Criminal Flashcards
0
Q
Who brings the prosecution in a criminal court? Why?
A
The state. This is when there has been a breach of criminal law.
1
Q
What is criminal law?
A
Criminal law governs relationships between the individual and the state
2
Q
What is the difference between the terminology ‘sued’ and ‘prosecuted’?
A
Sued is civil
Prosecuted in criminal
3
Q
What do D,P,and V stand for?
A
Defendant
Prosecution
Victim
4
Q
The principle that a defendant is ‘Innocent until proven guilty’ is enshrined in which section of the HRA?
A
Article 6(2) of the Convention on Human Rights Act 1998
5
Q
What must prosecution prove?
A
That the defendant is guilty as charged beyond a reasonable doubt
6
Q
What is the difference between criminal and civil proceedings regarding the ‘burden’ and ‘standard’ of proof?
A
The burden of proof in a criminal case rests with the prosecution
The standard of proof in a criminal trial is beyond a reasonable doubt
The standard of proof in a civil trial is on the balance if probabilities
7
Q
When can the burden of proof shift to the defendant?
Give examples
A
In exceptional cases where the defendant is running a particular defence.
Examples: insanity, diminished responsibility
8
Q
Where; the burden of proof shifts from the prosecution to the defence, what happens to standard of proof?
A
The standard of proof changes from the criminal standard to the civil standard; on the balance of probabilities, instead of beyond reasonable doubt
9
Q
Where are criminal cases tried?
A
Magistrates court or crown court
10
Q
What percentage of criminal proceedings do the magistrates courts deal with?
A
98%
11
Q
Are magistrates legally qualified?
A
No. But the are advised by a legally qualified clerk
12
Q
What is another name for a magistrate?
A
Justice of the peace
13
Q
How many years experience do district judges have?
A
At least 5 as a solicitor or barrister
14
Q
What are the sentencing limits of the magistrates court?
A
6 months imprisonment for 1 offence
12 months imprisonment for 2 offences
Fine up to £5,000
15
Q
Who hears a trial in the crown court?
A
A judge and a jury of 12
16
Q
What happens if the defendant is found guilty or not guilty?
A
The defendant will be convicted and given a sentence if guilty or acquitted if not guilty
17
Q
In appeal judgements, the reference to ‘court of first instance’ or the ‘judge at first instance’ refers to what?
A
The Original trial which took place in either the magistrates court or crown court
18
Q
What does the term ‘leave to appeal’ mean?
A
That permission to appeal has been granted
19
Q
At what age can a person be deemed of being capable of committing a criminal offence?
A
10
20
Q
What year is the Crime and Disorder Act?
A
1998
21
Q
What level of proof is required for a defendant to claim insanity?
A
Balance of probabilities
22
Q
How can a defendant claiming insanity be found guilty?
A
If the prosecution prove beyond a reasonable doubt that the defendant is not insane
23
Q
What year is the Interpretation Act?
A
1978
24
How does the Interpretation Act 1978 define the word person in relation to a corporation?
The word person in a statute includes; a body of persons incorporated or unincorporated
25
How are offences defined?
Either by common law or statutes
26
What 3 questions should you ask when deciding if a criminal offence has been committed?
Has the accused performed a prohibited act?
Was the act accompanied by a specified state of mind/mental element?
Does the defendant have a valid defence?
27
What is the substantive criminal law?
The construction of criminal liability
28
What is the definition of murder?
The unlawful killing of a human being with malice aforethought
29
What is malice aforethought?
The intention to kill or cause grievous bodily harm
30
What is the 'actus reus' of murder?
The unlawful killing of a human being
31
What is the 'mens rea' of murder?
Intention to kill or cause grievous bodily harm
32
Construct criminal liability questions for the charge of murder:
Did the defendant unlawfully kill a human being?
Did the defendant act with the intention to kill or cause grievous bodily harm?
Does the defendant have a valid defence for the killing?
33
What are examples of 'mens rea'?
```
Intention
Recklessness
Dishonesty
Knowledge
Belief
```
34
What is an omission?
Failing to act
35
What does criminal liability require?
Every ingredient of the actus reus be established.
Every ingredient of the mens rea be established.
Every ingredient of the defence must be present in order to have a valid defence.
36
Irrespective as to whether the prohibited conduct is committed by a positive car or an omission, how must the act be committed?
Voluntarily
37
What did Lord Denning say about voluntary conduct?
No act is punishable if it is done involuntarily, and an involuntary act in this context means an act which is done by the muscles without any control by the mind, such as a spasm, a reflex action, or a convulsion, or an act done by a person who is not conscious of what he is doing, such as an act done by someone who is suffering from a concussion or while sleepwalking
38
In order to attract criminal liability a defendants conduct must be voluntary. What does this mean?
The offence must be the result of the conscious will of the defendant. Or in the case of an omission a conscious lack of action in a situation where a defendant is under a duty to act.
