Criminal Flashcards
What is required for causation?
- Factual: ‘but for’ test
- Legal: operating and substantial (i.e., more than de minimis / minimal; no NAI)
When will medical negligence break the chain of causation?
Test: so independent of original acts and in itself so potent in causing serious harm; making original wound ‘merely part of history’
When will acts of 3rd party break the chain of causation?
‘Free, deliberate and informed’
When will V’s acts break the chain of causation?
Was the act (e.g. escape) foreseeable by the reasonable person or was it so daft and unexpected that no reasonable person could have foreseen it?
When will suicide break the chain of causation?
- Injuries inflicted by D have healed, but V goes on to die by suicide; or
- It was a voluntary and informed decision to act
When will natural events break the chain of causation?
Extraordinary and not reasonably foreseeable
What are 5 exceptions to the general rule that D cannot be criminally liable for a failure to act?
- Statutory duty
- Special relationship (doctors and patients; parents and their children; spouses; public office holders)
- Voluntary assumption of DoC
- Breach of contractual duty
- D creates a dangerous situation
When will D be criminally liable for a failure to act by creating a dangerous situation?
D inadvertently sets in motion a chain of events that causes the risk of damage, and that person becomes aware of what is happening and can prevent further damage, and fails to do so
When is oblique intent available? What is the test for oblique intent?
Available where intention is only type of available MR (e.g. murder and s1 - not available if recklessness is a possible MR)
(i) Death/serious injury was a virtual certainty as a result of D’s action (objective)
(ii) D appreciated that (subjective)
What is the general rule regarding the coincidence of AR and MR? What are 2 exceptions/ qualifications to this?
General rule: D must have relevant MR for the offence at precise moment when D commits AR
Continuing act theory: D forms MR for offence at some point during AR continuing
One transaction principle: D has MR at some time during a series of acts (incl. act done with the MR as causing subsequent acts)
What is transferred malice?
D’s MR is transferred from the intended harm to the actual harm
What is the AR for murder?
-Unlawful
-Killing
-Human being
-King’s peace
What is the MR for murder?
Intention to kill or cause GBH (i.e., serious harm)
Murder: what are 3 scenarios in which the killing will not be unlawful?
-Killing enemy soldiers in battle
-Advancement of justice
-Self defence
When will V be alive?
Fully expelled from mother’s body and born alive (umbilical cord does not need to have been cut)
What are the 4 requirements for diminished responsibility?
- An abnormality of mental functioning (i.e., objectively abnormal)
- Arising from a recognised medical condition (can be undiagnosed at the time of killing)
- Substantial (more than trivial) impairment of D’s ability to
(a) Understand the nature of D’s conduct;
(b) Form a rational judgement; or
(c) Exercise self-control - Provides an explanation for D’s acts and omissions (i.e., causality; does not need to be only cause)
How does intoxication interact with diminished responsibility?
- Intoxication is independent of abnormality: if D has AMF + D is voluntarily intoxicated, jury must be satisfied that 1-4 have been satisfied despite the drink
- Intoxication is a result of ADS: use steps 1-4, where recognised medical condition = ADS
What kind of defence is loss of control?
Partial defence
Who has burden of proof for the defence of loss of control?
Once issued is raised, P must prove BRD one component is absent for defence to fail
What are the 3 elements to the loss of control defence?
- D’s act/omission in killing resulted from a loss of self-control
- Due to the fear and/or anger qualifying trigger
- A normal person (of D’s sex and age, with a normal degree of tolerance and self-restraint and in D’s circumstances) might have acted in a similar way to D
Loss of self control: what is required for the fear trigger?
-Fear of serious violence
-Subjective
-Can be in fear for oneself/others
How does the fear trigger (loss of control) compare to self defence?
Loss of control requires fear for serious violence
Self defence requires violence + not unreasonable level of force
Loss of control: what is required for the anger trigger?
