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Criminal Law Flashcards

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1
Q

What 2 elements are needed to be proved to show the defendant is guilty?

A

Actus Reus - Physical element (act)
Mens Rea - Mental element (Intent, thought, failure to think)

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2
Q

What constitutes an actus reus?

A

Must be a voluntary act. - If D has no control over actions there is no AR -Hill V Baxter 1958 - D claimed to be in a state of automaton whilst driving. He was convicted as there was no evidence of this and the court gave examples where a driver could not be doing an act voluntarily (Swarm of bees, hit over head with a stone or having a heart attack)
State of Affairs - Rare instances where D was convicted because of an involuntary act-R V Larsonneur 1933 - D forced to leave UK so went to Ireland and was brought back to UK by the Irish police
Omissions - Rare as usually an AR has to be an act. - These can be counted as AR through: -Acts of Parliament - many of these concern issues of public safety (building standards, pollution) Known as offences of strict liability. -Contractual Duty - R V Pitwood 1902 - railway-crossing keeper omitted to shut the gates and so a person was killed. Convicted of manslaughter -Duty exists due to a relationship - R V Gibbins & Proctor - A child’s father failed to feed them and so they died. Guilty of murder -Duty from an official position - R V Dytham 1979 - Police officer witnessed a attack on the victim and didn’t intervene or summon help.

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3
Q

What is the ‘but for’ test?

A

The defendant can only be guilty if the consequence would not have happened ‘but for’ the defendant’s conduct.

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4
Q

What is the ‘thin skull rule’?

A

The victim must be taken as they are found. If the defendant has a condition which makes an injury more serious the defendant is liable for the more serious injury
R V Blaue 1975 - Jehovah’s Witness who was stabbed and needed a blood transfusion which is not allowed in her religion and therefore died. The defendant was guilty of murder.

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5
Q

What is the chain of causation?

A

Link between the act of the defendant and the consequence. This must remain unbroken if there is to be criminal liability.

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6
Q

What can break the chain of causation?

A

An act of a third party - (Medical treatment doesn’t count unless it makes the defendants act insignificant
The victim’s act - If the victim’s reaction is unreasonable (R V Willams 1992 - a hitch-hiker jumped from Williams’ car after attempting to steal his wallet. Jumping out seemed an unreasonable response)
Natural Unpredictable event - earthquake, flood, etc.

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7
Q

When is a defendant not at fault for their actions?

A

Child under the age of 10
People insane (Can be detained in a hospital under Mental Health Act 1983)
Involuntary Act (R V Mitchell 1983)
In control of actions but doesn’t have the required mens rea (Accidentally taking the wrong coat from a coat rack)
Self-defence
When threatened if they don’t commit a crime (Gangs etc)

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8
Q

What is intention?

A

Defendant’s motive for doing an act is irrelevant, the defendant still decided to cause an unlawful consequence (Mohan 1975)

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9
Q

What is oblique intent?

A

When the defendant hadn’t intended to cause the criminal offence but it was a ‘virtual certainty’
(Woollin 1999 - Threw a baby, didn’t want to kill it but did)

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10
Q

What is subjective recklessness?

A

Lower level of mens rea than intention. Taking an unjustifiable risk, when the defendant understands the risk but did it anyway - When an offence has the mens rea of intention or recklessness, the prosecution only has to prove recklessness which is often easier
Cunningham 1957 - Defendant tore a gas meter from the wall of an empty house causing a gas leak, which caused problems to a neighbour - decided not guilty since he didn’t realise the risk)

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11
Q

What is negligence in criminal law?

A

When a risk is not realised, and it not being realised is unreasonable

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12
Q

What is strict liability?

A

When there is no requirement for mens rea
Pharmaceutical Society of Great Britain V Storkwain LTD 1986 -Pharmacist supplied drugs for a faked prescription without knowing it was fake and was convicted of supplying drugs without a genuine prescription

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13
Q

What is no fault?

A

When the defendant is totally blameless but can still be convicted
Shah & Shah 1999 - Newsagents told staff not to sell lottery tickets to anyone under 16 but one did and they were convicted

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14
Q

What is transferred malice?

A

If a crime is attempted on one person but affects another (Trying to hit one person, hits another) the mens rea for the intended crime is sufficient
Latimer 1886 - Tried to hit a man with a belt hit a women - convicted of malicious wounding against a woman
When the mens rea is completely different then it may not count
Pembliton 1874 - Tried to throw a stone at someone hit and broke a window. Not guilty as the intended crime and the actual crime not similar enough.

