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Ethics and LKFP 2 > Criminal Law > Flashcards

Criminal Law Flashcards

1
Q

What is the legal burden of proof?

A

It is on the prosecution to make out all elements off the offence, including (in most cases) disproving the defence

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2
Q

What is the evidential burden of proof?

A

It is for the prosecution to provide sufficient evidence for each element of the offence. This may include police interviews, witness or expert evidence, and forensic evidence like fingerprints or DNA

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3
Q

What is the standard of proof?

A

Beyond reasonble doubt

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4
Q

What is the standard of proof for a defendant putting forth a defence?

A

Balance of probabilities

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5
Q

What are the three categories of crime?

A

Conduct/Result/Circumstances

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6
Q

What is a conduct crime?

A

A crime that requires D to behave a certain way. The conduct is criminalised. Usually voluntary.

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7
Q

What is a result crime?

A

A crime where the consequences must follow D’s actions for the AR to be satisfied. IE- murder needs to end with the death of a human being

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8
Q

What is a circumstance crime?

A

AR for these crimes is simply a state of affairs or circumstances. IE- A drunk person sitting behind the wheel of their car, even if it is stationary, is an offence under RTA 1988

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9
Q

Can you be liable for an omission?

A

Yes in certain circumstances

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10
Q

Are there statutory omission offences?

A

Yes IE- duty to care for your own offspring under Children Act 1989

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11
Q

What are the common law offences where a duty arises?

A

Duty arising via contract (i.e a train guard or a doctor)
Duty arising via special relationship (either voluntary or statutory)
Duty arising via creation of a dangerous situation (arson for example)

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12
Q

What are the two elements for causation?

A

Factual and legal causation

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13
Q

What is factual causation?

A

But for D’s conduct (or lack of), the consequence would not have occurred

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14
Q

What are the issues with the ‘but for’ test?

A

The scope is very wide and so many people could be considered involved even if they realistically were not involved

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15
Q

What is legal causation?

A

D’s conduct (or lack of) must be a substantial and operating cause of the consequence

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16
Q

What are the main rules to be considered when deciding on legal causation?

A
  • The consequence must be attributable to the culpable act/omission
  • The culpable act/omission must be a more than minimal cause of the consequence

-The culpable act need not be the sole cause (can be multiple causes)

  • The D must take V as they find them (eggshell skull rule)
  • The chain of causation must not be broken
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17
Q

What are the three ways the chain of causation may be broken?

A
  • V acts in a certain way
  • 3rd party contribution
  • An event occurs between D and end result
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18
Q

What are the rules around V’s acts breaking the chain of causation?

A

Happens rarely. Must be after act/omission but before consequence, and must also be free, deliberate and informed.

Suicide and escape (if reasonable) are examples of V’s acts where the chain is NOT BROKEN

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19
Q

What must be considered in ‘escape’ cases?

A

How forseeable V’s response was to the escape. Cannot be ‘daft’ .

IE- V jumping out of a slow-moving car and sustaining injuries to avoid sexual assault would not break the chain.

V jumping out of a car going 50mph and getting hit by a van and dying because he was threatened with a slap over petrol money DOES break the chain.

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20
Q

When can suicide break the chain of causation?

A

Happens rarely. An example of it NOT breaking the chain is a severely burned acid attack victim option for euthanasia in a country where it is legal. Depends whether it is ‘reas forsee’ that V would commit suicide due to their injuries.

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21
Q

How does 3rd party intervention impact the chain of causation?

A

D is not liable if the third party’s intervening act is either free, deliberate and informed, or NOT reas forseeable.

Medical negligence is rarely classed as 3rd party interference unless it is the ‘sole or main cause of death’. Must be ‘so independent of D’s actions, and so potent’ that it would break the chain.

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22
Q

What are intervening events and how do they break the chain of causation?

A

Usually ‘acts of god’. Very extreme unforseen events that removes liability from D. IE- A very random sudden thunderstorm flooding a ditch where V is laying after being knocked unconscious by D, and drowning.

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23
Q

Is intent subjective or objective (generally)?

A

Subjective

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24
Q

What is direct intent?