39
What state is someone said to be in, in circumstances where they have no control over what they are doing?
A state of autonomy
40
What defence may be used when the defendant's conduct amounts to the actus reus of a criminal offence, but that conduct is involuntary?
The defence of automatism
41
What circumstances are necessary for an omission to transpire into actus reus?
The offence in question has to be capable of being committed by omission
The defendant must be under a legal duty to act
42
The Children and Young Person Act 1933 contains what omission which amounts to acts reus?
Wilfully neglecting a child
Section 1(1)
43
The Road Traffic Act 1988 contains what omission which can amount to actus reus?
The duty for a driver involved in an accident to report it to the police or to provide his or her details to the parties involved
44
What is the general 'omission' rule?
Any offence can be committed by an omission, unless the definition of the offence excludes this possibility.
45
What are some examples of what the law will impose criminal liability for a failure to act where there is a legal duty to act?
A contractual duty
A duty arising from a special relationship
A duty arising from the defendants creation of a dangerous situation
A duty arising from the voluntary assumption of responsibility
A duty arising from public office
46
Is the removal of a feeding tube an omission or a positive act? Why?
An omission. Viewed as a discontinuation of life sustaining treatment.
47
What is a result crime?
Where the definition of actus reus requires the prosecution to prove that the defendants conduct caused a prohibited result
48
What do result crimes require?
Proof of causation
49
Where causation is an issue, what must the prosecution prove?
That the defendants conduct was both the factual cause and the legal cause of the result.
50
Who decides whether the defendant's conduct caused the prohibited result? How do they do this?
The jury
They must apply legal principles which will be explained by the trial judge
51
What is causation an element of?
Actus reus
52
What must the prosecution establish in causation?
a chain of causation in fact between the defendant's acts or omissions and the result.
a chain of causation in law between the defendant's acts or omissions and the result.
The chain of causation must not be broken by an intervention
53
How is factual causation determined?
By using the 'but for' test
54
What is question is asked in the 'but for' test?
But for the defendants conduct would the victim have died?
55
The law commission working paper on causation produced in 2002 proposes what?
A defendant causes a result which is an element of an offence when:
A) he does an act which makes a substantial and operative contribution to its occurrence
B) he omits to do an act which he is under a duty to do according to the law of the offence and the failure to do the act makes substantial and operative contribution to its occurrence
56
What contains the proposal for reform for causation?
The Law Commission Working Paper on Causation produced in 2002
57
If factual causation is established is criminal liability established? Why
No because it must also be proved that the defendants conduct is the legal cause
58
What is legal causation concerned with?
The number of causes. Who was the significant cause? Which cause was operative? Which cause was active at the time of death or injury?
59
In causation, what must the defendants conduct be?
An operating and substantial or significant cause of the result.
60
An unforeseen event may occur which breaks the chain of causation. What is the term given to this?
An intervening act
61
When must an intervening act take place?
After the act of the defendant
62
What are the 3 categories of intervening acts?
Act of god
The victims own act
Act by a third party
63
What will not break the chain of causation?
Example
An act done for the purpose of self preservation
Using someone as a human shield
64
Will the injury or death of a victim trying to escape danger break the chain of causation?
If the victims reaction was not so daft as to make it the victims own voluntary act then chain of causation is not broken.
65
When a victim dies due to a fright caused by the conduct of the defendant what will the application be?
The defendant must take the victim as he finds him.
66
What is the correct test for causation?
Did the acts for which the defendant is responsible significantly contribute to the victims death?
67
When does a natural event not break the chain of causation?
When it is reasonably foreseeable
68
Where is the mens rea stated?
In the definition of the offence
69
What mens rea is required for murder?
Intention
70
What mens rea is required for criminal damage?
Intention or recklessness
71
What mens rea is required for theft?
Both intention and dishonesty
72
Is negligence a form of mens rea?
No. Negligence is determined by reference to an objective standard.
Would a reasonable person have done what the defendant did or did not to?
73
What kind of offences do not require mens rea?
Strict liability offences
74
Why does a crime of specific intent require?
The defendant to have something in mind as the result of his action
75
What is a crime of basic intent?
The prosecution do not have to prove any intent beyond what the accused actually did
E.g punched
76
What is an ulterior intention crime?
It requires mens rea that requires consciousness that goes beyond the actus reas of the offence.
E.g burglary
77
What is the actus reas of burglary?
Entering the building as a trespasser
78
What is the basic mens rea for burglary?
Knowledge to the facts that make the defendant a trespasser
79
What is the ulterior mens rea for burglary?
The intention to commit one of the offences specified in s.9(2)
80
Is intention enough in the case of burglary that at the time he entered as a trespasser he had in mind to commit the offences?
Yes. He does not need to commit the offences in S.9(2) to be guilty of burglary
81
What are the 2 types of intention?