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15
Q

What is coincidence of mens rea & actus reus?

A

Both AR & MR required for a crime
In some cases the courts will view the events as a continuing act, where when AR & MR coincide the defendant is guilty
Fagan 1968 - Accidentally parked on a police officer’s foot, (AR) when told by the police officer he didn’t move (MR) - MR not present for the AR but was afterwards so was continuing

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16
Q

What is the AR for assault?

A

An act that causes fear of immediate unlawful violence.
Threating words (Constanza 1997 - D sent over 800 letters and phone calls with the last 2 letters being threatening)
Spitting (Misalati 2017)
Silent phone calls (Ireland 1997)
There must be the threat of immediate unlawful violence (If someone shouts a threat out of a train then it isn’t as there is no threat of immediate violence) (Pointing an unloaded gun at someone who knows it is unloaded isn’t an assault, if they don’t know it is unloaded it could be an assault)
Immediate doesn’t mean instant but imminent (Smith 1983)

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17
Q

What is the MR for assault?

A

An intention to cause another to fear immediate violence or recklessness causing fear of immediate unlawful violence.

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18
Q

What is the AR for battery?

A

Application of unlawful force to another person, intentionally or recklessly
Can include very slight touches (Collins V Wilcock 1984)
Continuing act - Fagan 1968
Indirect act - Defendant causes force to be applied without personally touching the victim (DPP V K 1990 - Schoolboy put acid in a hand drier which someone then used)
Omission - Really counts but does in DPP V Santa-Bermudez 2003 - Police officer asked if the defendant if he had any sharp objects, he said no but did causing the police officer to cut herself.

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19
Q

What is s47 OAPA 1861?

A

Assault occasioning actual bodily harm

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20
Q

What is the AR for s47 OAPA 1861?

A

An assault/battery causing actual bodily harm. Some activities are exempt (Surgery, Tattooing, Violent Sports)
(Sado-masochism with consent still is ABH as in Brown (1994)) (Extreme body modification with consent also ABH, R V BM 2018)

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21
Q

What is the MR for s47 OAPA 1861?

A

The Act makes no reference to MR, as the essential element of ABH is assault or battery the courts have held that the MR for ABH is the same as the MR for assault or battery

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22
Q

What is s20 OAPA 1861?

A

Malicious wounding or inflicting grievous bodily harm. Without intent to cause GBH (could have intent to cause a lower crime).

23
Q

What is the AR of s20 OAPA 1861?

A

Unlawful wounding (A cut or break in the continuity of the whole skin, internal skin not counted JJC V Eisenhower 1983). Does not require a technical assault or battery as long as the defendant’s actions have led to the victim suffering a GBH (R V Burstow 1997)

24
Q

What is the MR of s20 OAPA 1861

A

Intention to cause some harm or recklessly causing GBH

25
Q

What is s18 OAPA 1861?

A

Malicious wounding or inflicting grievous bodily harm with intent to do some grievous bodily harm

26
Q

What is the AR of s18 OAPA 1861?

A

The same as s20 OAPA 1861

27
Q

What is the MR of s18 OAPA 1861?

A

Must be proved that the defendant intended to do some grievous bodily harm or resist or prevent the lawful apprehension or detainer of any person.

28
Q

Define murder.

A

Given by Lord Coke in 1797: “Murder is the unlawful killing of a human in being within times of peace within the realm with malice aforethought (express or implied)”

29
Q

What is the AR for murder?

A

From the definition:
Killing - death occurs at brainstem death. Malcharek & Steel - a doctor turning of life support isn’t the cause of death but the injury that meant the life support was necessary.
Postive act - D actively does something
Omission - D doesn’t do seomthing (Gibbins & Proctor)
Human in being - a person who is fully expelled from their mother and capable of independant existence. If a foetus is injured, birthed and then dies it is murder (Attorney-General’s Reference 1997)
Unlawful - all intentional killing is unlawful (including mercy killing - Inglis)
In times of peace - killing enemies at war is legal. Military units cannot legally kill on peacekeeping/UN duties or tours etc. (Clegg, Marine A (Blackman))

30
Q

What is the MR for murder?

A

From the definition:
malice aforethought - must have formed the intention before they kill (can be just a moment)
Express malice - D had intention to kill
Implied malice - intended to do a GBH (Cunningham)
Direct intention - D has direct intent if killing or GBH was their desired outcome (Mohan)
Oblique intent - If there is no direct intent but killing was a virtual certainty - Decided through the Woolin Test - outcome virtually certain and D is aware of that. (Matthews & Elaine)

31
Q

What is diminished responsibility?

