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Criminal Flashcards

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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.

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1
Q

What is criminal law?

A

Criminal law governs relationships between the individual and the state

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2
Q

What is the difference between the terminology ‘sued’ and ‘prosecuted’?

A

Sued is civil

Prosecuted in criminal

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3
Q

What do D,P,and V stand for?

A

Defendant
Prosecution
Victim

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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

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5
Q

What must prosecution prove?

A

That the defendant is guilty as charged beyond a reasonable doubt

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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

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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

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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

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9
Q

Where are criminal cases tried?

A

Magistrates court or crown court

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10
Q

What percentage of criminal proceedings do the magistrates courts deal with?

A

98%

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11
Q

Are magistrates legally qualified?

A

No. But the are advised by a legally qualified clerk

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12
Q

What is another name for a magistrate?

A

Justice of the peace

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13
Q

How many years experience do district judges have?

A

At least 5 as a solicitor or barrister

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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

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15
Q

Who hears a trial in the crown court?

A

A judge and a jury of 12

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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

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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

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18
Q

What does the term ‘leave to appeal’ mean?

A

That permission to appeal has been granted

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19
Q

At what age can a person be deemed of being capable of committing a criminal offence?

A

10

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20
Q

What year is the Crime and Disorder Act?

A

1998

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21
Q

What level of proof is required for a defendant to claim insanity?

A

Balance of probabilities

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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

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23
Q

What year is the Interpretation Act?

A

1978

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24
Q

How does the Interpretation Act 1978 define the word person in relation to a corporation?

A

The word person in a statute includes; a body of persons incorporated or unincorporated

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25
Q

How are offences defined?

A

Either by common law or statutes

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26
Q

What 3 questions should you ask when deciding if a criminal offence has been committed?

A

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?

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27
Q

What is the substantive criminal law?

A

The construction of criminal liability

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28
Q

What is the definition of murder?

A

The unlawful killing of a human being with malice aforethought

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29
Q

What is malice aforethought?

A

The intention to kill or cause grievous bodily harm

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30
Q

What is the ‘actus reus’ of murder?

A

The unlawful killing of a human being

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31
Q

What is the ‘mens rea’ of murder?

A

Intention to kill or cause grievous bodily harm

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32
Q

Construct criminal liability questions for the charge of murder:

A

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?

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33
Q

What are examples of ‘mens rea’?

A 
Intention
Recklessness
Dishonesty
Knowledge
Belief
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34
Q

What is an omission?

A

Failing to act

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35
Q

What does criminal liability require?

A

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.

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36
Q

Irrespective as to whether the prohibited conduct is committed by a positive car or an omission, how must the act be committed?

A

Voluntarily

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37
Q

What did Lord Denning say about voluntary conduct?

A

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

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38
Q

In order to attract criminal liability a defendants conduct must be voluntary. What does this mean?

A

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.

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39
Q

What state is someone said to be in, in circumstances where they have no control over what they are doing?

A

A state of autonomy

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40
Q

What defence may be used when the defendant’s conduct amounts to the actus reus of a criminal offence, but that conduct is involuntary?

A

The defence of automatism

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41
Q

What circumstances are necessary for an omission to transpire into actus reus?

A

The offence in question has to be capable of being committed by omission

The defendant must be under a legal duty to act

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42
Q

The Children and Young Person Act 1933 contains what omission which amounts to acts reus?

A

Wilfully neglecting a child

Section 1(1)

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43
Q

The Road Traffic Act 1988 contains what omission which can amount to actus reus?

A

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

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44
Q

What is the general ‘omission’ rule?

A

Any offence can be committed by an omission, unless the definition of the offence excludes this possibility.

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45
Q

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

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

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46
Q

Is the removal of a feeding tube an omission or a positive act? Why?

A

An omission. Viewed as a discontinuation of life sustaining treatment.

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47
Q

What is a result crime?

A

Where the definition of actus reus requires the prosecution to prove that the defendants conduct caused a prohibited result

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48
Q

What do result crimes require?

A

Proof of causation

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49
Q

Where causation is an issue, what must the prosecution prove?

A

That the defendants conduct was both the factual cause and the legal cause of the result.

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50
Q

Who decides whether the defendant’s conduct caused the prohibited result? How do they do this?

A

The jury

They must apply legal principles which will be explained by the trial judge

51
Q

What is causation an element of?

A

Actus reus

52
Q

What must the prosecution establish in causation?

A

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
Q

How is factual causation determined?

A

By using the ‘but for’ test

54
Q

What is question is asked in the ‘but for’ test?

A

But for the defendants conduct would the victim have died?

55
Q

The law commission working paper on causation produced in 2002 proposes what?

A

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
Q

What contains the proposal for reform for causation?

A

The Law Commission Working Paper on Causation produced in 2002

57
Q

If factual causation is established is criminal liability established? Why

A

No because it must also be proved that the defendants conduct is the legal cause

58
Q

What is legal causation concerned with?

A

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
Q

In causation, what must the defendants conduct be?

A

An operating and substantial or significant cause of the result.

60
Q

An unforeseen event may occur which breaks the chain of causation. What is the term given to this?

A

An intervening act

61
Q

When must an intervening act take place?

A

After the act of the defendant

62
Q

What are the 3 categories of intervening acts?

A

Act of god
The victims own act
Act by a third party

63
Q

What will not break the chain of causation?

Example

A

An act done for the purpose of self preservation

Using someone as a human shield

64
Q

Will the injury or death of a victim trying to escape danger break the chain of causation?

A

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
Q

When a victim dies due to a fright caused by the conduct of the defendant what will the application be?

A

The defendant must take the victim as he finds him.

66
Q

What is the correct test for causation?

