Criminal Law Flashcards
Where do all criminal cases begin?
The Magistrates Court
Where are more serious criminal cases heard?
Crown Court
Who would bring a case against a defendant on behalf of the State?
The CPS
Who else might prosecute under criminal law?
Local Authorities Parliament Charities Citizens Organisations
What is the aim of criminal law?
Compensate for and prevent criminal acts
Are the rules in a criminal court stricter than in a tort court?
Yes
What is the burden of proof?
Who has the burden of proving a criminal act was committed
Who has the burden of proof in a criminal case?
The prosecution
When are the 2 situations a burden of proof will be reversed?
- Certain Defences
2. Certain excuses
What is the evidential burden?
Once the defendant raises a defence, the prosecution has the burden of proof of disproving it
What is the standard of proof in a criminal case?
Prosecution must prove beyond a reasonable doubt that the defendant committed the offence
What is actus reus?
A physical act
What is mens rea?
The mental state
What are the three possible elements to actus reus?
Conduct
Circumstance
Result
What is the element of actus reus of conduct?
These are physical acts or omissions by the defendant that make the defendant liable for the offence
What is the element of actus reus of circumstances?
These are facts that must exist for a defendant to be liable
What is the element of actus reus of result?
This is the outcome that must occur for the offence to be committed.
Can an omission be a criminal act?
Yes
What are the two requirements that must be satisfied for a failure to act to amount to a criminal offence?
- There must be a duty on behalf of the defendant to act; and
- The defendant must have breached that duty by failing to act sufficiently
Is a possession of something enough to amount to actus reus?
Yes
What is the test for factual causation?
But for test
What is the but for test?
‘but for’ the defendant’s conduct, would the result still have occurred?
Would accelerating an outcome (death) be enough to satisfy causation?
Yes
What is the test for legal causation?
The defendant must have played a substantial role in the act and outcome and they must have been operative so the actions of someone else would be intervening.
What is the thin skull rule?
If the defendant causes more damage than one would expect because of preexisting issues of the victim does not negate causation. You take the victim as you find them
What are the 2 types of intention?
Direct
Indirect
What is direct intention
The act, circumstance or outcome specified in the offence was the defendants aim or purpose
What is indirect intention?
If the outcome was a virtual certainty of the act and the defendant realised the outcome was a virtual certainty
What offences is indirect intention applied to?
Specific intent offences
What is a specific intent offence?
These offences can only be committed intentionally
What is the doctrine of transferred malice?
Where the defendant has an intention to hit one person however accidentally hit another, the intention can be transferred onto the other person
If I throw a rock to hit a person and then it hits a window and smashes it, would this fall under the transferred malice doctrine?
No as it must be the same offence committed
What does recklessness require?
- The defendant must have foreseen the risk from the act and continues regardless; and
- In all circumstances known to the defendant, it must be an unreasonable risk to take
What does the court ask regarding negligence?
- Did the defendant owe a duty of care; and
- Did the defendant breach the standard of care expected?
What is a strict liability offence?
One that does not require the awareness of all factors constituting the crime and the defendant can be found guilty from the mere fact that they committed the act.
How would the courts look to prosecute a corporation?
The prosecution would look for a ‘controlling mind’ within the corporation.
What are the required elements for murder?
A defendant commits murder when they:
- Cause
- The death of another human being
- Unlawfully
- With the intention to kill or cause GBH
Does the action of murder need to be committed by a physical act?
No, can be caused by action or inaction of the victim if a duty of care is owed
Can you be convicted of murder of a foetus?
No, a foetus is not a human being.
If a victim becomes brain dead due to the victims actions, what charge would the defendant be subject to?
Murder - brain dead is treated as dead
What is voluntary manslaughter?
Occurs where the actus reus and mens rea of murder are made out but there are partial defences that can reduce the offence from murder to manslaughter.
What are the 2 most common partial defences for voluntary manslaughter?
Diminished responsibility
Loss of control
What must a defendant assert for diminished responsibility?
