Criminal Law Flashcards
Strict Liability Offence
When an individual breaks the law without intending to and still be prosecuted eg: by selling items to somebody under age
List of some crimes
Theft Robbery Murder Manslaughter Fraud Bribery Blackmail Rape/Sexual Assault Sexual exploitation of children Prostitution Assault Drug dealing Piracy Vandalism
Criminal Law
A body of rules and statutes that defines conduct prohibited by the government because it threatens and harms public safety and welfare and that establishes punishment to be imposed for the commission of such acts
Retributive Justice
Focus on the punishment for the crime
Corrective justice
Liability rectifies the injustice inflicted by one person to another
Statute Law
Laid down by parliament
Common Law
Laid down by judges
Actus Reus
Refers to the alleged act itself
Mens Rea
The mental element of the act of the degree of intent
what factors can defendant’s use as a form of defence to later change the verdict to ‘not guilty’
Insanity Intoxication Duress Necessity Automatism
What happens when the defendant raises a defence
Responsibility shifts and defendant must prove that defence
Standard Burden of Proof
In criminal cases needs to be by ‘beyond reasonable doubt’. Burden of proof is on the prosecution to prove that the actus reus and mens rea were both there when the offence was committed.
Rules that relate to standard burden of proof in English law
It is up to the prosecution to prove the case
Guilt must be proved beyond reasonable doubt
Any reasonable doubt can be raised from either the prosecution or the defence
These rules apply to all criminal cases and must be applied to all criminal courts
Automatism
Where you are not in control of your actions via an external source
Duress
Threat and violence against someone to pressure them into doing something eg: held at gunpoint to kill someone else or you die
Necessity
Where in order to avoid a serious outcome the law is broken
Woolmington v. DPP
the problem in this case is that whereas the prosecutor is expected to prove D guilty in this case D was used to prove the killing of his wife had been an accident. Therefore woolmington was acquitted
Conduct Crime
Is where the actus reus is the prohibited conduct itself. There does not have to be a consequence
Marchant and Muntz (2003)
Not an offence because:
He had the right to be on the road with a tractor
The death was an accident
There was no action on the part of the driver that lead to the accident
State of affairs
Is where the actus reus is simply the act in itself. The mens rea does not need to be considered
R v. Larsonneur (1933)
Is a case where the defendant involuntarily enters the state of affairs
R v. Mitchell (1983)
In Mitchell we can see that there must be a chain of events where somebody is responsible for a starting point
Omission
Where you fail to do something or you can fail to act in a certain way
Statutory Duty
When an Act of Parliament creates liability when there is an omission on offence can be given for ‘failing to do something’
Examples of Statutory Duty
Failing to stop or report a traffic incident
Failure to submit a breath test
Failure to provide necessities for a child under your control
Contractual Duty
where you have a duty of care in your job eg. a lifeguard leaving his post causing someone to drown
Relationship Duty
Where either a parent or child relationship operates or the other way round such as a child caring for an elderly relative
Cases where duty has been taken on voluntarily
R v. Steve and Dobinson (1977)
R v. Evans (2009)
Dytham Case (1979)
Contractual duty as an officer to serve
R v. Miller (1983)
Had a duty to stop the fire
DPP v. Santa-Bermudez (2003
Failure to tell officer about the needle in his pocket
Airedale NHS Trust v Bland (1993)
Contractual duty as a doctor to heal and tend to the case of the patients
Factual Cause
The consequences would not have happened but for the actions of the defendant eg R v. Pagette
Legal Cause
Where there may be more than one factor involved meaning all of them have to be investigated in order to determine if there was more than a minimal case
Multiple Causes
The defendant can be guilty even if their conduct was not the only cause of the consequences
The ‘thin skull’ rule
If the victim suffers an even greater injury to their physical or mental state. In other words they suffer more than a normal person would, the defendant is liable for the injury
R v. Pagette
But for Ds actions the girlfriend wouldn’t have been shot by the police
R v. Hughes
Court decided the victim though driving under the influence of heroin was more of a cause in his own death than the driver without a full drivers license
R v. Kimsey
It was Ds driving that was the main cause of death
Intervening Acts
If something superset happens between the defendant’s conduct and the end consequence this is called the ‘break in the chain of causation’
D Injures V -> V injured in ambulance crash -> V dies
Cases relating Medical Treatment
R v. Smith (1959)
R v. Chestshire (1991)
R v. Jordan
R v. Smith
2 soldiers had a fight and 1 was stabbed. The medical staff conducted CPR on him lowering his survival rate by 75%
Proves the intervening act would not be held liable because it would not have happened but for the original act that initiated the chain of events
R v. Chestshire
V was shot by D causing him to have breathing problems requiring to have a tracheotomy. V dies from the complications.