A

Did the acts for which the defendant is responsible significantly contribute to the victims death?

67
Q

When does a natural event not break the chain of causation?

A

When it is reasonably foreseeable

68
Q

Where is the mens rea stated?

A

In the definition of the offence

69
Q

What mens rea is required for murder?

A

Intention

70
Q

What mens rea is required for criminal damage?

A

Intention or recklessness

71
Q

What mens rea is required for theft?

A

Both intention and dishonesty

72
Q

Is negligence a form of mens rea?

A

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
Q

What kind of offences do not require mens rea?

A

Strict liability offences

74
Q

Why does a crime of specific intent require?

A

The defendant to have something in mind as the result of his action

75
Q

What is a crime of basic intent?

A

The prosecution do not have to prove any intent beyond what the accused actually did

E.g punched

76
Q

What is an ulterior intention crime?

A

It requires mens rea that requires consciousness that goes beyond the actus reas of the offence.

E.g burglary

77
Q

What is the actus reas of burglary?

A

Entering the building as a trespasser

78
Q

What is the basic mens rea for burglary?

A

Knowledge to the facts that make the defendant a trespasser

79
Q

What is the ulterior mens rea for burglary?

A

The intention to commit one of the offences specified in s.9(2)

80
Q

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?

A

Yes. He does not need to commit the offences in S.9(2) to be guilty of burglary

81
Q

What are the 2 types of intention?

A

Direct

Oblique

82
Q

What is oblique intent also called?

A

Indirect intent

83
Q

What is direct intention?

A

Where the defendant desires to bring about a particular outcome

84
Q

What is indirect (oblique) intention?

A

Where a defendant does not desire a particular outcome

85
Q

What is the case law concerned with regarding oblique intention?

A

The degree inevitability or probability that is necessary (before and outcome) which the defendant foresees

86
Q

What degree of foresight of probability or inevitability is necessary before a foreseen result can be said to have been intended?

A

Anything less than 100% certainty is an assumption of a risk which constitutes recklessness not intention

100% certainty constitutes intention

87
Q

Proposal for reform. The Law Commission published a report in 2006 titled Murder, manslaughter and infanticide

A

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
Q

When is a person negligent?

A

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
Q

When will malice not be transferred?

A

When the defendant intends to commit the actus reas of one offence but actually commits another offence.

90
Q

What is the general rule for actus reas and mens rea?

A

They must coincide in time

91
Q

What exceptions are there to the actus reas general rule?

A

A continuing act

A dangerous situation where he is under a duty to act

92
Q

Is homicide an offence?

A

It is an umbrella covering different offences. It means the killing of a human being

93
Q

Are all killings illegal?

A

No. Not all killings attract criminal liability

94
Q

What are examples of non criminal killings of a human being? Are these still regarded as homicide?

A

Accidental killing
Self defence

Yes

95
Q

Key offences of unlawful homicide

A

Murder

Manslaughter

96
Q

The actus reas of ‘the unlawful killing of a human being’ is the definition of what offence?

A

Murder

Manslaughter

97
Q

Are manslaughter and murder common law offences or statutory offences?

A

Elements of these offences have been modified by parliament and the penalties are statutory.

98
Q

What year is the Homicide Act?

A

1957

99
Q

How the death penalty reformed?

A

Murder Abolition of Death Penalty Act 1965

100
Q

What is the maximum penalty for manslaughter?

A

Life imprisonment

101
Q

What is the difference between murder, involuntary manslaughter, and voluntary manslaughter?

A

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
Q

What are the 3 points of minimum sentencing for a life sentence?

A

Whole life
30 years
15 years

103
Q

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

A

Consent

Individuals may refuse to consent to treatment but have no right to implicate others in the positive act of killing

104
Q

Homicide is a result crime. Explain

A

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
Q

What must prosecution show in homicide?

A

That there has been an exelleration in death which is more than insignificant

106
Q

At what point does human life start?

A

Birth

107
Q

When does a phoetus become a human being?

A

When it is wholly expelled from the mother.

108
Q

If a phoetus dies while being born is it a human being?

A

No

109
Q

What is necessary for a baby to be classed a living human being?

A

To have a separate existence from its mother

110
Q

When does human life end?

A

When a human being stops breathing
The heart stops pumping
The brain seizes to function

111
Q

When can life support be removed without any consequence to the patient?

A

When the brain is dead

112
Q

What is person defined as who has suffered brain death?

A

Legally dead

113
Q

What distinguishes murder from involuntary manslaughter?

A

Mens rea

114
Q

What is implied malice?

A

Where there is intention to cause some serious injury but doesn’t contemplate the victim will be killed

115
Q

How does the Draft Criminal Code 1989 define murder?

A

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
Q

What are the partial defences to murder?

A

Loss of self control
Diminished responsibility
Suicide pact

117
Q

When must the partial defences for murder be considered

A

When mens rea has established

118
Q

What happens if a partial defence is successful in a trial for murder? Is there an acquittal?

A

No. The charge is reduced to voluntary manslaughter

119
Q

What are the 3 triggers set out in section 55 of the Coroners and Justice Act 2009?

A

The fear trigger
The combined trigger
The anger trigger

120
Q

What is the definition if diminished responsibility?

A

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
Q

What kind of defence is diminished responsibility?

A

A special partial defence

122
Q

Who bears the burden of proving the defence of diminished responsibility?

A

The defendant

123
Q

What is the standard if proof for diminished responsibility?

A

On the balance of probabilities

124
Q

What reform does the Law Commission Report 304 propose for murder?

A

The division between murder and manslaughter should be replaced by a 3 tier division
First degree murder
Second degree murder
Manslaughter

Criminal Law (11 decks)

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