Criminal Law Flashcards
What are the 3 types of crimes?
- Conduct crimes: act or omission, doing offences e.g perjury
- Result crimes: consequences flowing from action e.g murder, crim damage
- Circumstances/state of affairs: existence of certain circumstances at time of defendant’s conduct e.g in charge of moto vehicle when drunk
When can an omission be a crime?
- Statutory duty to act e.g failing to provide an officer with a specimen, failing to stop after road traffic collision, parents under duty of care for their child – Children Act 1989; and
- Common law – omission to act if law recognises duty to act:
a. Duty under contract e.g R v Pittwood duty to guard gate at crossing, went for lunch and didn’t put gate down, train collided. Or, employed as carer or health care professional;
b. Special relationship e.g R v Gibbin daughter starved, dad convicted of murder and so was his partner as she had a special relationship with child and she had assumed duty;
c. Voluntary assumption of care e.g voluntarily taking care of someone i.e letting your disabled sister live with you;
d. Creating dangerous situation e.g forgetting to put handbrake on car, realising, failing to go back (think Miller case, fell asleep with fag, woke up to smouldering mattres, moved next door and didn’t put it out – failing to take steps to put it out after realising what happened). Duty to take reasonable steps to avert danger. Criminal liability only if created danger, became aware, failed to take reasonable steps.
What type or crime does causation relate to?
Result crimes
What is the test for factual causation?
TEST: But for the defendant’s conduct, would the consequence have occurred?
If the consequence would have occurred regardless then factual causation not established.
R v White (example): Defendant poisoned mother, she had heart attack and died unrelated to position, cannot establish factual causation.
What is the test for legal causation?
TEST: The defendant’s conduct was a substantial and operating cause of the consequence.
What legal principles govern legal causation? 5 principles, but the 5th has 4 sub categories.
- The consequence must be attributable to a culpable act or omission - R v Dalloway – D negligently driving horse and not holding reigns, child ran in front of cart, child killed, not convicted;
- Culpable act must be more than minimal cause of the consequence – R v Pagett – D taken GF hostage, used her as a human shield when police fired, guilty of manslaughter as his action;
- Culpable act need not be sole cause – R v Benge – Track laying crew, man misread train timetable and accident caused death. Signalman and train driver also at fault but doesn’t stop crim liability;
- Take victim as they find them – think egg shell skull rule – R v Blaue - the defendant stabbed a woman who refused a blood transfusion because of her religious beliefs. Died. Still culpable; and
- Can’t break chain of causation – think actus interveniens:
(a) Victim’s acts (act must be FREE, DELIBERATE and INFORMED:
i. ESCAPE CASES: R v Roberts: victim jumped out of moving car to avoid sexual advances. D was liable for
assault ABH. Chain not broken for fright and flight cases as acts not free and deliberate and uninformed. This
does not apply if the act was so daft as to make it the victim’s only voluntary act. Think of agony of moment;
ii. SUICIDE: May be covered by take victim as find them: R v Wallace – threw acid on partner, ijuries so bad
applied for euthanasia in Belgium and was granted. Court found did not break chain, was it reasonably
foreseeable that victim would want to commit suicide as a result of injuries.
(b) Third party intervention – not be liable if 3rd party act is either FREE, DELIBERATE and INFORMED, or is REASONABLY FORSEEABLE. Think Pagett (D uses GF as human shield), PC fired but was acting in self defence and it was reasonably foreseeable.
(c) Medical negligence – rare, has to be so GROSSLY NEGLIGENT that second cause was so overwhelming that original wound was MERELY PART OF HISTORY can it be said death does not flow from wound. If original wound still operating, probs still liable. R v Cheshire [1991], the victim was given a tracheotomy as a result of gunshot wounds received. Two months later, he died due to scar tissue at the tracheotomy site that obstructed his breathing. The victim’s wounds were no longer life-threatening at this time, yet the original attacker was convicted of murder. Even if medical treatment was immediate cause of death, does not break chain unless SO INDEPENDANT OF D’S ACTION and SO POTENT IN CAUSING DEATH that it makes D’s act INSIGNIFICANT.
(d) Intervening acts – acts of god e.g thunderstorm, earthquake etc. Also non-natural events: e.g house blows up in gas explosion.