A

When D seeks a particular consequence or outcome.

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25
Q

What is indirect intent?

A

When the consequences are a by product of D’s aims

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26
Q

What is the test for indirect intent?

A

(1) Was the consequence virtually certain to occur from D’s act or omission (objective test)

(2) IF SO- Did D appreciate that the consequences were virtually certain (subjective test) (NOTE- Jury need to consider the likelihood of D being truthful regarding this)

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27
Q

What is recklessness?

A

D taking an unjustified risk

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28
Q

What are the two elements to recklessness?

A

The risk must be unjustified or unreasonable

D must be aware of the risk and take it

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29
Q

What is the test for assessing an unjustified risk?

A

Why did D take that risk, what was the risk and what was the likely consequences? (Objective test, ‘reasonable person’)

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30
Q

What is subjective recklessness?

A

Where the prosecution must establish whether D had a particular state of mind when taking the risk (D foresaw the risk)

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31
Q

True or false- a D may only be convicted of a crime with the MR of recklessness if the court is satisfied with subjective recklessness?

A

True

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32
Q

What are the tests for negligence (mens rea)?

A

Objective test-

Did D fail to forsee a risk that a reasonable person would have foreseen?

Did D forsee the risk but did not take steps to avoid it?

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33
Q

Which MR state is the ‘conscious taking of an unjustifiable risk’?

A

Recklessness

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34
Q

Which MR state is the ‘inadvertant taking of an unjustifiable risk’?

A

Negligence

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35
Q

What generally has to be shown to convict a D based on negligent MR?

A

That D’s conduct fell below an objective standard

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36
Q

What is a strict liability offence?

A

No MR required

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37
Q

What is the principle of transferred malice?

A

If D had the intent or recklessness for another similar kind of crime, then the MR transfers over to the new victim. Providing D has the AR for the offence against the new victim; this can be transferred.

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38
Q

What is a continuing act?

A

MR and AR must coincide but don’t have to be at the exact same time. Must be around the general time (single transaction).

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39
Q

What is basic intent?

A

Intent or recklessness

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40
Q

What is specific intent?

A

Committed intentionally aka murder

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41
Q

What is ulterior intent?

A

The MR required goes beyond the AR - extra needs to be proved by the prosecution. IE- Knowledge of being a trespasser/recklessness for burglary isnt enough. Have to prove UMR to steal something or inflict GBH inside the building

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42
Q

Define simple assault

A

D intentionally or recklessly causes V to apprehend immediate and unlawful personal force

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43
Q

What does unlawful mean?

A

Without consent

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44
Q

What does apprehend force mean in assault?

A

Believing that D’s acts will lead to harm against them. No need to prove fear, just that such contact may occur. Examples of harm that can be simple assault are threats, texts, being chased, pulling out a weapon. Letters and silence can also be covered.

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45
Q

What does immediate mean in relation to assault?

A

Imminent not immediate

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46
Q

True or false - conditional threats cannot be simple assault

A

False - providing they are imminent they can be

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47
Q

What is the mens rea for simple assault?

A

Intent or reckless

48
Q

Define battery

A

When a person intentionally and recklessly applies unlawful force to another

49
Q

Can force in battery be both direct and indirect contact?

A

Yes. Direct pushing can be an example of force, or being spat at, or even throwing a glass of water (indirect).

50
Q

What is the MR for battery?

A

The mens rea for battery involves either intention or recklessness as to the application of force. They may not intend to apply force but they are being reckless as to whether force will be applied.

51
Q

What is S 47 ABH?

A

AR = assault or battery. Occasioning = causing ABH= actual bodily harm.

52
Q

What does ABH have to be?

A

Injury that is more than transient or trifling.

53
Q

Can ABH be mental harm?

A

YES- examples such as reactive depression, anxiety neurosis.

NO- Strong emotions like rage or panic attacks

54
Q

What is the MR for ABH?

A

Intent or recklessness to simple assault or battery only. NO NEED TO SHOW MR FOR ABH.

55
Q

What is s20?

A

Whoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person

56
Q

What is the AR for s20?

