Criminal Law Flashcards
1
Q
Goals of criminal law
A
- Punishment
- Incapacitation
- Deterence
- Rehabilitation
2
Q
Evidential burden
A
Applies to certain defences e.g. self-defence
If the defence raised the issue of self-defence and provides sufficient evidence the prosecution has the burden of disproving it
3
Q
When is the burden of proof is on the defence?
A
When they defendant raises certain defences:
- Insanity
- Diminished responsibility
Burden of proof is on the balance of probabilities
4
Q
Actus reus
A
5
Q
Actus reus
A
Physical element of offence (the act)
6
Q
Mens rea
A
Mental element of offence
7
Q
Actus reus and mens rea must occur at the same time
A
8
Q
Strict liability offences
A
No mens rea requirement
Offence committed if actus reus is complete
9
Q
Actus reus + mens rea - defences = guilt
A
10
Q
Elements of liability: actus reus
A
Conduct (always)
- Acts and behaviour
- Omissions: breach of duty to act
Circumstance (doesn’t apply to all offences)
Outcome (only applies to result crimes)
- Causation must be satisfied (both elements)
a. Factual causation: but for test
b. Legal causation: substantial and operative test
11
Q
Elements of liability: actus reus - duty to act
A
- Statute: requires positive action
- Special relationship: parent
- Voluntary assumption of duty of care
- Contract
- Defendant created dangerous situation and is aware of it (two elements)
12
Q
Elements of liability - actus reus: legal causation
A
- Substantial: defendant’s conduct was more than minimal
- Operative: no break in chain of causation
13
Q
Elements of liability - actus reus: break in chain of causation
A
- Vicitm: if behaviour is so daft as to be unforeseeable - a court will rarely permit the behaviour of a victim to break the chain of causation
- Third party: if act is free, deliberate and informed
- Medical intervention: if so bad and so independent of original injury
14
Q
No break in chain of causation
A
- Victim’s pre-existing conditions (thin skull rule)
- Victim’s religious beliefs
15
Q
Mens rea
A
State of mind that the defendant must have at the time of committing the actus reus in order to be guilty
16
Q
Mens rea: intention
A
- Direct intention: defendant’s aim or purpose
- Indirect intention (oblique intention)
a. Outcome was a virtual certainty (objective)
b. Defendant foresaw that it was a virtual certainty (subjective)
Only available for specific intent offences -where recklessness is not available as a form of men’s rea - it never applies to basic intent offences - only applies when intention is only form of men’s rea available -
17
Q
Transferred malice
A
Defendant has mens reas needed for the offence but it is directed at a different victim/item e.g. swing for husband but hit mistress instead
Only applies when the offence committed is of the same type as the one intended
18
Q
Mens rea: recklessness
A
- Defendant forsees risk
+ - Under circumstances known to defendant, risk is unreasonable one to take
19
Q
Indirect intention and recklessness are mutually exclusive
A
20
Q
Murder
A
Causing the death of a human being, unlawfully with intention to kill or cause GBH
- Causing (factual and legal causation)
- Death of human being (feautus not included)
- Unlawful (no legal excuse e.g. killing during war)
- With intention to kill or cause grievous bodily harm
21
Q
Voluntary manslaughter
A
Defendant has satisfied the actus reus and mens rea of murder but there is a partial defence:
- Diminshed responsibility
- Loss of control
22
Q