What are the 3 components needed to establish criminal liability?
- Establish Actus Reus – guilty conduct (inc causation if necessary);
- Mens Rea – guilty mind; and
- Absence of valid defence.
What are the two types of intention?
- Direct intention (the situation where the defendant seeks to achieve the consequence of their act); and
- Indirect intention/oblique intention (consequences that the defendant achieves by committing the actus reus are a by-product, so not the principal purpose, of what the defendant was aiming to do).
What is the legal test for indirect intention (2 part test)?
R v WOOLIN 1999 (Dad lost temper with baby and thew him across room, died. Didn’t intend to kill but knew there was a high risk of doing so).
- Was the consequence VIRTUALLY CERTAIN to occur from D’s act or omission? OBJECTIVE TEST. Consider the striking miners dropping concrete block & russian roulette; and
- Did the defendant APRECIATE the consequences were VIRTUALLY CERTAIN to occur? SUBJECTIVE TEST. In Woolin, D guilty of manslaughter only as jury found he didn’t think death was virtually certain.
What inferences can the jury draw for second part of test for indirect intent?
Jury do not need to just accept what D says, more unlikely their story less likely to be believed – s8 Criminal Justice Act 1967 – jury may draw inferences as appear proper from evidence.
What is the two part test for recklessness?
D taking an unjustified risk. Involves foresight of possible consequences.
TEST: Satisfy 2 elements:
- (OBJECTIVE) The risk must be unjustified or unreasonable; and
- (SUBJECTIVE) The defendant must be AWARE OF RISK and GO ON TO TAKE IT. Any awareness, regardless of how small, will do.
Test for negligence?
This is judged on an OBJECTIVE standard, need not foresee risk provided it is an obvious one. Judge at standard of reasonable person.
E.g
Common Law
- Gross negligence manslaughter e.g example of catering assistant giving nuts to child who is allergic, if she fell so far below the standard of the reasonable employee, and child died, could be criminally liable.
Statutory Offences
- Careless driving – s3 Road Traffic Act 1988 – driving without due care and attention or without reasonable consideration for other persons (motive irrelevant – even if trying to get pregnant wife to hospital, if fell below standard of what would be expected of competent and careful driver then liable). Consequences are also irrelevant, does not matter what happened as a result. Only need manner of driving.
What is a strict liability offence
- Not necessary to prove mens rea or negligence in respect of at least 1 element of actus reus
- Usually statutory and regulatory in nature
- No need for proof of fault
E.g driving motor vehicle in excess of speed limit
What is transferred malice?
- Usually for murder, tried to kill one and killed another – not necessary for offence that can be carried out recklessly
- R v Latimer 1886 - The defendant became involved in a fight with a man in a public house. He took off his belt to strike his intended victim but the belt ricocheted off and hit a woman standing nearby, causing a severe wound to her face. Despite having injured the woman accidentally, the defendant was found guilty of an assault
- Applies if stole wrong property or damage wrong property
- Doesn’t apply if different offence i.e threw stone at man but missed and hit window, different crimes so doesn’t count (R v Pembliton)
What is a continuing act?
Where actus reus brought about by continuing act, sufficient that D had mens rea during continuance, even if not at beginning.
Fagan v Metro Police 1969 – Man accidentally reverse car onto police officer’s foot – no intention – then turned off car and refused to move. Actus Reus and Mens Rea do not coincide, however, actus reus was found to be a continuing act that coincided at some point with MR.
What is a single transaction?
Need to be guilty of murder only at some point in transaction.
Thabo Meli v R 1954 - D struck V on the head intending to kill him. As part of the plan to make the death look like an accident and believing V to be dead, D rolled the body over a cliff. In fact, V died of exposure some hours later. Impossible to divide up what was really one series of acts – convicted.
R v Church 1966 - D fought with V and attempted to strangle her. She fell unconscious and D, believing her to be dead, threw V into a river to dispose of her body. V actually died of drowning. Sufficient for conviction that a series of acts culminated in her death – convicted.
What are the 3 classification of offences (mens rea)?