A

Unlawfully wound or inflict GBH

GBH- really serious harm ie fractured skull, broken limbs

Wound- break in skin layers. No bruising

57
Q

What is the MR for s20?

A

Maliciously - aka intent or recklessly

58
Q

What is s18?

A

essentially s20 BUT WITH INTENT to do some GBH or intent to resist arrest

59
Q

What is the AR/MR for s18 for a regular victim?

A

AR of s20 and intent

60
Q

What is the AR/MR for s18 for a police officer victim?

A

AR of s20 and Intent to resist/prevent arrest and intent OR reckless for GBH

61
Q

Can consent be a defence to assaults?

A

NO unless surgery, circus acts, sports, tattooing. Consent must be valid.

62
Q

What is the definition of murder?

A

The unlawful killing of a reasonable creature in being under the Queen’s peace

63
Q

What is the MR for murder

A

Malice aforethought ( intent to kill or intent to Cause GBH)

64
Q

What is direct intent? (murder)

A

Death or GBH was D’s aim or purpose

65
Q

What is oblique/indirect intent? (murder)

A

Death or serious harm was not D’s primary aim but was a virtually certain consequence

66
Q

How do you establish oblique intent w murder?

A
  • Was the consequence virtually certain? (objective)
    -Did D appreciate this? (subjective)
67
Q

What are the two types of manslaughter?

A

Voluntary and involuntary

68
Q

Where are the three situations where voluntary manslaughter can be established?

A
  • diminished responsibility
    -loss of control
    -suicide pact
69
Q

True or false - DR, LoC and SP are only partial defences to murder

A

True

70
Q

What are the AR and MR for voluntary manslaughter?

A

Same as murder

71
Q

What are the four elements to diminished responsibility?

A
  • an abnormality of mental functioning WHICH

-arose from a recognised medical condition AND

-substantially impaired D’s ability to understand the nature of their conduct, and/or form a rational judgment, and/or exercise self control AND

-provides an explanation for D’s act or omission

72
Q

Who proves the defences to murder that result in voluntary manslaughter?

A

Defendant

73
Q

What constitutes an ‘abnormality of mental functioning’ for DR?

A

Usually a WHO recognised medical condition. Not a closed list and can develop over time. Both mental and physical and can include diabetes, alcohol dependency syndrome, depression

74
Q

Can you claim diminshed responsibility even if you are voluntarily intoxicated?

A

DEPENDS-

-If D is just drunk/drugged and does not have a condition/dependency related condition, cannot rely on DR.

-If D has schizophrenia but voluntarily gets drunk, D can claim DR as he still has the abnormality of mind

  • If D has alcohol dependency, jury will have to see how much of drink was needed for his condition and how much was voluntary
75
Q

What is accessory liability?

A

Whosoever shall aid, abet, counsel or procure the commission of any indictable offence whether the same be an offence at common law or by virtue of any act passed or to be passed, shall be liable to be tried, indicted and punished as a principal offender.

Aiding- helping or assisting principal. Must be more than present

Abetting - incites or instigates

counselling - encouraging offence

procuring - casual link between procurer and principal actions

76
Q

Can a principal having no AR mean the defendant will have no AR?

A

No

77
Q

What is the MR for accessory liability?

A

Intention to assist or encourage the commission of the principal offence combined with knowledge of the circumstances which constitute the offence.

78
Q

When will joint enterprise/accessory liability usually be used?

A

Gang violence

79
Q

What are the three general types of accessory crime?

A

(1) Where two or more people join in committing a single crime, in circumstances where they are, in effect, all joint principals

(2) Where D2 assists or encourages D1 to commit a single crime

(3) Where D1 and D2 participate together in one crime (crime A) and in the course of it D1 commits a second crime (crime B)

80
Q

What is transferred malice and how do you prove it?

A

The doctrine of transferred malice applies where the mens rea of one offence can be transferred to another. For example, suppose A shoots at B intending to kill B, but misses and hits and kills C. Transferred malice can operate so that the mens rea of A (intention to kill B) can be transferred to the killing of C. Consequently A is liable for the murder of C, despite the fact that he did not actually intend to kill C.