Voluntary manslaughter: diminished responsibility
A
- Abnormality of mental functioning (at time of offence)
+ - From recognised medical condition (alcohol dependency, depression and premenstrual stress all accepted)
+ - Abnormality substantially impairs defendant’s ability to:
- Understand their conduct OR
- Form a rational judgement OR
- Exercise self-control
+ - Abnormality explains killing
Burden of proof on defendant on the balance of probabilities
23
Q
A
- Defendant is unable to restrain themselves
+ - Caused by qualifying trigger
- Fear of serious violence (to defendant)
OR
- Things said or done which constitute circumstances of extremely grave character giving defendant a justifiable sense of being seriously wronged
- Hypothetical person of the defendant’s age and sex might have reacted the same way
Loss of control MUST be disproved by prosecution beyond reasonable doubt
24
Q
Involuntary mansalughter
A
Defendant does not intend to kill or cause GBH
Two types:
1. Unlawful act manslaughter:
2. Gross negligence manslaughter
25
Involuntary manslaughter: unlawful act manslaughter
Defendant commits some kind of dangerous criminal act which ends up causing victims death
Four parts:
1. Act is intentional
2. Act is unlawful (underlying criminal offence e.g. battery)
3. Act is dangerous (some harm)
4. Causation (factual and legal)
26
Involuntary manslaughter: gross negligence manslaughter
1. Duty of care
+
2. Breach of duty of care
+
3. Causation (factual and legal)
+
4. Serious risk of death (not just harm)
+
5. Breach amounts to gross negligence
27
Assault
- Intentionally OR recklessly (mens rea)
- Causing another person to apprehend (a belief rather than a fear)
- Immediate unlawful violence
Words alone are enough for assault BUT words can be used to negate assault
28
Battery (common assault by battery)
- Intentionally OR recklessly (mens rea)
- Applying unlawful force
- On another person
Unlawful = without consent - most common defence = consent
Merest touch is enough
Can be committed indirectly e.g punch someone holding baby who then drops the baby - defendant liable for battery on the baby and individual holding the baby OR getting vicious dog to attach a passerby
Can be committed by omission (doesn't require a positive act) e.g.
29
Assault occasioning actual bodily harm (ABH)
- Assault OR battery (actus reus and mens rea in full for either offence)
+
- Causation (factual and legal)
+
- ABH - injury sustained (bruising, swelling, short period of loss of consciousness, diagnosed psychiatric injury etc.)
a. Calculated to interfere with health or comfort
b. More than transient or trifling
(no additional mens rea requirement)
30
Grievous bodily harm (GBH) - s20 and s18: actus resus same for both BUT mens rea different
31
Grievous bodily harm (GBH): actus reus
- Cause a wound (both layers of skin broken - blood) OR cause GBH (serious harm e.g. broken bones, short period of loss of consciousness, serious psychiatric injury etc)
- must consider factual and legal causation
+
- Injury is unlawful
32
S20 GBH: mens rea
- Intention OR recklessness
- Regarding SOME harm (doesn't need to forsee the type or seriousness of the harm actually caused)
33
S18 GBH: mens rea
- Intention to
- Cause SERIOUS harm OR
- Resist arrest
34
A victim can't consent to injury - consent is not a defence to injury but there are exceptions
35
When consent is defence to injury
- Surgery
- Body modification (tattoos, piercings etc.)
- Religious practice (circumcision etc.)
