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SQE 1 - FLK 2 > Criminal Law > Flashcards

Criminal Law Flashcards

1
Q

What is the legal and factual test of causation for AR?

A

Factual = but for
Legal = the conduct was the operating and substantial cause of that result
- No intervening acts

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2
Q

What are the general rule and exceptions for an omission to act?

A

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

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3
Q

What constitutes direct and indirect intent for MR?

A

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?

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4
Q

What is the test for recklessness for MR?

A
  1. At the time D committed the AR, D was subjectively aware of the risk; and
  2. In the circumstances known to D, it was objectively unreasonable for D to take that risk - no social utility/benefit in taking it
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5
Q

Explain transferred malice

A

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

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6
Q

Explain the effect of a mistake on the MR

A

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

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7
Q

Define simple assault and what is the AR and MR?

A

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

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8
Q

Define physical assault/battery and what is the AR and MR?

A

The infliction of force

AR: infliction of personal force
MR: intend/was reckless as to inflicting unlawful personal force

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9
Q

Define s 18 OAPA and its AR and MR

A

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)

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10
Q

Define s 20 OAPA and its AR and MR

A

Malicious wounding/inflicting GBH

AR = wound/cause GBH
MR = intend/reckless as to causing ABH

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11
Q

Define s 47 OAPA and its AR and MR

A

Assault occasioning ABH

AR = an assault, which occasions/causes ABH
MR = intend/reckless as to causing simple/physical assault

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12
Q

Define actual bodily harm

A

Hurt or injury calculated to interfere with the health/comfort of the victim

A scratch or bruise would suffice

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13
Q

Define a wound

A

Breaking of both layers of the skin

Bruising is insufficient

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14
Q

Define grievious bodily harm

A

‘Really serious harm’

Eg: fractured skull, several internal injuries, broken limbs, serious psychiatric harm, transmitting HIV

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15
Q

What is the AR, MR and causation requirements for murder?

A

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

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16
Q

What is required for the partial defence of diminished responsibility to reduce the offence from murder to voluntary manslaughter?

A

D must be suffering from an abnormality of mental functioning, which:

  1. Arose from a recognised medical condition
  2. 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
  3. Provides an explanation for D’s acts and omissions

Burden of proof is on the defendant to prove on the balance of probabilities

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17
Q

What is required for the partial defence of loss of control to reduce the offence from murder to voluntary manslaughter?

A
  1. D’s acts/omissions resulted from D’s loss of self-control
  2. Loss of self-control had a qualifying trigger (fear and/or anger)
  3. 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

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18
Q

What is the AR and MR of unlawful act manslaughter?

A

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

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19
Q

What is the AR and MR for gross negligence manslaughter?

A

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

20
Q

What is the AR of theft?

A
  1. Appropriation = assuming the rights of the owner
    - Can apply if owner has consented to D appropriating property
    - Appropriation cannot be repeated
  2. 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
  3. 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
21
Q

What is the MR of theft?

A
  1. 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

  1. 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
22
Q

What is the AR and MR of robbery?

A

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

23
Q

What is the AR and MR of s 9(1)(a) burglary?

A

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

24
Q

What is the AR and MR of s 9(1)(b) burglary?

A

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

25
Q

What is needed to satisfy the offence of aggravated burglary?

A

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

26
Q

What is the AR and MR of fraud by false representation?

A

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

27
Q

What is the AR and MR for fraud by failing to disclose information

A

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

28
Q

What is the AR and MR of fraud by abuse of position?

A

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

29
Q

What is the AR and MR of simple criminal damage (or arson)?

A

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

30
Q

What is the AR and MR of aggravated criminal damage (or arson)?

A

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

31
Q

For what offence is the defence of lawful excuse available and what are the 2 forms of this offence?

A

For simple criminal damage/arson

  1. Belief that the owner would have consented had they known
  2. Belief that the damage was necessary to protect the property belonging to D or another
32
Q

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)

A
  1. D acted to protect the property
  2. D believed the property was in immediate need of protection
  3. D believed the means of protection adopted were reasonable (objective)
  4. The means adopted were objectively capable of protecting the property from damage
33
Q

Describe what is required for self-defence

A
  1. Did D honestly believe the force was necessary in the circumstances as they honestly believed them to be (subjective)
  2. 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

34
Q

When is voluntary intoxication an available defence?

A

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.

35
Q

Define involuntary intoxication and when is it an available defence?

A

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

36
Q

What is the effect of intoxication on:
a) Self-defence
b) Statutory defences

A

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

37
Q

What is the AR and MR for attempts?

A

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

38
Q

Define principal and secondary offender. What is the general rule and exception for an accomplice’s liability?

A

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

39
Q

What is the AR and MR of accomplice liability?

A

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

40
Q

When is a mental or causal link required between a principal and an accomplice?

A

Mental link:
a) Abet
b) Counsel

Causal link: just procure

41
Q

What is the rule regarding omissions and accomplice liability?

A

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

42
Q

What happens to the liability of the accomplice if the principal goes beyond the scope of the plan?

A

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

43
Q

How can an accomplice effectively withdraw from a plan?

A

Must be timely, unequivocal and effective

Has withdrawal taken place before the principal offence is committed?

Have they communicated their withdrawal to D1?

44
Q

Define the continuing act principle

A

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

45
Q

Define the single transaction principle

A

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

SQE 1 - FLK 2 (7 decks)

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