THE CRIME THAT OCCURS HAS TO BE THE SAME (same outcome but different V)

81
Q

What has to be proven for involutnary intoxication

A

(1) There is coercion;

(2) D entirely mistakes what he is consuming (see, e.g., Allen [1988] Crim LR 698);

(3) Drugs taken in accordance with medical prescription (see, e.g., R v. Quick [1973] 3 All ER 347)

82
Q

What kind of defence is involuntary intoxication?

A

A full defence

83
Q

If D is voluntarily intoxicated, what are the paths D can go down when establishing MR?

A

If drug taking was RECKLESS (VOLUNTARY) with no MRand the offence was basic intent - no defence

if the crime was SPECIFIC INTENT with no MR - D can be acquitted

If there was reckless drug taking AND MR- Convict of all

84
Q

What is non insane automatism

A

Complete defence where-

  1. There must exist an involuntary action arising from external source or reflex action
  2. The action must be completely involuntary
  3. The automatism must not be self-induced
85
Q

What does involuntary action arising from an external source mean with non insane automatism?

A

The involuntary action cannot arise from an inside source (must be external). Examples include sneezing, fainting and diabetes IF -

Hypoglycaemia = O for Outside source of too much insulin = Non-insane

Hyperglycaemia = Hyper as in a sugar rush with no insulin to counteract it- Inside source of the condition of diabetes itself = insane.

86
Q

What does the ‘action must be completely involuntary’ for non insane automatism mean?

A

For the defence of non-insane automatism to succeed, there must exist a complete loss of control. If the defendant retains control over their actions the defence will fail as they are not acting as an automaton

87
Q

What does ‘the automatism must not be self induced’ for non insane automatism mean?

A

If the defendant knowingly puts himself in a position of automatism, then the defence of non-insane automatism will fail.

Where the external factor is alcohol or drugs the defence of intoxication will apply and will therefore be dependent on whether the crime is one of basic intent or specific intent.

88
Q

What kind of defence is insanity?

A

Special verdict - NG by reason of insanity. Detention still possible.

89
Q

What are the M’Naghten rules?

A

Proof of insane automatism requires:
} (1) A ‘defect of reason’;
} (2) Which comes from a ‘disease of the mind’;
} It must be proved that the ‘defect of reason’ either:
(3) (a) caused D to be unaware of the nature and quality of his act or
(3) (b) caused D not to know that his act was wrong

90
Q

What can a ‘defect of reason’ be for insanity?

A

an inability to make rational judgments

need not be permanent

NOT sufficient D simply failed to reason properly

Defence not available:
‘to those who retain the power of reasoning but who in moments of confusion or absent-mindedness fail to use their powers to the full.’

91
Q

What can a ‘disease of the mind’ be for insanity?

A

The definition for what constitutes a disease of the mind is a legal definition and not a medical one.

It encompasses a number of things that doctors would be very reluctant to classify as such, for example diabetes IF HYPERGLYCAEMIA.

A disease of the mind relates to a disease affecting the mental faculties of reason, memory and understanding, and cannot arise from an external cause.

Case law examples include - sleepwalking, epilespy, harderning arteries and not just the usual ‘psych disorders’ as it can be DR if not aligining with the m’ngahten rules

92
Q

How do you prove either ‘ defect caused D to be unaware of the nature and quality of his act’ or
‘caused D not to know that his act was wrong’
for insanity?

A

Ability to see what he is physically doing and the consequences or whether its legally wrong. Both subjective as D needs to see if he thinks its wrong or what hes doing.

93
Q

What must the ‘substantial impairment’ for DR do to the defendant?

A

Impair their ability to -

  • Understand nature of their conduct AND/OR

*Form rational judgment AND/OR

*Exercise self control

94
Q

How is ‘substantial’ in substantial impairment understood in DR?

A

A question of degree the jury must decide. Fact dependant. Generally means important or weighty

95
Q

Define ‘impairment of D’s ability’ in DR

A

The D’s ability to do particular things has to be substantially impaired.

Examples include suffering from neurosis impacting the ability to form a rational judgment, or stabbing a friend in real life but fundamentally not understanding the friend wouldn’t come back to life.

