Criminal Law

Question 1

What are the two assaults that derive from the common law?

Answer 1

Simple assault - technical assault

Battery - physical assault

Collectively known as common assault

Question 2

What are the elements of simple assault?

Answer 2

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.

Question 3

What are the elements of battery?

Answer 3

AR - infliction of unlawful personal force

MR - intentionally or recklessly inflicting unlawful force

Question 4

Can there be physical assault alone?

Answer 4

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.

Question 5

Where are the statutory offences of assault found?

Answer 5

Offences against the Person Act 1861

Question 6

s47 OAPA 1861

Answer 6

Assault occasioning actual bodily harm

Either way offence (magistrates or crown court)

Imprisonment up to 5 years

Question 7

What are the elements of assault occasioning actual bodily harm?

Answer 7

AR - simple assault or battery that causes actual bodily harm

MR - intention or reckless as to simple assault or battery only

Question 8

s20 OAPA 1861

Answer 8

wounding or inflicting grievous bodily harm

either way offence

up to 5 years imprisonment

Question 9

What are the elements of wounding or inflicting grievous bodily harm?

Answer 9

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

Question 10

s18 OAPA 1861

Answer 10

wounding or causing grievous bodily harm with intent

indictable offence

up to life imprisonment

Question 11

What are the elements of wounding or causing grievous bodily harm with intent?

Answer 11

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.

Question 12

Can consent be a defence to the statutory assaults?

Answer 12

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.

Question 13

What is the actus reus of homicide?

Answer 13

Unlawfully causing the death of the victim.

Question 14

What is the common law definition of murder?

Answer 14

The unlawful killing of a reasonable creature in being under the Queen’s peace with malice aforethought.

Question 15

What is the mens rea of murder?

Answer 15

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).

Question 16

How is a defendant found guilty of voluntary manslaughter?

Answer 16

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.

Question 17

What is diminished responsibility?

Answer 17

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.

Question 18

Who has the burden of proof re diminished responsibility?

Answer 18

Defendant.

Question 19

What are the components of loss of control?

Answer 19

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.

Question 20

Who has the burden of proof re loss of self-control?

Answer 20

The prosecution.

Question 21

What are the qualifying triggers for loss of control defence?

Answer 21

• 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

Question 22

Is sexual infidelity a qualifying trigger for loss of control defence?

Answer 22

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.

Question 23

When can a defendant raise the defence of loss of control?

Answer 23

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.

Question 24

What are the two types of involuntary manslaughter?

Answer 24

Unlawful act manslaughter and manslaughter by gross negligence.

Question 25

What is the other name for unlawful act manslaughter?

Answer 25

Constructive manslaughter

Question 26

What are the elements of unlawful act manslaughter?

Answer 26

AR - the defendant must:
- do an unlawful act, which;
- is dangerous; and
- causes the victim’s death.

MR - of the unlawful act.

Question 27

What qualifies as an unlawful act for unlawful act manslaughter?

Answer 27

Crimes with a mens rea of intent or recklessness.

Must act.

It must also be dangerous.

Question 28

In order to convict a defendant of gross negligence manslaughter, what must be satifisfied?

Answer 28

a) the defendant owed the victim a duty of care;

b) the defendant breached that duty;

c) the breach caused the death of the victim; and

d) the defendant’s conduct was grossly negligent.

Question 29

How does the jury approach the meaning of gross re gross negligence manslaughter?

Answer 29

Question of degree of seriousness.

Question 30

What is the maximum penalty for theft?

Answer 30

7 years imprisonment

Question 31

What are the elements of theft?

Answer 31

1. dishonest
2. appropriation
3. of property
4. belonging to another
5. with an intention to permanently deprive

Question 32

What is appropriation?

Answer 32

Any assumption of the rights of an owner.

Question 33

What are the key components to the offence of robbery?

Answer 33

a) the actus reus and mens rea of theft

b) the defendant uses or threatens force

c) this occurs immediately before or at the time of the robbery

d) the motivation is in order to steal

Question 34

What is the maximum sentence for burglary?

Answer 34

Maximum sentence of 10 years’ imprisonment in Crown Court, increasing to 14 in the case of burglary of a dwelling.

Question 35

What is burglary?

Answer 35

(1) a person is guilty of burglary if -
a) he enters any building or party of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2) below; or
b) having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm.

(2) The offences referred to in subsection (1)(a) above are offences of stealing anything in the building or part of a building in question, of inflicting on any person therein any grievous bodily harm…. and of doing unlawful damage to the building or anything therein.

Question 36

What is aggravated burglary?

Answer 36

A person is guilty of aggravated burglary if he commits any burglary and at the time has with him any firearm or imitation firearm, any weapon of offence, or any explosive.

Question 37

What is the maximum sentence for aggravated burglary?

Answer 37

Indictable only. Maximum sentence of life imprisonment.