- Basic intent: reckless or with intent e.g criminal damage – voluntary intoxication is not excuse (as reckless to get drunk);
- Specific intent: intentionally, e.g murder – can plead voluntary intox; and
- Ulterior intent: extra element of mens rea e.g burglary 9(1)(a) & aggravated crim damage, need additional mens rea to intend to bring about consequences, i.e intent to steal for burglary or intention/recklessness to endanger life for agg crim damage. Actual consequences not needed.
What are the 5 assault offences, what is their classification, the authority, and how long can you get in jail?
- (Simple) assault: common law offence, charged under s 39 Criminal Justice Act 1988. Summary: 6 months prison and/or fine;
- Battery: common law offence but charged under s 39 CJA 1988. Summary: 6 months imprisonment and/or fine;
- ABH: S 47 Offences Against the Person Act 186. Either way: 5 years imprisonment;
- Maliciously wounding or inflicting GBH: S 20 OAPA 1861.Either way: 5 years imprisonment; and
- Wounding with intent or GBH with intent: S 18 OAPA 1861. Indictable only: Life.
AR & MR of simple assault?
- Actus reus: cause victim to apprehend immediate unlawful personal force
- Mens rea: recklessly or intentionally cause victim to apprehend immediate and unlawful personal force
AR & MR of battery?
- Actus reus: infliction of unlawful person force – only need very slight degree of force, don’t need harm:
a. Direct contact, even with weapon;
b. Spitting, throwing objects, cycling over foot; and
c. Set dog on victim, places obstacle behind door so victim trips. - Mens rea: recklessly or intentionally inflict unlawful personal force – must intended/foresee actual infliction and not apprehension – no need for recklessness/intention for injury
AR & MR of ABH?
- Actus reus: committing simple assault or battery that cases actual bodily harm – i.e common law assault with added injury (different to battery as you need the harm), as this is a result crime causation rules will apply;
- Mens rea: reckless or intention as to simple assault or battery – no need to show D intended to cause ABH – same as simple assault & battery (intend to cause apprehension or inflict).
AR & MR of mal. wounding/GBH?
- Actus reus: unlawfully wounds or unlawfully inflicts grievous bodily harm on the victim. Causation rules will apply. GBH = really serious harm
- Mens rea: maliciously wound or inflict GBH however R v Savage; R v Parmenter, defendant only needs to be reckless as to cause ABH.
AR & MR of wounding/GBH with intent?
- Actus reus: unlawfully wounds or unlawfully inflicts grievous bodily harm on the victim. Causation rules will apply. Same as s20!
- Mens rea:
a. With intent to cause GBH;
b. With intent to resist or prevent the lawful apprehension or detention of any person, coupled with the intention or recklessness to causing some bodily harm.
What are the 4 ways a s18 can be committed?
Ordinary victim:
- AR – wound, MR – intention to cause GBH;
- AR – GBH, MR – intention to cause GBH.
Police officer victim:
- AR – wound, - MR – intention to resist/prevent arrest and intention/recklessness to cause ABH;
- AR – GBH, - MR – intention to resist/prevent arrest and intention/recklessness to cause ABH.
Can you consent to an assault?
Can consent to simple assault and battery, not ABH or GBH with and without intend (unless exception like surgery, tattoo - body mods don’t count.)
Types:
- Actual consent (e.g surgery, dentist, tattoo); and
- Implied consent (inevitable touching day to day).
How must consent be given?
a. Freely and given by informed and competent adult (ie can’t withhold info, be a child, be mental etc);
b. Not valid if obtained by fraud as to identity or as to nature/quality of act.
AR & MR for murder? What is the sentence?
- Actus reus: The unlawful killing of a reasonable creature in being under the Queen’s peace (common law) – if killed enemy in combat may be defence;
- Mens rea: Malice aforethought but this is misleading, modern definition of the mens rea for murder is an intention either to kill or to cause grievous bodily harm. SUBJECTIVE. No malice needed, even if sympathy killing. Specific intent so can’t be committed recklessly.
- Mandatory life sentence. May not spend whole life in jail, judge decides min term and if deemed no longer a threat will be released. When back in community, subject to life license so can be recalled back if commit further offence.
When is it considered someone is dead?
- Victim must be human being (once baby is born it counts even if injury in womb). Time of death considered when brain stem has died i.e can’t breath etc – turning machine off isn’t the important bit
- Must CAUSE death
AR & MR for voluntary manslaughter? What is the sentence?