96
Q

Explain how it is shown in DR that the abnormality of functioning for D ‘provides an explanation for the D’s acts or omissions in killing’

A

Casual link - depends on what extent D is responsible for own behaviour and how far the abnormality comes into it. Jury needs medical evidence to help with this.

97
Q

What type of defence for murder is loss of control?

A

Partial - goes to vol manslaughter

98
Q

Define loss of control

A

(a) D must lose self control;

(b)The loss of control must have a qualifying trigger; and

(c)A person of D’s sex/age with a normal degree of tolerance and self restraint and in the circumstances of D, might have reacted in the same or similar way to D.

99
Q

What is ‘losing control’ and how is it assessed?

A

Generally, D ‘snaps’ or reacts due to cumulative events such as abuse. No need to be sudden. Subjective in that the particular D must have lost control

100
Q

Can revenge be used for loss of control?

A

Nope and it invalidates the defence. Examples of revenge include signifcant delays betweens V words/actions and the ‘snap’, evidence of planning etc.

101
Q

What is the ‘qualifying trigger’ for LOC?

A

2 types - fear and anger

Fear- D fears serious violence to self or to another identified person. Subjective

Anger—LOC is attributable to things said or done that amount to circumstances of grave character, amounting to D having a sense of being wronged. OBJECTIVE

102
Q

Can sexual infidelity be a reason for LOC?

A

No UNLESS it is a part of other circumstances amounting to extremely grave character

103
Q

How is ‘similair reaction of D’s same age and sex’ assessed for LOC?

A

General characteristics same as D BUT only if these characteristics bear on tolerance and self restraint. IE a woman may be more scared than a man. Short temper or a particularly aggressive D is not enough.

104
Q

When can LOC be presented to the jury?

A

If the trial judge thinks that a properly directed jury could reasonably conclude the defence might apply

105
Q

What is involuntary manslaughter?

A

Same AR as murder but no MR of murder

106
Q

What are the two types of involuntary manslaughter?

A

Gross negligence and unlawful act

107
Q

What is unlawful act manslaughter?

A

D must do an unlawful act which is dangerous and causes V’s death, and has the MR of the unlawful act

108
Q

What crimes can be considered for unlawful act manslaughter?

A

Crimes with intent or recklessness. Just needs to be a criminal offence.

109
Q

How does the jury test for a dangerous act in unlawful act manslaughter?

A

‘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. Consider knowledge D would have had/should have at the offence (as a reasonable person would and not if D appreciated it)

110
Q

How do you prove ‘causes death’ in unlawful act manslaughter?

A

Rules of causation

111
Q

What is the MR for unlawful act manslaughter?

A

The MR for that offence (IE MR for assault)

112
Q

How is gross negligence manslaughter proven?

A
  • D owed V a DOC
  • D breached that duty
    -Breach caused V death
    -D’s conduct was grossly negligent
113
Q

How do you show DOC for gross neg manslaughter?

A

Clear duty ie occupier and visitor OR evidence is capable of establishing a duty (think duty of care in negligence and assuming a duty- forseeable V injured, aprroximate relationship and fair to impose a duty). Like in negligence, omissions can also lead to a breach.

114
Q

How can D breach their DOC in gross neg manslaughter?

A
  • D conduct falls below that expected of a reasonable person. No need to establish D aware of this.
  • If D has special knowledge ie doctor, they will be expected to meet std of care of a reaosnable person with knowledge or expertise
115
Q

How is ‘causes death’ shown in gross neg manslaughter?

A

Causation

116
Q

How is ‘gross negligence’ shown in gross negligence manslaughter?

A

Conduct of D must be sufficiently bad as to impose a criminal penalty. Cannot be a ‘simple lack of care’. Jury determines based on facts if it is ‘so bad as to be worthy of criminal sanction’.

117
Q

How is ‘risk of death’ shown in gross neg manslaughter?

A

A risk D’s conduct could cause death that a reasonable person would have seen a serious and obvious risk of DEATH and not merely injury.

Ethics and LKFP 2 (5 decks)

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