- Thing said and/or done
- That constitute circumstances of an extremely grave nature (objective; unusual)
- That caused D to have a justifiable sense of being seriously wronged (objective, but cannot ignore context; consider in relation to contemporary society’s norms and values)
Loss of control: when examining whether a normal person might have acted in a similar way to D, what are the 2 steps?
Step 1. Gravity of the qualifying trigger to a person in D’s circumstances (if relevant to what has been said/done)
Step 2. Whether, as a result of that trigger, a normal person might have done what D did or something similar (excluding those which would affect normal tolerance and ability to exercise restraint)
When can the defence of loss of control not be used? (x4 circumstances)
(a) An act of considered desire for revenge
(b) An excuse to use violence (D had intention from outset to provoke the reaction that then led to the killing)
(c) The thing said/done constituted sexual infidelity
(d) D is charged with an attempt
What is the AR for criminal damage?
-Destroy/damage
-Property
-Belonging to another
-Without lawful excuse
What is the MR for criminal damage?
Intention/recklessness as to the damage/destruction of property belonging to another
What is the AR for basic arson?
-Destroy/damage by fire
-Property
-Belonging to another
-Without lawful excluse
What is the MR for basic arson?
Intention/recklessness as to the damage/destruction of property belonging to another by fire
What is the AR for aggravated criminal damage?
-Destroy/damage
-Property
-Without lawful excuse
What is the MR for aggravated criminal damage?
-Intention/recklessness as to the destruction/damage of property
-Intention/recklessness as to the endangerment of life by the damage/destruction
What is the AR for aggravated arson?
-Destroy/damage by fire
-Property
-Without lawful excuse
What is the MR for aggravated arson?
-Intention/recklessness as to the destruction/damage of property by fire
-Intention/recklessness as to the endangerment of life by the damage/destruction by fire
What is the AR of theft?
-Appropriation
-Property
-Belonging to another
What is the MR of theft?
-Dishonesty
-With the intention to permanently deprive
What is the AR of robbery?
-AR of theft
-Force:
(1) Uses force;
(2) Puts any person in fear of being then and there subjected to force; or
(3) Seeks to put any person in fear of being then and there subjected to force
-On any person
-Use or threat of force immediately before or at the time of stealing
What is the MR of robbery?
-Dishonestly
-ITPD
-Intend to use force in order to steal
What is the AR/MR for s9(1)(a) burglary?
-Enter
-(Part of) a building
-As a trespasser
-Knowing/reckless that he is a trespasser
-Intend to commit theft, GBH or criminal damage as they do so
What is the AR/MR for s9(1)(b) burglary?
-Have entered
-(Part of) a building
-As a trespasser
-Knowing or being reckless as to entry as a trespasser
-D (attempted) theft/GBH
What is the AR/MR for aggravated burglary (s10)
-A burglary under s9(1)(a) or (b) has occurred
-D has with them, at the time of the burglary, an article in s10(1)(a-c)
-D has this article with them at the appropriate time ((a) = entering a building; (b) = committing (attempted) theft/GBH))
-D knows they have the article with them
What is the AR for fraud by false representation?
False rep:
-Express/implied rep
-Rep as to fact, law or state of mind
-Rep is untrue/misleading
What is the AR for fraud by failure to disclose?
-Existence of a legal duty to disclose
-Failure to disclose info to another person
What is the AR for fraud by abuse of position?
-Occupy a position in which they are expected to safeguard, or not act against, the financial interests of another person
-Abuse that position
What is the MR for fraud by false rep?
-Dishonestly make the false rep (what was D’s knowledge and belief as to the facts; given that knowledge and those beliefs, was D dishonest by the standards of ordinary decent people)
-Intention, by the rep to make a gain for themselves or another or cause loss to another or expose another to a risk of loss
-MR for the false statement: knowledge that the rep is or might be untrue/misleading
What is the MR for fraud by failure to disclose?
-Dishonestly fail to disclose (D’s knowledge and belief as to the facts; given that knowledge and those beliefs, was D dishonest by the standards of ordinary decent people?)
-Intention, by failure to disclose the info, to make a gain for themselves/another or cause loss to another or expose another to a risk of loss
What is the MR for fraud by abuse of position?
