Criminal Law Flashcards
What are the two assaults that derive from the common law?
Simple assault - technical assault
Battery - physical assault
Collectively known as common assault
What are the elements of simple assault?
Intentionally or recklessly causing the victim to apprehend immediate and unlawful force.
They do not need to actually touch the victim. If they do, it is battery.
No injury or harm needs to be caused.
What are the elements of battery?
AR - infliction of unlawful personal force
MR - intentionally or recklessly inflicting unlawful force
Can there be physical assault alone?
Usually the two offences of assault and battery will go together so that the victim believes they are about to be hit, and then they are.
However, there can be physical assault alone - e.g. creeping up and then hitting someone on head.
Where are the statutory offences of assault found?
Offences against the Person Act 1861
s47 OAPA 1861
Assault occasioning actual bodily harm
Either way offence (magistrates or crown court)
Imprisonment up to 5 years
What are the elements of assault occasioning actual bodily harm?
AR - simple assault or battery that causes actual bodily harm
MR - intention or reckless as to simple assault or battery only
s20 OAPA 1861
wounding or inflicting grievous bodily harm
either way offence
up to 5 years imprisonment
What are the elements of wounding or inflicting grievous bodily harm?
AR - unlawfully wounds or unlawfully inflicts grievous bodily harm on the victim
MR - maliciously wound or inflict the AR
Must intend or be reckless with regards to causing some bodily harm
s18 OAPA 1861
wounding or causing grievous bodily harm with intent
indictable offence
up to life imprisonment
What are the elements of wounding or causing grievous bodily harm with intent?
AR - unlawfully wounding or causing grievous bodily harm to a person
MR - either:
- intent to cause grievous bodily harm; or
- intent to resist or prevent the lawful apprehension or detention of any person, coupled with then intention or recklessness as to causing some bodily harm
Recklessness as to causing grievous bodily harm will not suffice.
Can consent be a defence to the statutory assaults?
The general rule is that consent is not available as a defence to any assault where harm is intended or caused.
However, exceptions include surgery and tattoos.
sado-masochism and body modifications are not exceptions.
What is the actus reus of homicide?
Unlawfully causing the death of the victim.
What is the common law definition of murder?
The unlawful killing of a reasonable creature in being under the Queen’s peace with malice aforethought.
What is the mens rea of murder?
Intention to either kill or to cause grievous bodily harm.
It cannot be committed recklessly and is therefore an offence of specific intent.
Can be direct or indirect intent (virtually certain consequence of their actions and the defendant appreciated this).
How is a defendant found guilty of voluntary manslaughter?
The jury must first conclude the defendant is guilty of murder.
However, it will be voluntary manslaughter in the following circumstances:
a) diminished responsibility
b) loss of control
c) suicide pact
These are partial defences only to murder.
What is diminished responsibility?
Four elements must be proved:
a) an abnormality of mental functioning; which
b) arose from a recognised medical condition; and
c) substantially impaired the defendant’s ability to understand the nature of their conduct, and/or form a rational judgement and/or exercise self-control; and
d) provides an explanation for the defendant’s act or omission in doing the killing.
Who has the burden of proof re diminished responsibility?
Defendant.
What are the components of loss of control?
a) the defendant must lose self-control;
b) the loss of control must have a qualifying trigger; and
c) a person of the defendant’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of the defendant, might have reacted in the same or in a similar way as the defendant did.
Who has the burden of proof re loss of self-control?
The prosecution.
What are the qualifying triggers for loss of control defence?
- the fear trigger: the loss of control ‘was attributable to the defendant’s fear of serious violence from the victim against the defendant or another identified person’.
- the anger trigger: justifiable sense of being wronged
Is sexual infidelity a qualifying trigger for loss of control defence?
Sexual infidelity cannot be relied upon on its own as a qualifying trigger, but its existence does not prevent reliance on the defence where there are other qualifying triggers.
When can a defendant raise the defence of loss of control?
It can only be presented to the jury if there is sufficient evidence that in the opinion of the trial judge, a jury, properly directed, could reasonably conclude that the defence might apply.
What are the two types of involuntary manslaughter?
Unlawful act manslaughter and manslaughter by gross negligence.