- The defendant must demonstrate an abnormality of mental functioning
- The abnormality must have arisen from a recognised medical condition
- The abnormality must have substantially impaired the defendant’s ability to (1) understand the nature of their conduct, (2) form a rational judgement , or (3) exercise self control
- The abnormality must provide an explanation for the killing
To whom is the burden of proof placed on for diminished responsibility?
The defendant must prove each element on the balance of probabilities
What must be established for a defendant to successfully raise a loss of control defence?
They must show:
- Their role in the killing resulted from a loss of self-control
- The loss of self- control was caused by a qualifying trigger
- A hypothetical person of the defendant’s age and sex might have reacted in the same way.
What is a qualifying trigger for the defence of loss of control?
- Fear of serious violence from the victim against the defendant or any other identified person
- Thing or things done or said which constituted circumstances of an extremely grave character and caused the defendant to have a justifiable sense of being seriously wronged
Is revenge a sufficient trigger for loss of control?
No
Is sexual infidelity considered a trigger for loss of control?
No
What is involuntary manslaughter?
If the mens rea for murder is not made out, the defendant may still be liable for involuntary manslaughter
What are the 2 most common types of involuntary manslaughter?
Unlawful act manslaughter
Gross Neglience manslaughter
What is unlawful act manslaughter?
Where the defendant commits a criminal offence that carries an objective risk to the victim and they dies as a result.
What are the requirements for unlawful act manslaughter?
The act must be:
- Intentional
- Unlawful
- Dangerous
- Cause of death
Can unlawful act manslaughter be committed by ommission?
No it requires an act to satisfy the offence
What causation is required for unlawful act manslaughter?
Both factual and legal causation
Factual = but for test
Legal = substantive and operative cause
What is gross negligence manslaughter?
Covers cases which a defendant does not commit an offence or knowingly take a risk, but rather acts in an extremely negligent way that they are criminally culpable.
What are the elements of gross negligence manslaughter?
- The defendant owes the victim a duty of care
- The defendant breached the duty of care
- The breach caused the victim’s death
- There was a serious and obvious risk of death; and
- The breach amounted to gross negligence
Is a positive act required for gross negligence manslaughter?
No, can result from failing to act when a duty to assist arises
What is the offence of assault?
Occurs when a defendant either intentionally or recklessly causes another person to apprehend immediate unlawful personal violence
What is the actus reus required for assault?
The defendant’s conduct must make the victim believe that the defendant will apply unlawful force upon them imminently.
Can words be enough to satisfy the requirements of assault?
Yes
Can words spoken negate assault?
Yes, if they stop the victim from believing they will be immediately assaulted
Can a conditional threat be sufficient for assault?
Yes as long as it might happen
What is the mens rea required for assault?
Can be intentional or reckless. The defendant must either (1) intend the victim or apprehend the application of unlawful violence, or (2) foresee that their actions could make the victim apprehend the application of unlawful force, and it must be an unreasonable risk to take
What is the offence of battery?
Occurs when a defendant either intentionally or recklessly applies unlawful personal force upon another person.
What is the actus reus required for battery?
The defendant must make contact with the victim’s body, and the contact must be unlawful.
How must contact be made for the offence of battery?
Can be direct, indirect, delayed or by omission
What is the mens rea required for battery?
Can be intentional or reckless. The defendant must foresee the risk that their actions could cause them to apply unlawful force upon the victim, and this must be an unreasonable risk to take.
When would consent be deemed to assault or battery?
If it is:
- express or implied to the defendant
- given by someone with sufficient capacity, freedom and information to make a choice
What is the actus reus for ABH?
That of assault plus causing actual bodily harm
Must legal or factual causation be present for ABH?
Yes both
What injuries would be classed as ABH?
Any hurt or injury calculated to interfere with health or comfort of the victim. Including:
- Scratches, grazes and abrasions
- Bruising and swelling
- Temporary loss of consciousness
- Psychiatric injury, but not fear or anxiety
What is the mens rea of ABH?