-Dishonestly abuse the position (D’s knowledge and belief as to the facts; given that knowledge and those beliefs, was D dishonest by the standards of ordinary decent people?)
-Intention, by the abuse of position, to make a gain for themselves/another or cause loss to another or expose another to a risk of loss
What is the AR of assault?
-Causing v to
-Apprehend
-Immediate and
-Unlawful
-Personal violence
What is the MR of assault?
Intention or recklessness as to causing V to apprehend immediate and unlawful personal violence
What are 4 potential examples of assault?
-Threats of violence
-V anticipates violence but there is no actual touching
-Some words or physical movement from D (e.g., raising a fist towards the victim) would be sufficient
-Silence in some circumstances
What is the AR of battery?
-Application of
-Unlawful
-Force to another
What is the MR of battery?
Intention or recklessness as to applying unlawful force to another
What are 4 examples of battery?
-Mere touch
-An unwanted kiss
-A slap
-Scratches/grazes, minor bruising or superficial cuts
What is the AR of s47 OAPA?
-Assault/battery
-Occasioning
-ABH
What is the MR of s47 OAPA?
Intention/recklessness as to:
-Causing V to apprehend immediate and unlawful personal violence; or
-Applying unlawful force upon another
What are 6 examples of s47 OAPA?
-Temporary loss of sensory function (e.g., sight or hearing)
-Temporary loss of consciousness
-Extensive bruising
-Cutting someone’s hair without their consent
-Minor fractures
-Psychiatric injury that is more than trivial (beyond mere fear, distress or panic)
What is the AR for s20 OAPA?
-Wound; or
-Infliction of GBH
What is the MR for s20 OAPA?
D intends or is reckless as to the causing of some harm
What is the AR for s18 OAPA?
-Wound; or
-Causing GBH
What is the MR of s18 OAPA?
D intends to cause GBH
What are 6 examples of GBH?
GBH:
-Permanent loss of sensory function
-Permanent disability
-Broken bones
-Fractured skull
-Substantial blood loss
-Serious burns
Intoxication: where is the test ‘would D have formed the MR (i.e., foresaw the risk of harm) if sober’?
Voluntary + dangerous + basic
Intoxication: when is the test ‘did D form MR in his intoxicated state’
NOT voluntary + dangerous + basic
So: used for
-Involuntary intoxication
-Voluntary intoxication by non-dangerous drugs
-Voluntary intoxication and D has committed a specific intent crime
Which crimes are specific intent crimes? Which are basic intent crimes?
Specific: ‘recklessness’ is not in MR
-Murder
-s18
-Theft
-Robbery
-s9(1)(a)
-s9(1)(b) except by causing GBH
Basic: ‘recklessness’ is in MR
-Unlawful act manslaughter
-Gross negligence manslaughter
-s20
-s47
-Battery
-Assault
-Basic and aggravated criminal damage
-s9(1)(b) if causing GBH
When is the defence of consent available? Who has burden of proof?
Offence is not more than assault/ battery (or, if ABH+, did not see risk of inflicting ABH) and
(1) V consented; or
(2) D honestly believed that V was consenting
For P to disprove both
Consent: what are the 6 exceptions?
- Medical treatment
- Sport
- Horseplay
- Tattooing, body piercing and personal adornment
- Sexual gratification/ accidental infliction of harm
- Lawful correction of a child (unless it results in ABH+)
What kind of defence is self defence?
All or nothing general defence: D acquitted or defence will fail
Self defence: who has burden of proof?
For prosecution to disprove that D acted in self defence
Self defence: what are the 2 stages?
- Trigger: D honestly believed that the use of force was necessary
- Response: was the level of force used objectively reasonable in the circumstances as D believed them to be?
Self-defence: stage 2 - how does the test differ between householder and non-householder cases?
Non-householder: level of force D used in response was objectively reasonable in the circumstances and the danger as D subjectively believed them to be (force will not be reasonable if it was disproportionate)
Householder case: 2-limb test
1. Was the force grossly disproportionate in the circumstances as D believed them to be? (No = unreasonable)
2. Was the level of force reasonable?
Self-defence: what are the 4 requirements for a householder case?
