirements
- present or imminent attack 2. on D or another’s physical integrity, personal liberty or property 4. in response to attack D used no more force than what was reasonably necessary
D’s sober mistaken belief that under attack - self-defence
D can still rely on defence, will be judged on facts as he believed them to be
Exceptional categories allowing consent as a defence in non-fatal offences to the person beyond assault and battery
- Horseplay 2. Sport 3. Tattooing, ear-piercing, surgery (but not body modification) 4. consent to risk of STI
(not sexual gratification or punishing a child)
Use of force in householder cases - self-defence
cannot be 1. grossly disproportionate and must be 2. reasonable
ie can be disproportionate and still reasonable
= more relaxed test than regular self-defence
Householder what must D be protecting - self-defence
themselves or another, not property
MR for attempted murder
intention to kill
MR for attempts
intention to commit the whole offence
Can an attempt to aid, abet, procure or counsel lead to criminal liability
no
Who decides whether person has withdrawn from joint enterprise
The jury
Is intention or recklessness as to whether the offence is committed required for accessorial liability MR
no
Which way of committing AR for accessorial liability requires a causal link between D’s act and what P does?
to procure
MR for accessorial liability
S intentionally commits act of assistance or encouragement and intends to assist or encourage the commission of the offence
requires knowledge of any existing facts necessary for it to be criminal
MR for murder
Intention to kill or cause GBH
Partial defences to murder, if one successful results in charge of:
- loss of control 2. diminished responsibility
Voluntary Manslaughter
Loss of control conditions
- loss of self-control caused killing
- qualifying trigger = fear of serious violence, seriously wronged (objectively justified)
- normal person of D’s sex and age in same circumstances might have reacted same
Diminished responsibility conditions
- abnormality of mental functioning? 2. arise from recognised medical condition? 3. substantially impair ability to understand conduct or form rational judgement or exercise self-control 4. provides explanation for D’s conduct?
recognised medical condition relies on expert evidence, inclusion in ICD or DSM not conclusive
Definition of murder
Unlawful killing of a human being under the Queen’s Peace with malice aforethought (intend to kill or cause GBH)
Mandatory life sentence for voluntary manslaughter
No judge has discretion
Burden of proof for diminished responsibility + loss of control and standard
D, balance of probabilities
Define abnormality of mental functioning - diminished responsibility defence
A state of mind so different from that of the ordinary human that a normal person would deem it abnormal
What types of defence are loss of control and diminished responsibility
partial defences
Can D rely on loss of control for attempted murder
no
When will sexual infidelity prevent a defendant from being able to rely on the anger trigger for the loss of control defence?
When the thing said/ done constituted sexual infidelity
What is unlawful act for unlawful act manslaughter
criminal act
What is the test for whether the unlawful act was dangerous for the purposes of unlawful act manslaughter?
Sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm, albeit not serious harm
What is the burden and standard of proof where loss of control is raised as a defence?
The prosecution bear the burden of proof and just need to disprove one of the elements of the defence beyond reasonable doubt
A defendant is a drug addict who kills under a loss of control having been taunted about his addiction by the victim. The defendant was intoxicated at the time. When considering the defendant’s criminal liability at what point in your loss of control analysis will you take into account the addiction?
The anger trigger and the normal person test
When could the defendant rely on intoxication as part of the defence of diminished responsibility?
When they suffer from alcohol dependency syndrome
NOT when involuntarily intoxicated or voluntarily intoxicated
What is the test for whether there is a risk of death for the purposes of gross negligence manslaughter?
reasonably foreseeable serious and obvious risk of death