Same as murder:
- Actus reus: The unlawful killing of a reasonable creature in being under the Queen’s peace (common law) – if killed enemy in combat may be defence;
- Mens rea: Malice aforethought but this is misleading, modern definition of the mens rea for murder is an intention either to kill or to cause grievous bodily harm. SUBJECTIVE. No malice needed, even if sympathy killing. Specific intent so can’t be committed recklessly.
This is essentially murder but has been downgraded due to diminished responsibility; loss and control or suicide pact. No mandatory life sentence, judge has discretion.
What is the partial defence of loss and control, what are the requirements?
It downgrades murder to manslaughter, it focuses on external factors that led to killing.
Requirements:
1. D must lose control (SUBJECTIVE i.e not reasonable person - was there element of planning?);
2. Caused by qualifying trigger; and
3. Person of same age and sex and normal degree of tolerance MIGHT HAVE acted in the same way.
What is the evidential burden for loss and control?
S 54 Criminal Justice Act 2009 - Conventional evidential burden – need to adduce some evidence and then Prosecution must prove beyond reasonable doubt.
What are the qualifying triggers for loss and control?
- Fears SERIOUS violence from victim (against themselves or another);
- Things said or done of (a) an extremely grave character and (b) caused the D to have a JUSTIFIABLE sense of being seriously wronged;
- Defendant’s loss of control was a combination of matters.
Not infidelity, can’t have been planned, no need to be sudden (think domestic violence), not desire for revenge.
What is the partial defence of diminished responsibility, what are the requirements?
- Murder to manslaughter
- Focus on internal workings of mind
Requirements:
- Suffering from ABNORMALITY OF MENTAL FUNCTIONING (subjective - would reasonable person deem it abnormal);
- Abnormality arising from RECOGNISED PSYCHIATRIC CONDITION (need medical evidence - balance of probs);
- Substantially impaired ability to;
(a) Understand nature of conduct; or
(b) Form rational judgment; or
(c) Exercise self control. - Provides explanation for the act or omission in doing the killing.
What is the evidential burden for diminished responsibility?
Prosecution have to prove mens rea and actus reus beyond reasonable doubt. Evidential burden on defendant as normal, but also has a legal burden to prove on the balance on probabilities.
Mens rea & actus reus for unlawful act manslaughter?
D commits crime that is objectively dangerous and that causes victim’s death. Need not be assault.
- Actus reus: do an unlawful act which is dangerous and causes victim’s death;
- Mens rea: Of the unlawful act.
- Mens rea must be intent or recklessness, negligence doesn’t count (unlawful ACT not omission)
- If child died by neglect it would not be unlawful act manslaughter
- Need positive action
What is the test for an objectively dangerous act for unlawful act manslaughter?
R v Church 1966, unlawful act must be one that all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm … albeit not serious harm. OBJECTIVE.
What knowledge is the reasonable person expected to have? - The reasonable person is considered to have the same knowledge the Defendant had, or SHOULD have had, at time of offence.
- R v Dawson: 3 D attempted to rob petrol station, attendant (60 y/o) died of a heart attack due to pre-existing condition. Invol mans. quashed as reasonable person would not realise he had a heart condition.
Do the causation rules apply to unlawful act mans?
Yes - Unlawful act must cause death - rules of causation: drug offences, if D injected drug supplied to them is an intervening act that breaks chain
What elements are needed for gross negligent manslaughter?
- Owe duty of care;
- Breached duty;
- Causes death; and
- Conduct was grossly negligent.
- Need not have intention to kill or cause GBH
- Act or omission counts
- Need not have criminal mindset like with unlawful act manslaughter
Gross neg mans - when is there a duty of care to positively act?
- Omissions – think of exceptions in ch 1:
o Special relationship (e.g case of dad’s girlfriend);
o Statutory e.g mother and child;
o Created dangerous situation;
o Contractual duty e.g employment;
o Voluntarily assumed responsibility.
What is the test for if the negligence was gross?
TEST: Leading case: R v Adomako (1995), anaesthetist failed to notice oxygen was disconnected and patient had a heart attack. Court found having regard to the risk of death involved, the conduct was so bad in all circumstances to amount to a criminal act or omission.