A

Partial special defence only for murder.
Had AR & MR but was suffering from ill health or mental health condition.
If succesful, murder is swapped for voluntary manslaughter (judge can give any sentence)
Is a statuory defence, defined in s2 Homicide Act 1957 - Requirements set out in s52 Coroners & Justice Act 2009
Defendant must prove 4 things on the balance of probabilities

32
Q

What is requirement 1 of diminished responsibility?

A

s52 (1) - suffering from an abnormality of mental functioning (AMF)
According to Byrne 1960, an abnormality of mind so different from ordinary human beings that the reasonable person would term is abnormal.`

33
Q

What is requirement 2 of diminished responsibility?

A

The AMF must have been caused by a recognised medical condition (RMC).
It is a strict medical test
RMC must be on the WHO list
Can be physical, psychological or psychiatric
D has to produce 2 medical reports

34
Q

What is requirement 3 of diminished responsibility?

A

The AMF substantially impaired Ds ability to do either: - understand the nature of their act, form a rational judgement or control their impulses
According to Khan, the jury decides the level of impairment

35
Q

What is requirement 4 of diminished responsibility?

A

The AMF must provide an explanation for Ds conduct. Must be a causal link (since 2009 Act).
Doesn’t have to be the only cause but must make a substantial contribution. (Osbourne 2010 - D blamed the murder on his ADHD but the jury decided it was the weed and anger that caused it, not the ADHD)

36
Q

Diminished responsibility and intoxication?

A

Acute voluntary intoxication (binge-drinking) is recognised by WHO but Dowds 2012 held this wasn’t acceptable for diminished responsibility as it is voluntary.
If someone has an AMF and is voluntarily intoxicated the the intoxication is ignored and the jut decides if the AMF alone is enough to justify the killing. (Dietschmann - dead aunt)
Alcohol Dependency Syndrome is recognised if the other requirements are met (Wood 2008 - blowjobs and meat cleavers)

37
Q

What is loss of control?

A

Partial special defence for murder, if successful murder substituted for voluntary manslaughter (judge has full range of sentences). Defence raises it and the prosecution must disprove it, jury decides.
Statutory defence created by s54-56 of the Coroners and Justice Act 2009
Jury must be satisfied by 3 elements.

38
Q

What is requirement 1 of loss of control?

A

There must be evidence of the loss of control.
s54(1)(a) - killing must result from the loss of self-control
a54(2) - loss of control no longer need be sudden and immediate (Ahluwalia 1992) - the longer the time delay will effect the jury’s decision
Jewell 2014 - Shot victim, car was found with a survival kit, passport etc. - did not qualify for element 1 as there was insufficent evidence that there was loss of control.

39
Q

What is requirement 2 of loss of contorl?

A

s55(1) - must be caused by a recognised condition. - fear of serious violence - things said or done by the victim which are grave and caused D to have a justifiable sense of being wronged (Camplin)
Sexual infidelity excluded as a trigger (s55(6)) (Clinton), there may be another qualifying trigger.
Self-induced loss of control excluded (Dawes)

40
Q

What is requirement 3 of loss of control?

A

Standard of control test.
Would a normal ordinary person of D’s age, and gender with a normal degree of self-restraint with the same circumstances have reacted in the same way
Largely objective and the jury decides
Asmalesh - D’s voluntary intoxication isn’t taken into consideration.

41
Q

What is unlawful act manslaughter (UAM)?

A

Common law offence.
When there is an unlawful killing but there is no MR for murder.
3 AR requirements and 1 MR.

42
Q

What is AR requirement 1 for UAM?

A

D must have committed a criminal act not a tort (Franklin - D threw a box of a pier, hits and kills a swimmer, not guilty as the box disposal is a civil wrong.) (Lamb 1967 - D and V playing with a gun didn’t know it was loaded, Accident so no crime so no UAM)
Must be a positive act not an omission (Lowe 1973 - neglected child, no positive act so not UAM)
Can be a crime against property or a person. (Mitchell - pushes a person in a post office queue - crime against person) (Goodfellow - set fire to a flat which killed people - crime against property)
Unlawful act can be transferred malice (Larkin 1943 - D waved an open razor at a man, V intervened and died)

43
Q

What is AR requirement 2 for UAM?

