Criminal Law Flashcards
What is the legal and factual test of causation for AR?
Factual = but for
Legal = the conduct was the operating and substantial cause of that result
- No intervening acts
What are the general rule and exceptions for an omission to act?
General rule = no liability for an omission to act
Exceptions:
1. Special relationship
2. Contractual duty to act
3. Statutory duty to act
4. Voluntary assumption of care
5. Dangerous situation
What constitutes direct and indirect intent for MR?
Direct = aim/desire/purpose
Indirect = outcome was not D’s aim, but a by-product of that aim
a) Was the outcome virtually certain as a result of D’s acts?
b) If so, was D aware of this virtual certainty?
What is the test for recklessness for MR?
- At the time D committed the AR, D was subjectively aware of the risk; and
- In the circumstances known to D, it was objectively unreasonable for D to take that risk - no social utility/benefit in taking it
Explain transferred malice
The malice of D can be transferred from the original victim to the AR they commit against another, as long as the offence is the same
Explain the effect of a mistake on the MR
D can make a mistake of fact which causes them to believe their conduct is innocent
- Eg: mistakenly putting on the wrong coat at a restaurant
While there is no separate defence of mistake, it may prevent the prosecution from proving the necessary MR
Define simple assault and what is the AR and MR?
Any act which intentionally/recklessly causes another person to apprehend immediate and unlawful personal force
AR: causing the apprehension of immediate unlawful personal force
MR: intend or was reckless as to causing the apprehension of immediate unlawful personal force
Define physical assault/battery and what is the AR and MR?
The infliction of force
AR: infliction of personal force
MR: intend/was reckless as to inflicting unlawful personal force
Define s 18 OAPA and its AR and MR
Wounding/causing GBH with intent (to resist/prevent arrest)
AR = wound/cause GBH
MR = intention to cause GBH (plus an intent to resist/prevent arrest)
Define s 20 OAPA and its AR and MR
Malicious wounding/inflicting GBH
AR = wound/cause GBH
MR = intend/reckless as to causing ABH
Define s 47 OAPA and its AR and MR
Assault occasioning ABH
AR = an assault, which occasions/causes ABH
MR = intend/reckless as to causing simple/physical assault
Define actual bodily harm
Hurt or injury calculated to interfere with the health/comfort of the victim
A scratch or bruise would suffice
Define a wound
Breaking of both layers of the skin
Bruising is insufficient
Define grievious bodily harm
‘Really serious harm’
Eg: fractured skull, several internal injuries, broken limbs, serious psychiatric harm, transmitting HIV
What is the AR, MR and causation requirements for murder?
AR = causing death of another human being
MR = either (a) an intention to kill; or (b) an intention to cause GBH
Causation:
- Factual: but for; acceleration of death must be significant/more than negligible
- Legal: D’s act need not be the sole cause, but their act/omission must have contributed significantly to that result
What is required for the partial defence of diminished responsibility to reduce the offence from murder to voluntary manslaughter?
D must be suffering from an abnormality of mental functioning, which:
- Arose from a recognised medical condition
- Substantially impaired D’s ability to do one or more of the following:
a) Understand the nature of their conduct
b) Form a rational judgement
c) Exercise self-control - Provides an explanation for D’s acts and omissions
Burden of proof is on the defendant to prove on the balance of probabilities
What is required for the partial defence of loss of control to reduce the offence from murder to voluntary manslaughter?
- D’s acts/omissions resulted from D’s loss of self-control
- Loss of self-control had a qualifying trigger (fear and/or anger)
- A person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same/similar way to D
Burden of proof is on the prosecution to disprove the defence beyond all reasonable doubt
What is the AR and MR of unlawful act manslaughter?
AR:
1. Do an unlawful act
2. Which is dangerous
3. Which causes the vicitim’s death
MR: intend/recklessness as to inflicting unlawful personal force
What is the AR and MR for gross negligence manslaughter?
AR:
1. D owes a duty of care to V
2. D breaches this duty
3. The breach carries the risk of death
4. Breach causes V’s death
5. Breach amounts to gross negligence
MR: no MR is required
What is the AR of theft?
- Appropriation = assuming the rights of the owner
- Can apply if owner has consented to D appropriating property
- Appropriation cannot be repeated - Of property = money and all other property, real or personal
- Does not include:
a) Land
b) Wild plants/flowers unless picking for reward/sale
c) Wild animals unless tamed/kept in captivity or carcass is being reduced into possession
d) Confidential information (the medium which it is on (eg: USB, paper) can be stolen)
e) Electricity - separate offence of abstraction of electricity - Belonging to another
- Can steal your own property
- Ownership of cash passes when it is handed over unless D is under a clear obligation to deal with it in a particular way
What is the MR of theft?