Direct
| Oblique
82
What is oblique intent also called?
Indirect intent
83
What is direct intention?
Where the defendant desires to bring about a particular outcome
84
What is indirect (oblique) intention?
Where a defendant does not desire a particular outcome
85
What is the case law concerned with regarding oblique intention?
The degree inevitability or probability that is necessary (before and outcome) which the defendant foresees
86
What degree of foresight of probability or inevitability is necessary before a foreseen result can be said to have been intended?
Anything less than 100% certainty is an assumption of a risk which constitutes recklessness not intention
100% certainty constitutes intention
87
Proposal for reform. The Law Commission published a report in 2006 titled Murder, manslaughter and infanticide
Recommended that intention should be defined as:
| A person should be taken to intend a result if he or she acts in an order to bring it about
88
When is a person negligent?
When he is unaware of a risk in question, but ought to have been aware of it
Or alternatively having foreseen a risk he does take steps to avoid it, but those steps fall below the standard of conduct of a reasonable person
89
When will malice not be transferred?
When the defendant intends to commit the actus reas of one offence but actually commits another offence.
90
What is the general rule for actus reas and mens rea?
They must coincide in time
91
What exceptions are there to the actus reas general rule?
A continuing act
| A dangerous situation where he is under a duty to act
92
Is homicide an offence?
It is an umbrella covering different offences. It means the killing of a human being
93
Are all killings illegal?
No. Not all killings attract criminal liability
94
What are examples of non criminal killings of a human being? Are these still regarded as homicide?
Accidental killing
Self defence
Yes
95
Key offences of unlawful homicide
Murder
| Manslaughter
96
The actus reas of 'the unlawful killing of a human being' is the definition of what offence?
Murder
| Manslaughter
97
Are manslaughter and murder common law offences or statutory offences?
Elements of these offences have been modified by parliament and the penalties are statutory.
98
What year is the Homicide Act?
1957
99
How the death penalty reformed?
Murder Abolition of Death Penalty Act 1965
100
What is the maximum penalty for manslaughter?
Life imprisonment
101
What is the difference between murder, involuntary manslaughter, and voluntary manslaughter?
Murder and involuntary manslaughter share the same actus reus but different mens rea
Murder and voluntary manslaughter share the same actus reus and mens rea. They are distinguished by 3 defences:
Loss of control
Suicide pact
Diminished Responsibility
102
What are the 3 points of minimum sentencing for a life sentence?
Whole life
30 years
15 years
103
In the case of ending the life of a medical patient as an example.
What is the difference between lawfully withdrawing treatment and unlawful active termination of a patients life
Consent
| Individuals may refuse to consent to treatment but have no right to implicate others in the positive act of killing
104
Homicide is a result crime. Explain
Criminal liability is upon proof that the accused caused the victims death.
Causation is reliant upon proof of factual causation and legal causation, and there can not be any intervention which breaks the chain if causation
105
What must prosecution show in homicide?
That there has been an exelleration in death which is more than insignificant
106
At what point does human life start?
Birth
107
When does a phoetus become a human being?
When it is wholly expelled from the mother.
108
If a phoetus dies while being born is it a human being?
No
109
What is necessary for a baby to be classed a living human being?
To have a separate existence from its mother
110
When does human life end?
When a human being stops breathing
The heart stops pumping
The brain seizes to function
111
When can life support be removed without any consequence to the patient?
When the brain is dead
112
What is person defined as who has suffered brain death?
Legally dead
113
What distinguishes murder from involuntary manslaughter?
Mens rea
114
What is implied malice?
Where there is intention to cause some serious injury but doesn't contemplate the victim will be killed
115
How does the Draft Criminal Code 1989 define murder?
A person is guilty of murder if he causes the death of another, intending to cause death or intending to cause serious bodily harm, and being aware he may cause death.
116
What are the partial defences to murder?
Loss of self control
Diminished responsibility
Suicide pact
117
When must the partial defences for murder be considered
When mens rea has established
118
What happens if a partial defence is successful in a trial for murder? Is there an acquittal?
No. The charge is reduced to voluntary manslaughter
119
What are the 3 triggers set out in section 55 of the Coroners and Justice Act 2009?
The fear trigger
The combined trigger
The anger trigger
120
What is the definition if diminished responsibility?
A person who kills or is to party to a killing of another is not to be convicted of murder if they were suffering an abnormality if mental functioning which arose from a recognised medical condition
121
What kind of defence is diminished responsibility?
A special partial defence
122
Who bears the burden of proving the defence of diminished responsibility?
The defendant
123
What is the standard if proof for diminished responsibility?
On the balance of probabilities
124
What reform does the Law Commission Report 304 propose for murder?
The division between murder and manslaughter should be replaced by a 3 tier division
First degree murder
Second degree murder
Manslaughter