A

Unlawful act must be objectively dangerous
Decided through the Church test (Church - D couldn’t get hard, woman laughed he punched her thought she was dead so threw her into the river, she drowned, guilty of UAM)
Church Test - Jury decides whether all sober, reasonable persons would recognise the risk of some harm, albeit not serious harm arising from D’s act.
Risk of physical harm not psychological (Dawson 1985, D held up a petrol station with a fake gun. V had a pre-existing condition and had a heart attack and died - not guilty of UAM as fear isn’t enough)

44
Q

What is AR requirement 3 for UAM?

A

Unlawful act must cause the death. Same as in other criminal law.
death from unlawful drug supply - not counted as taking the drugs is free will (Kennedy 2007 - V given drugs by D but took them wilfully and choked on his sick - not UAM as the V had free will) D may be liable for Gross Negligence Manslaughter depending on the case.

45
Q

What is MR requirement for UAM?

A

It must be proved that the defendant had the MR for the unlawful act, D doesn’t have to know it is illegal or dangerous (DPP V Newbury & Jones 1976 - Ds pushed a paving stone from a bridge onto a train line, a train was coming and it hit and killed a guard - HoL confirmed it was not necessary to probe D foresaw any harm form the act.

46
Q

What is Gross Negligence Manslaughter (GNM)?

A

Unlawful killing where one party owes the other a duty of care and negligently breaches it
Common law offence.
Adomako gave definition confirmed by Broughton - 4 main elements - D owed V a duty of care, breached the duty, breach caused the death, negligence so gross it is criminal.
Duty of care same as civil (Robinson - first look at existing precedent, if new use Caparo test. Singh 199 - landlord duty to tenant, Adomako - doctor to patient, Evans - Parent to child, Litchfield - Captain to crew, Wacker - criminals can be owed a duty.)
Whether the duty is breached is decided by the jury.
At the time of the breach the jury must decide whether a reasonably prudent parson would have foreseen a serious and obvious risk of death, and not merely a risk of injury.

47
Q

What is the defence of insanity?

A

Defence for all MR crimes.
Comes from common law. The rules were created following public outcry following M’Naghten 1843
There are 3 main requirements
Raised by the judge or the defence - if raised by the defence they have the burden of proof.
Must have medical reports.
If successful verdict is ‘not guilty by reason of insanity’ - this isn’t an automatic acquittal and the judge can chose from a rage of sentences (e.g. absolute discharge, term in a secure mental institution).
It is rarely used. (in murder diminished responsibility is more common)

48
Q

What is the definition of insanity?

A

from M’Naghten 1843 - D is presumed to be sane but has a defect of reason caused by a disease of the mind, so didn’t know the nature or quality of their act, or that the act was wrong.

49
Q

What is element 1 of the defence of insanity?

A

Defect of reason
-has to be complete deprivation of powers or reasoning, not just forgetfulness, absentmindedness or confusion (Clarke 1972)

50
Q

What is element 2 of the defence of insanity?

A

Disease of the mind
-comes from case law.
Kemp - disease is physical and mental
Bratty - Epilepsy
Burgess - sleepwalking
Quick - taking insulin without eating is automatism as it has an external cause
Hennessy - not taking diabetes medicine is as it is caused by an internal factor.

51
Q

What is element 3 of the defence of insanity?

A

Not knowing the nature or quality of their act
-includes delusional and psychotic episodes (Codore 1916 - thought she was cutting bread but was cutting her husband’s neck)
Knowing the nature but not that it is wrong.
Windle 1952 - wrong is legally not morally
Byrne 1860 - D couldn’t control himself - didn’t get insanity as he knew what he was doing and that it was wrong.

52
Q

What is automatism?

A

Defence for MR crimes
Seperated into 2 types - insane and non-insane.
Insane follows the M’Naghten rules

53
Q

What is non-insane automatism?

A

Complete defence
The AR is not voluntary and is caused by an external factor and therefore there is no MR.
Hill V Baxter 1958 - defence of automatism not given due to the lack of evidence - judge gave times when automatism would be applicable: becomes unconscious, struck by a stone, or overcome by illness.
There must be a total loss of control set out in Attorney-general’s Reference (No.2 of 1992) (1993)
PTSD counts as automatism as it is caused by external factors.

54
Q

What is self-induced automatism?

A

When D knows their own conduct will cause them to go into an automatic state.
Diabetic not eating after taking insulin (Quick 1973)
when this happens the intoxication rules apply.

Law (5 decks)

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