- Sporting activities
- Horseplay
- Sexual gratification
36
Theft
- Appropriation (assuming any of the rights of the owner e.g. touching, holding or trying to remove item is enough )
- Property (money, intangible property, real property, personal property)
- Belonging to another (possession OR control)
- Dishonestly: objective standards of reasonable and honest people
- Intention to permanently deprive (treat property as own regardless of true owner's rights)
37
Presumption of honesty if person believes they:
1. Are entitled to property in law
or
2. Would have owner's consent
or
3. Could not find true owner by taking reasonable steps
38
Robbery
- Theft (actus reus and mens rea)
+
- Use of force OR putting/seeking to put victim in fear of force
+
- In order to steal
39
Burglary
- Enter (partial entry e.g. head in window is sufficient)
- Building or part of a building
- As trespassor
- Knowing or being reckless about being a trespasser
40
Burglary under 9(1)(a)
- Entry with intent to commit:
a. Theft
b. GBH
c. Criminal damage
Commission of offence is at point of entry there is no need to go on to commit the underlying offence as long as there is intent at point of entry
41
Burglary under 9(1)(b)
- After entering, defendant
a. Commits or attempts theft OR
b. Commits or attempts GBH
42
Mens rea is crucial for determining whether defendant has committed a 9(1)(a) or 9(1)(b) burglary
43
Aggravated burglary
- At time of burglary, defendant possesses
a. Firearm or imitation firearm
b. Weapon of offence
c. Explosive
No mens rea attached to weapon so prosecution do not need to prove any intent to use the weapon
Distinguishing 9(1)(a) and 9(1)(b):
9(1)(a): defendants needs to have the weapon at the time of entry
9(1)(b): defendant needs to have the weapon at the time of committing the underlying offence
44
Fraud by false representation
- Dishonestly make false representation (a statement as to fact, law or state of mind)
- With intent to
a. Make gain for defendant or another OR
b. Cause of risk loss to another
45
Fraud by false representation: mens rea
- Dishonesty (objective)
- Knowledge representation is false or misleading
- Intention to make gain, cause loss or risk loss
46
Fraud by failure to disclose
- Legal duty to disclose information
- Failure to disclose information
- Dishonesty
- Intention to make gain, cause loss or risk loss
47
Fraud by abuse of representation
- Position with duty to safeguard other interests
- Abuse that position (by omission or action)
- Dishonesty
- Intention to make gain, cause loss or risk loss
48
Criminal damage
- Intentional or reckless
- Destruction or damage
- Of property belonging to another (tangible property e.g. land, personal property, money, tamed animals, etc.)
- Without lawful excuse
49
Defences to criminal damage
- Honest belief owner would consent (subjective)
- Honest belief property needs protection (subjective)
50
Aggravated criminal damage
- Basic criminal damage
+
- Intentional or reckless
- Endangerment to life (no life needs to be endangered)
- By damage to property (doesn't have to be another's property can be own)
51
Arson
Criminal damage by fire
52
Children under 10 cannot be criminally liable
53
Unfitness to plead
- Defendant unable to
a. Comprehend court proceedings
b. Challenge jurors
c. Comprehend evidence
54
Principle offender
Commits actus reus and has relevant mens rea at the same time
55
Accessorial liability
Aid, abet, counsel or procure offence
Aiding: assisting at scene of offence and at time of offence e..g get away driver
Abetting: providing encouragement or incitement at scene and at time of offence
Counselling: advice or encourage
Procuring: producing by endeavour
56
Mens rea for liability
Intention to assist or encourage principal's commission of crime
57
Joint enterprise
Party is liable where they agree to commit one offence with the principle offender as co-principles but during course of commission of offence, the principle goes on to commit a different offence
58
Inchoate offences = incomplete offences
59
Inchoate offences: attempt
- Act more than merely preparatory towards commission of offence (actus reas)
- Intention to commit full offence (mens rea)
60
Inchoate offences: attempt - impossibility
Factual impossibility is not a defence to attempt and so the defendant can still be found guilty
Legal impossibility will avoid liability
61
Inchoate offences: conspiracy
Actus reus:
- Agreement
- Between two or more parties
- To carry out an offence
Mens rea:
- Intention to be party to agreement
- Intention to complete offence
62
Who cannot conspire?
- Children under the age of criminal liability
- Spouses
- Victims
63
Intoxication
Defendant didn't form mens rea to commit offence
Not a defence
64
When intoxication can be a defence?
1. Involuntary intoxication
2. Non-dangerous substance (dangerous = illegal drugs and alcohol)
3. Specific intent offence (can only be committed intentionally and not recklessly)
65
When intoxication can be a defence?
1. Involuntary intoxication
2. Non-dangerous substance (dangerous = illegal drugs and alcohol)
3. Specific intent offence (can only be committed intentionally and not recklessly)
66
Drunken intent is still intent
67
Self-defence
- Protecting self, another or property
- Preventing crime
- Effecting arrest
68