The decision held the defendant guilty for the original act meant that it only had to be proven that D had contributed to the victims death
R v. Jordan
Victim stabbed in the stomach and the antibiotic he was given gave him an allergic reaction resulting in his death. The medical care was poor hence why it was judged as the main cause of death
Victim’s Own Act
Liability applies here when the defendant causes the victim to act In such a way that they injure themselves
R v. Roberts (1972)
A girl jumped out the car to escape Robert’s sexual advances
R v. Marjoram (2000)
Several people including D shouted abuse and kicked Vs door down. V saw no other option but to leap out of the room window resulting in severe injury
Unreasonable Reaction
If the victim reacts in a disproportionate or unreasonable way to a threat and in doing so injures or kills themselves then the chain of causation may be broken eg. R v. Williams and Davis (1992)
Nomus Actus Intervienes
Latin for new intervening act and is an event so unforeseeable it overshadows the original event
What is Mens Rea
Concerns regarding the defendants state of mind when the incident occurs
R v. Clarke (1972)
The defendant proved she suffered from absent-mindlessness and depression she was acquitted of theft
Intention and Motive
The highest level of mens rea is intention. In other words the defendant must have had in his mind to bring out a particular consequence eg. Mohan (1975)
Direct intent
Where you directly intend to commit an offence eg. D points a gun at Vs head and shoots
Oblique Intent
Where you intend to do one wrong thing however the outcome that occurred was unexpected however still an offence eg. Hancock and Shankland (1986)
Recklessness
When somebody decides to do something they know is a risk and that might lead to a serious consequence eg. Pushing a concrete block off a bridge onto a running highway
Foresight of consequence
When the defendant knows that outcome of a particular situation yet still commits the act. If prosecution proves this the defence is proven guilty
Natural Consequence
A consequence that might occur
Probable Consequence
A consequence that most likely WILL happen
Maloney (1985)
The outcome of this case is that foresight of a consequence such as it was probable somebody might die however the consequence cannot prove intention to kill however this can be used to prove the intent to kill
Maloney Rules
Was death or really serious injury a natural consequence of the defendants act?
Did the defendant foresee that consequence as being a natural result of his act?
Woolin (1998)
A problem of the woolin case caused the wording to be changed from ‘infer’ to ‘find’
Problems of using foresight of consequences as intention
There is difficulty in defining the concept of intention where foresight of consequences is concerned eg.
- Difficulty for jurors to apply tests after Maloney and Hancock
- The change in Woolin from inferring intention to finding intention
- The fact there are 2 different interpretations of Woolin
How did the Court of Appeal interpret the foresight of consequence
Stated it is impossible to prove intent as when they threw V off the bridge. They never intended to save him as they left before they saw if V reached safety or not
Subjective Recklessness
Lower level of mens rea. The defendant knows the risk of a consequence but takes the risk anyway eg. Cunningham (1957)
Negligence
Lower level of intention and recklessness. Defined as failing to meet the standards of a reasonable person eg Driving without due care or intention
No Fault
A defendant can also be convicted however only if his voluntary act resulted in an unforeseen prohibited circumstance
Statutory Interpretation
When parliament passes a law about something. Sometimes the wording may not be clear or ambiguous hence we need a judge to interpret it
Dangerous Dogs Act
Banned possession of pitbull terriers and ‘similar breeds’. Not specific enough therefore caused issues.