- D acts to protect themselves or another
- D uses force while (partly) in (part of) a building, that is a dwelling and/or forces accommodation
- D is not a trespasser at the time the force is used
- D believed V to be in, or entering, (part of) the building as a trespasser
What is required for unlawful act manslaughter? (4 elements)
-D intentionally (voluntarily) did an act
-The act was unlawful (must be a criminal act and intrinsically unlawful; act rather than an omission)
-The unlawful act was dangerous: sober and reasonable person in D’s circumstances would recognise risk of some harm
-The unlawful act caused V’s death
What is required for gross negligence manslaughter? (5 elements)
-Existence of DOC
-Breach of that duty: standard of a reasonable person; may be raised by special skill
-Breach caused death
-Obvious and serious risk of death (not merely serious injury)
-The breach of duty was so bad as to amount to ‘gross negligence’ i.e., whether, having regard to the risk of death involved, D’s conduct was so bad in all the circumstances as to amount to a criminal act/ omission
What is the AR for an attempt?
An act which is more than merely preparatory to the commission of an offence
What is the MR for an attempt?
An intention to commit the full offence
What is a valid defence for an attempt?
D cannot be convicted for a non-existent crime
What is an innocent agent? What are 2 examples?
A person who actually performs the AR where another person may be guilty of an offence as a principal
Examples:
-Under the age of criminal responsibility
-Deceived as to what they are doing
Parties to a crime: what is the minimum required to withdraw?
Unequivocal communication of D’s intention to withdraw (exception: acts of spontaneous violence)
What is the general rule regarding acquittal where it cannot be proved which of 2 people committed the crime? What is the exception?
General rule: if it cannot be proved which of 2 people committed the crime, both must be acquitted
Exception: if it can be proved that the one who did not commit the crime as principal was a secondary party to the crime, both can be convicted
Is ait an offence to attempt to aid, abet, counsel or procure an offence?
No. But it is an offence to aid, abet, counsel or procure an attempt to commit an offence
What is the AR for accessorial liability?
-Aid
-Abet
-Counsel
-Procure
-Be a party to a joint enterprise
(And not withdrawn)
What is the MR for accessorial liability?
-An intention to assist/ encourage P’s conduct: D intends (1) to do the act which aids/encourages and (2) it to aid/encourage the commission of the crime
-If the crime requires an MR: an intention that P will do the AR with that MR (exception: procurement)
-Knowledge of existing facts/ circumstances necessary for the offence to be criminal
What does it mean to aid?
Give help, support or assistance to P before or at the time of the offence (no consensus/ connection between D/P required, but D needs to be of some assistance)
What does it mean to abet?
Incite, instigate or encourage P at the time of the offence
-Can incl. , who has a right or duty to control actions of another, refraining from doing so
-Must be communicated to P; mere presence at scene is not necessarily enough
What does it mean to counsel?
Give P advice/ encouragement before the offence is committed
-Contact and consensus between P&D is required: P must know of the counselling
-Act done must be in the scope of the advice (although it does not need to be shown that D’s words had a positive effect on P’s conduct)
What does it mean to procure?
Produce to endeavour
-Causal requirement: but for
-No need for consensus
What does it mean to be part of a joint enterprise?
BE a party to a JE with P regarding one offence and during the enterprise P commits a 2nd, different offence
-Crime B must be committed in the course of or be incidental to crime A
MR for theft: what are the negative aspects (i.e., exceptions) to dishonesty?
D will not be dishonest if appropriating property in the genuine belief that:
a. D has a right to deprive the other of the property
b. D would have the other’s consent if the other person knew
c. The person to whom the property belongs cannot be discovered by taking reasonable steps
MR for theft: what is the test for the positive aspect for dishonesty?
- What was D’s knowledge and belief as to the facts?
- Given that knowledge and those beliefs, was D dishonest by the standards of ordinary decent people?