- Dishonest appropriation
a) What was D’s genuine and honest belief/knowledge as to the facts (subjective)
b) Would ordinary and decent people objectively consider D’s behaviour dishonest, taking into account the facts that D honestly believed/knew them to be
Exceptions:
1. D had the legal right to deprive owner of property
2. Owner would have consented had they known the circumstances
3. D had honest belief that owner could not be found by taking reasonable steps
- An intention to permanently deprive
- Drawing on another’s bank account shows ITPD
- Taking cash shows ITPD even if D planned to return the money
- Borrowing could amount to ITPD if on returning the property all the goodness/virtue/practical value has gone
What is the AR and MR of robbery?
AR:
1. AR of theft (appropriation of property belonging to another)
2. Using force/seeking to put anyone in fear of immediate force
3. At the time of/immediately before theft
MR:
1. MR of theft (dishonest appropriation with an intention to permanently deprive)
2. Intention/recklessness regarding use of force
- Same as MR for physical assault/battery
3. In order to steal
- Force must have been intended in order to steal/to make an escape, otherwise it is a separate offence
What is the AR and MR of s 9(1)(a) burglary?
AR:
1. Entering
- If an instrument was used, must be used with an intention to steal/commit GBH/criminal damage, not just to make an entry
2. Building/part of a building
3. As a trespasser
- Entering without consent/permission of the owner (if D is asked to leave, cannot be a trespasser by taking only available route out)
MR:
1. Knowledge/reckless as to being a trespasser
- Determined at time of entry
2. Intending to commit either:
a) Theft
- Can be conditional (seeing if there is anything worth stealing)
b) GBH
c) Criminal damage - can be committed in any part of the building
For theft/GBH, must intend to commit these offences in (part of) building they are entering into
What is the AR and MR of s 9(1)(b) burglary?
AR:
1. Having entered
2. Building/part of building
3. As a trespasser
4. Commits AR of either:
a) (Attempted) theft
b) (Attempted) GBH
- Attempted = an act more than merely preparatory to causing really serious harm
MR:
1. Knowledge/recklessness as to being trespasser
2. With MR of either:
a) (Attempted) theft
b) (Attempted) GBH
What is needed to satisfy the offence of aggravated burglary?
Requires all elements of either s 9(1)(a)/(b) as well as D being in possession of a weapon at the time of the burglary
D must know they have the item with them
- No need to prove they intended to use the weapon
s 9(1)(a): D must have weapon at time of entry
s 9(1)(b): D must have the weapon when the ulterior offence (theft/GBH) is committed
What is the AR and MR of fraud by false representation?
AR:
1. Making a representation
- May be express/implied
- May be by words/conduct
- May be to a machine (eg: inserting a card)
2. Which is false
MR:
1. Dishonesty
a) What was D’s genuine and honest belief as to facts
b) Would ordinary and decent person objectively consider D’s behaviour dishonest
2. Know/be reckless that the representation is false
3. Intend to make a gain/loss
- Immaterial whether such gain/loss has actually been made
What is the AR and MR for fraud by failing to disclose information
AR: Failing to disclose information when under a legal duty to do so
MR:
1. Dishonesty
2. Intending to make a gain/cause a loss
What is the AR and MR of fraud by abuse of position?
AR:
1. Occupy a relevant position
- Requires the existence of financial trust between D and V
2. Abuse that position
- Can be by a positive act or omission
MR:
1. Dishonesty
2. Intending to make a gain/loss
What is the AR and MR of simple criminal damage (or arson)?
AR:
1. Destroy/damage
- Still damaged even if it is temporary
2. Property
3. Belonging to another
- Anyone having:
a) Control/custody
b) Proprietary interest/right
c) A charge on it
(4. By fire)
MR:
1. Intention/recklessness as to destruction/damage
- Intent = aim/desire/purpose
- Recklessness =D foresaw risk of damage and it was objectively unreasonable for them to take the risk
2. Knowledge/recklessness as to the property belonging to another
- Must at least suspect/foresee property belongs to another
What is the AR and MR of aggravated criminal damage (or arson)?