Problems with statutory interpretation
Unless something is explicit regarding that mens rea in not necessary we must always assume mens rea is applicable
The wording of an act may also need to be examined in case there are sections which apply to strict liability or the defence of due diligence
Gammon Ltd V. Attorney General of Hong Kong (1985)
Hong Kong used to be a British Dependancy until 1997
The appellant was a builder who had deviated from the plans of a building. It was an offence to deviate from the plans in a substantial way. However he stated that the deviation was minor
What was held in Gammon Ltd V. Attorney General of Hong Kong (1985)
The offence was one of strict liability and therefore his belief was irrelevant and his conviction was upheld
Penalty of imprisonment
If the penalty is prison then it is seen as a truly criminal offence. However if it is a fine or community service then it is strict liability
Issues of social concern
This can include health and safety regulations, food and drink, pollution, possession of guns etc
R v. Blake (1977)
D was a disc jockey who was convicted of using a station for wireless telegraphy without a license. Case was ruled as one of strict liability
Lim Chin Aik v. The Queen (1963)
The matter was to do with a man who had illegally entered Singapore and his point was he did not realise this and that he hadn’t been told. Ruled as a strict liability offence
The Privy Council
are government ministers that along with other figures such as politicians advise the queen at he request about certain laws
Judicial of the privy council
This is when the judges of the Supreme Court will hear appeals coming from British overseas territories as well as commonwealth countries
Transferred Malice
The defendant can be guilty if he intended to commit a crime against one person but a similar outcome affects another
Latimer (1886)
D aimed a blow at a man in a pub. The belt bounced off the man and struck a woman in the face. D was found guilty of assault
Defence against transferred malice
If the defendant mens rea is completely different offence to the actual outcome then they may not be found guilty
Gnango (2011)
Bandana man attempts to shoot at gnango. Gnango shoots back at bandana man and within the crossfire a woman is killed by bandana man
General Malice
Is where the defendant may not have a specific victim in mind eg a terrorist may plant a bomb in a public place with the intent of merely killing people
Continuing Act
Refers to the actus reus coming first but then the mens rea appearing at some stage in the act itself
Fagan v. Metropolitan Police (1986)
The legal point is that fagan did not realise he had drove over the police man’s foot however when told to stop he refused to move
Common Assault
Battery and Assault
AR of Assault
Threatening violence to an individual
MR of Assault
Intention or subjective recklessness
AR of Battery
The merest infliction of force or violence
MR of Battery
Intention or subjective recklessness
Hierarchy of non-fatal offences against a person
Section 18 GBH with intent
Section 20 GBH inflicting/wounding
Section 47 ABH assault causing actual bodily harm
Common Assault
Section 47 ABH AR
Common assault resulting in injury/wounding
Section 47 ABH MR
Intent to commit GBH
Section 20 GBH AR
wounding or inflicting great bodily harm
Section 20 GBH MR
Intent to cause harm
Section 18 GBH AR
Inflicting grievous bodily harm or wounding
Section 18 GBH MR
Intent to cause grievous bodily harm
R v. Nelson (2013)
Defines assault as something of a physical kind (vocal threat, silent phone call, imitating a violent action) that causes somebody to think that they are about to be struck
Cases relating to assault and battery
R v. Ireland
R v. Constanza
Apprehend immediate unlawful force
The victim needs to think that the threat of force is real and possible
R v. Lamb (1967)
Pointing an unloaded gun at someone who knows the gun is unloaded is not assault however contrary if the victim did not know that the gun was unloaded
Smith v. Chief Superintendent of Woking police station
The force threatened must also be unlawful. If it is lawful then it is not an offence
Collins v. Wilcock
Wood v. DPP
‘Force’ can include the slightest touch
R v. Thomas (1985)
The court of appeal said in the obiter that touching and rubbing the bottom of a woman’s skirt while she was wearing it was equivalent to touching her
Ratio Decidendi
The actual judgment given by the judge
Obiter Dicta
Not a part of the actual judgment, not binding but it’s where a judge might make similar suggestions for any future cases
Indirect Act
In an indirect act the defendant causes force to be applied even though he hasn’t directly applied it himself eg: setting a booby trap
Omission
The act of failing to do something
The use of force does not mean battery if
Victim gives genuine consent
In use of self defence
Prevention of crime
The Children Act 2004
Provides that battery against children is unlawful if it results in any injury
Miller (1954)
Any hurt or injury calculated or interfere with the health or comfort of the victim. In relation to assault causing actual bodily harm
T v. DPP (2003)
The loss of consciousness was the ABH. Depending in the ABH the maximum sentence is 5 years
Persons Act 1861
Only refers to physical injury and assault. Now it includes psychiatric damages
Psychiatric injury
Classifies as ABH but does not include emotions like fear, distress or panic
R v. Burstow (1997)
Psychiatric injury. Would not have been considered in 1861. Courts have interpreted NFO in a different manner
R v. Dica (2004)
Deliberate infection with a disease
Law Commission
Is an independent body set up by Parliament whose job it is to review the law and publish suggestions for reform as well as to carry out government reviews of the law
4 key needs for reformation of NFO
The 1861 OAPA is out of date
There are inconsistencies between the different offences
No conformity in the correspondence principle
Much of the language used is archaic
The out of date factor
There was no understanding of mental health problems at the time therefore only a mention of bodily harm and not mental harm
Inconsistency between offences
S47 has the same mens rea as an assault and battery
S47 carries a maximum sentence of 5 years whereas assault and battery only 8 months
The 1998 Draft Bill
A document issues by the labour government with the intention of replacing S18, 20 and 47 as well as assault and battery. Consisted of 4 clauses: .Intentional serious injury .Reckless serious injury .Intentional or reckless injury .Definition of assault
Bill
A proposal for a new law to replace an old law
Law Commission Report 2015
Agreed with the 1998 reform bill however suggested some additions to the clauses