Gross neg. mans. What amounts to forseeing risk of death?
- Risk of death: R v Singh 1999 reasonably prudent person would have foreseen a serious and obvious risk not just of injury (or even serious injury) but of DEATH
Difference between negligent and criminal act?
TEST: R v Bateman (1925), the conduct must be such that the negligence went beyond mere matter of compensation between subjects and showed such disregard for life and safety of others as to amount to a crime against the State and deserving of punishment.
Case law on foreseeing risk of death?
- Does count: D smuggled illegal immigrants in back of lorry, sealed air vent to reduce risk, victims died.
- Does not count:
o Dr failed to attend 12 yea old who died from very rare disease – a reasonably prudent person could not foresee the risk of death
o Dr failed to spot abnormalities during routine eye exam and victim died – risk of death must be clear and unambiguous, not one which is apparent on further investigation.
What is the authority for theft, how long in jail and what type of offence?
- Either way offence, up to 7 years in jail
- Specific intent crime
- Authority: s1 Theft Act 1968 “A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it”
Actus reus & mens rea of theft?
- Actus Reus: Appropriation of property belonging to another; and
- Mens Rea: Dishonesty coupled with an intention to permanently deprive.
Theft - what amounts to appropriation?
- Goes further than just taking something belonging to another – appropriation is any assumption of the rights of an owner:
o Switching label on piece of meat (R v Morris 1984)
o Property passing with consent of the owner i.e paying with a fraudulent cheque (DPP v Gomez 1993)
o The receipt of a gift (R v Hinks) - Theft if do not appropriate property when first come into contact, but later keeps it or deals with it as owner (e.g borrow a book but later decide to keep)
- Can you commit theft multiple times on same item, i.e every time you assume the right of an owner – when you steal the object, when you sell the object etc NO ONLY ONCE!
Theft - what does not amount to property?
- Mushrooms, flowers, fruit on wild land
- Wild creates unless at zoo or someone has already taken possession
Theft - when does property belong to another? When does it not?
- Property belongs to another if they have:
o Possession
o Control
o A proprietary right - There can therefore be multiple owners of property (i.e if I stole a phone off James, but it belonged to Joe, James would be the owner but so would Joe as he would be in possession. Or, if I have a joint bank with James, because we are business partners, if I spend all the money in the account, that’s theft because he has a proprietary right or interest.
Can you steal your own property?
Usually no, but can if someone has taken your property lawfully (i.e you owe them money).
(In R v Turner man stole back his own car from garage, it was found it did not belong to him as the garage was owned money by the D and it was lawful for them to possess car).
If petrol is put in the car, or food is eaten, then you decide not to pay, does the petrol/food still belong to someone else?
Edwards v Ddin 1976 – not guilty of theft because when he decided to steal petrol it was already in his car so didn’t belong to another.
Does the property belong to another if you had an obligation to deal with it in specific way but didn’t? Theft.
Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or proceeds shall be regarded (as against him) as belonging to the other. i.e if I am given money to deposit in bank for friend, but I keep it, this is still theft – s5(3) Theft Act.
o R v Waion 1995: D raised money by organising events for a charity. He paid it into a special bank account but then, rather than pay the sponsorship money over to the charity, he spent it on himself. Property DID belong to another as he was under obligation to deal with it in particular way.
o R v Hall 1993: D was a travel agent and received money from various clients to pay for flights, which went into his general business account. The flights were not booked and no monies were refunded. D was not obliged to use the money that had been given to him for that specific purpose. This was because he was under no obligation to preserve the money in a separate fund. Property did NOT belong to another – seems unfair.
Can abandoned property be stolen?
- Abandoned property can not be stolen. Courts reluctant to treat objects as abandoned:
o Seamus is walking home one evening when he passes a charity shop. He sees a bin bag full of clothing lying next to the door of the shop. Because it is very cold, Seamus selects a jumper from the bag, puts it on and then continues on his way. THEFT. Owner intended charity shop to have.
o Leon goes to a local golf club at night with sub-aqua diving equipment and retrieves a large number of golf balls from a lake on the course, which he sells online. His submission that the golf balls have been abandoned by the owners fails as, although the individual golfers may have abandoned the balls, they remain the property of the golf club itself. Therefore stealing food from supermarket bin is theft.