AR: same as simple criminal damage (by fire)
MR:
1. Intention/recklessness as to destruction/damage
2. Intention/recklessness as to thereby endangering life
- Life does not need to be actually endangered
- The danger must arise from the damage caused, not the cause of damage
For what offence is the defence of lawful excuse available and what are the 2 forms of this offence?
For simple criminal damage/arson
- Belief that the owner would have consented had they known
- Belief that the damage was necessary to protect the property belonging to D or another
What are the 4 elements required to satisfy the lawful excuse defence (the form that it was necessary to protect the property belonging to another)
- D acted to protect the property
- D believed the property was in immediate need of protection
- D believed the means of protection adopted were reasonable (objective)
- The means adopted were objectively capable of protecting the property from damage
Describe what is required for self-defence
- Did D honestly believe the force was necessary in the circumstances as they honestly believed them to be (subjective)
- Was the level of force used necessary/reasonable? (objective)
Householder cases: applies to those who use self-defence while in a dwelling
- Possible to use force that is both reasonable and disproportionate, as long as it is not grossly disproportionate
When is voluntary intoxication an available defence?
Only a defence to specific intent crimes
Only be a successful defence if the intoxication deprives D of the MR of the crime
- They were incapable of forming the intent to commit the offence
Not a defence to sexual offences
Even if D is successful in their defence, they are likely to be guilty of another
- EG: defence successfully applies to s 18 OAPA, D would have no defence to s 20 OAPA as this is a basic intent crime etc.
Define involuntary intoxication and when is it an available defence?
Involuntary intoxication = had no knowledge they were taking drugs/alcohol or they take a medically prescribed drug in accordance with instructions which has an unusual side effect
Available defence regardless of it being a specific or basic intent crime, but must still demonstrate they lacked the MR
- Will affect the sentence they receive but they are still guilty of the offence
What is the effect of intoxication on:
a) Self-defence
b) Statutory defences
a) When intoxicated, a mistake made about the need to use force in self-defence will be unreasonable if it resulted from the intoxication
=> cannot be relied on
b) Criminal damage/theft only require an honest belief
=> Even drunken, mistaken beliefs can be relied upon if they are honestly held by D
What is the AR and MR for attempts?
AR = to do an act which is more than merely preparatory to the commission of the full offence
- Begins when the preparatory acts come to an end and the defendant embarks on the crime proper
MR = an intent to commit/bring about the full consequences of the offence
- Recklessness alone is insufficient to constitute MR of an attempt
Impossibility is not a defence to an attempt
Define principal and secondary offender. What is the general rule and exception for an accomplice’s liability?
Principal offender = person who physically performs the necessary AR
Secondary offender = in some way assists the principal with the commission of the offence
General rule = cannot be convicted as an accomplice unless the AR (at least) of the principal offence is committed
- Exception = principal can be acquitted but accomplice can still be guilty, when the accomplice uses an innocent agent to commit the AR of the crime
What is the AR and MR of accomplice liability?
AR = aiding/abetting/counselling/procuring commission of the principal offence
MR:
1. Intention to do the act: positive act of assistance
2. Knowledge of the circumstances of the principal offence: must know the essential matters which constitute the offence committed
- Do not need to know that these matters constitute a criminal offence
When is a mental or causal link required between a principal and an accomplice?
Mental link:
a) Abet
b) Counsel
Causal link: just procure
What is the rule regarding omissions and accomplice liability?
Remaining silent or failing to intervene at the scene of a crime where there is a right/duty to control the actions of the principal offender can amount to encouragement of the offence and lead to accomplice liability
What happens to the liability of the accomplice if the principal goes beyond the scope of the plan?
Accomplice must intend the offence that is carried out before they can be convicted of it
=> it is insufficient that the accomplice simply foresaw that the offence might occur
How can an accomplice effectively withdraw from a plan?
Must be timely, unequivocal and effective
Has withdrawal taken place before the principal offence is committed?
Have they communicated their withdrawal to D1?
Define the continuing act principle
Where the AR involves a continuing act (eg: force of battery, appropriation for theft etc) it is sufficient for D to have the MR at any point during that continuance
Define the single transaction principle
Where there is a combination of events that has led to an unlawful outcome, it is enough for D to have the AR and MR at some point during that transaction, even if they do not exactly coincide in time
Eg: D knocked V unconscious and, believing V to be dead, threw V’s body into a river. V actually drowned, but D would still be liable for murder as their conduct resulted in a series of events which culminated in V’s death
