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FLK2 > Criminal Law > Flashcards

Criminal Law Flashcards

1
Q

Goals of criminal law

A
  • Punishment
  • Incapacitation
  • Deterence
  • Rehabilitation
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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

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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

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4
Q

Actus reus

A
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5
Q

Actus reus

A

Physical element of offence (the act)

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6
Q

Mens rea

A

Mental element of offence

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7
Q

Actus reus and mens rea must occur at the same time

A
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8
Q

Strict liability offences

A

No mens rea requirement

Offence committed if actus reus is complete

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9
Q

Actus reus + mens rea - defences = guilt

A
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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

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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)
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12
Q

Elements of liability - actus reus: legal causation

A
  1. Substantial: defendant’s conduct was more than minimal
  2. Operative: no break in chain of causation
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13
Q

Elements of liability - actus reus: break in chain of causation

A
  1. 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
  2. Third party: if act is free, deliberate and informed
  3. Medical intervention: if so bad and so independent of original injury
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14
Q

No break in chain of causation

A
  1. Victim’s pre-existing conditions (thin skull rule)
  2. Victim’s religious beliefs
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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

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16
Q

Mens rea: intention

A
  1. Direct intention: defendant’s aim or purpose
  2. 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 -
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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

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18
Q

Mens rea: recklessness

A
  1. Defendant forsees risk
    +
  2. Under circumstances known to defendant, risk is unreasonable one to take
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19
Q

Indirect intention and recklessness are mutually exclusive

A
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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
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21
Q

Voluntary manslaughter

A

Defendant has satisfied the actus reus and mens rea of murder but there is a partial defence:

  1. Diminshed responsibility
  2. Loss of control
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22
Q

Voluntary manslaughter: diminished responsibility

A
  1. Abnormality of mental functioning (at time of offence)
    +
  2. From recognised medical condition (alcohol dependency, depression and premenstrual stress all accepted)
    +
  3. Abnormality substantially impairs defendant’s ability to:
    - Understand their conduct OR
    - Form a rational judgement OR
    - Exercise self-control
    +
  4. Abnormality explains killing

Burden of proof on defendant on the balance of probabilities

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23
Q
A
  1. Defendant is unable to restrain themselves
    +
  2. 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

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24
Q

Involuntary mansalughter

A

Defendant does not intend to kill or cause GBH

Two types:
1. Unlawful act manslaughter:
2. Gross negligence manslaughter

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25
Q

Involuntary manslaughter: unlawful act manslaughter

A

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)

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26
Q

Involuntary manslaughter: gross negligence manslaughter

A
  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
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27
Q

Assault

A
  • 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

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28
Q

Battery (common assault by battery)

A
  • 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
Q

Assault occasioning actual bodily harm (ABH)

A
  • 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
Q

Grievous bodily harm (GBH) - s20 and s18: actus resus same for both BUT mens rea different

A
31
Q

Grievous bodily harm (GBH): actus reus

A
  • 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
Q

S20 GBH: mens rea

A
  • Intention OR recklessness
  • Regarding SOME harm (doesn’t need to forsee the type or seriousness of the harm actually caused)
33
Q

S18 GBH: mens rea

A
  • Intention to
  • Cause SERIOUS harm OR
  • Resist arrest
34
Q

A victim can’t consent to injury - consent is not a defence to injury but there are exceptions

A
35
Q

When consent is defence to injury

A
  • Surgery
  • Body modification (tattoos, piercings etc.)
  • Religious practice (circumcision etc.)
  • Sporting activities
  • Horseplay
  • Sexual gratification
36
Q

Theft

A
  • 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
Q

Presumption of honesty if person believes they:

A
  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
Q

Robbery

A
  • Theft (actus reus and mens rea)
    +
  • Use of force OR putting/seeking to put victim in fear of force
    +
  • In order to steal
39
Q

Burglary

A
  • 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
Q

Burglary under 9(1)(a)

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
Q

Burglary under 9(1)(b)

A
  • After entering, defendant
    a. Commits or attempts theft OR
    b. Commits or attempts GBH
42
Q

Mens rea is crucial for determining whether defendant has committed a 9(1)(a) or 9(1)(b) burglary

A
43
Q

Aggravated burglary

A
  • 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
Q

Fraud by false representation

A
  • 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
Q

Fraud by false representation: mens rea

A
  • Dishonesty (objective)
  • Knowledge representation is false or misleading
  • Intention to make gain, cause loss or risk loss
46
Q

Fraud by failure to disclose

A
  • Legal duty to disclose information
  • Failure to disclose information
  • Dishonesty
  • Intention to make gain, cause loss or risk loss
47
Q

Fraud by abuse of representation

A
  • 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
Q

Criminal damage

A
  • 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
Q

Defences to criminal damage

A
  • Honest belief owner would consent (subjective)
  • Honest belief property needs protection (subjective)
50
Q

Aggravated criminal damage

A
  • 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
Q

Arson

A

Criminal damage by fire

52
Q

Children under 10 cannot be criminally liable

A
53
Q

Unfitness to plead

A
  • Defendant unable to
    a. Comprehend court proceedings
    b. Challenge jurors
    c. Comprehend evidence
54
Q

Principle offender

A

Commits actus reus and has relevant mens rea at the same time

55
Q

Accessorial liability

A

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
Q

Mens rea for liability

A

Intention to assist or encourage principal’s commission of crime

57
Q

Joint enterprise

A

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
Q

Inchoate offences = incomplete offences

A
59
Q

Inchoate offences: attempt

A
  • Act more than merely preparatory towards commission of offence (actus reas)
  • Intention to commit full offence (mens rea)
60
Q

Inchoate offences: attempt - impossibility

A

Factual impossibility is not a defence to attempt and so the defendant can still be found guilty

Legal impossibility will avoid liability

61
Q

Inchoate offences: conspiracy

A

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
Q

Who cannot conspire?

A
  • Children under the age of criminal liability
  • Spouses
  • Victims
63
Q

Intoxication

A

Defendant didn’t form mens rea to commit offence

Not a defence

64
Q

When intoxication can be a defence?

A
  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
Q

When intoxication can be a defence?

A
  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
Q

Drunken intent is still intent

A
67
Q

Self-defence

A
  • Protecting self, another or property
  • Preventing crime
  • Effecting arrest
68
Q
A

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