Intention or recklessness as to whether a victim will apprehend the infliction of immediate unlawful violence (assault) or the application of the unlawful force (battery) is sufficient.
What is the actus reus of GBH?
Causing a wound or GBH
What is a wound defined as?
Any injury where both layers of the skin are broken - bruising is not enough
What are GBH injuries defined as?
‘Serious harm’ such as long periods of unconsciousness, broken bones, and serious psychiatric injuries
What is the mens rea for GBH?
Intention or recklessness regarding some harm. Does not need to foresee the extent of harm required just that there was some harm and it was unreasonable to take the risk
What is the actus reus required for GBH with intent?
Identical to GBH
What is the mens rea of GBH with intent?
A defendant must (1) intend to cause serious harm or (2) foresee the risk of some harm and intent to resist lawful apprehension.
What are the requirements of a victims consent to ABH and GBH?
- Must be express or implied to the defendant in a legally recognised manner
- Must be effective and the victim must have the capacity freedom, and information to make a choice; and
- Must come within a legally recognised category
What are examples as to when a person can consent to ABH or GBH?
Surgery
Body modification - piercing or tattoos
Religious practices
Sports
Can a person consent to ABH or GBH for sexual gratification?
If the person is fully informed yes however if not then no. The courts will not interfere with a married couple.
What are the 5 elements of theft?
- Dishonest
- Appropriation
- Of property
- Belonging to another
- With the intention to permanently deprive
How will the court decide whether a defendant has been dishonest regarding a theft offence?
Ascertain the defendants knowledge as to the facts and all itself whether the defendant’s behaviour was dishonest by objective standards
What situations would a defendant deemed not to be dishonest?
If the defendant believes
- They have a right to the property
- They would have the owners consent
- The owner could not be discovered by taking reasonable steps
What is the element of appropriation to the theft offence?
Any assumption of the rights of the owners. Can be ongoing or a repeated action
What is included as property for the element of theft?
Money and all other property including intangible property, real property and personal property
Would a lost item be able to be stolen?
No - items are rarely considered abandoned even after it has been lost or thrown away
When must the intention to permanently deprive?
At the time of taking the item
What are the 3 elements to robbery?
Theft
Force
Before or at the time of offence in order to steal
How is force satisfied for robbery?
- Infliction of force
- Causing apprehension of force
- Seeking to cause the apprehension of force
What is the mens reasonable for robbery?
Dishonest and intention to permanently deprive (same as theft)
What are the 2 ways to commit burglary?
- Burglary by trespass with intent
2. Burglary by offences committed following a trespassory entry
What is required to satisfy the element of entry for burglary?
Defendant must have (1) knowingly or recklessly, (2) entered a building, (3) as a trespasser, (4) with any part of their body
What are the requirements for a building or part of building?
Requires a structure with some degree of permanence
What additional elements are required for burglary by trespass with intent?
The defendant must enter the building with the intent to steal anything in the building, inflict GBH or cause criminal damage to the building or anything inside. They must just intend to do this and does not matter if they did not do it.
What additional elements are required for burglary by offence following trespassory entry?
The prosecution need not prove the defendant trespassed within intention to steal etc but merely that after entering the building they actually stole, attempted to steal, inflict GBH.
What is the mens rea for burglary?
The defendant must know they are a trespasser and intend to commit the underlying offence at the point of entry.
What weapons would be considered under the offence of aggravated burglary?
- A firearm or imitation firearm
- Weapon of offence
- An explosive
When would a defendant commit an offence of fraud by false representation?
If they dishonestly make a false representation and intend, in doing so:
- To make a gain for themselves or another
- To cause or risk a loss to another
What is the actus reus for fraud by false representation?
Representation included as to fact, law or state of mind (Using a bank card at an ATM while pretending to be the owner of the card). Can either be untrue or simply misleading.
What are the mens rea requirements for fraud by false representation?
A defendant must:
- Know the representation is or might be false or misleading
- Act dishonestly
- Intend to make a gain for themselves or another, or cause or risk loss to another
When would a defendant commit the offence of fraud by failing to disclose information?
If they dishonestly fail to disclose information that they are under a duty to disclose and intend, in failing to do so:
- To make a gain for themselves or another; or
- To cause or risk a loss to another
What is the actus reus of fraud by failing to disclose information?
A legal duty will arise if a defendant has a contractual duty to disclose
What is the mens reasonable for fraud by failing to disclose information?
Same as fraud by false representation
When would a defendant commit the offence of fraud by abuse of position?
If they abuse their position in which they are expected to safeguard the financial interest of another.
What is the actus reus for fraud by abuse of position?
The defendant must have been in a position that warrants their duty to safeguard the other’s interests by being in a position of trust or expressing loyalty. Whether abuse has occurred is a matter for the jury to decide
What is the mens rea for fraud by abuse of position?
A defendant must have intended to use their position to make a gain or cause or risk a loss, a defendant does not need to know that they occupy the position in which they are expected to safeguard financial interest of another. Dishonesty is still required
When would a defendant commit the offence of criminal damage?
If they, without lawful excuse, destroy or damage property belonging to another intending to do so or being reckless as to whether that property is destroyed or damaged
What is the actus reus for criminal damage?
Damage includes situations where damage is slight or can be repaired easily
Can criminal damage be caused to a bank account or copyrights?
No - the property must be physical
Can a person be convicted of criminal damage to their own property?
No - if they are a co-owner they can
What is the mens rea for criminal damage?
The defendant must intend to destroy or damage the property or be reckless as to whether the item will be damaged. The defendant must know or believe that the item belongs to another.
What are the defences for criminal damage?
A defendant will have a defence if they believe:
- That the owner did or would have consented to the damage
- That they are protecting their own property
What are the 3 key differences for aggravated criminal damage to regular criminal damage?
- The property damaged can belong to the defendant or someone else
- There is an additional mens rea requirement that the defendant must intend or be reckless as to the endangerment of life by the damage caused to the property
- No defences apply
What is the offence of arson?
Criminal damage by fire
Who is the principal offender?
The one who commits the actus reus and has the relevant mens rea at the same time
Who is the co-principal offender?
If 2 defendants act together for a common purpose in committing they act, they are both considered principal offenders
Who is an innocent agent?
If the defendant asks someone to do something that the defendant knows in an offence, but the other party is unaware, the defendant can still be guilty of the offence as a principal offender. The reason is the unaware party is effectively just an instrument for the defendant to commit their crime
What is accessorial liability?
If a defendant aids, abets, counsels or procures another offender they will also be guilty of the principal offence
What is joint enterprise?
A doctrine that can impute criminal liability to a secondary participant if the participant assisted or encouraged the commission of a crime and in this assistance, the participant intended to assist of a crime committed by the principal.
What is the actus reus of attempt?
The defendant would be guilty if they did not complete the crime but do something more than merely ‘preparatory’ towards its commission
What is the mens rea for attempt?
Intention to complete the full offence and therefore cane higher than is required for the underlying substantive offence
If the defendant attempts to commit an offence that is physically impossible, can they still be convicted?
Yes
What is the offence of conspiracy?
An agreement between 2 or more parties to carry out an offence
What physical act is required for conspiracy?
The agreement between the parties to do something that is criminal.
Can a party conspire with someone who is not capable of agreeing to the conspiracy?
No
Can a party conspire with spouses?
No
Can a victim be party to conspiracy?
No
Can an agreement in conspiracy be conditional?
Yes
What is the mens rea for conspiracy?
The defendant must intend to form the agreement and must intend or know that all parts of the criminal act will be completed by themselves or other parties to the agreement
At what age is a child able to commit a crime?
10 years old
How would a court view a child who has committed a crime?
They would not be held to the same standard as an adult and would be held to an objective test
How do the court deal with a defendant who is unfit to plead?
The court will look alone at the actus reus.
The court can send the defendant to hospital for a period of time until they improve (indefinite for murder) supervision order or absolute discharge
What are the 2 types of intoxication?
Voluntary
Involuntary
