criminal law

Question 1

what is Diane roe’s definition of crime?

Answer 1

a crime is a wrong against the state, either by commission or omission. classified by the state as criminal and one to which a punishment has been attached criminal law, 3rd edition, 2005.

Question 2

what is a law?

Answer 2

a system of rules that governs a nation or state often supported by punishment or sanction.

Question 3

what is a common law?

Answer 3

where judges develop certain offences that aren’t in statute; eg murder.

Question 4

what is a case example for common law?

Answer 4

R v R 1991: an 18th century precedent stated that a husband could not be guilty of raping his wife. the HoL held that the statute of women in society had changed and had now achieved equality with men so if she did not consent to sex, the husband could therefore be found guilty of rape. this was introduced into law.

Question 5

what are the 2 elements needed to be found guilty of a crime?

Answer 5

1. actus reus= the guilty act
2. mens rea= guilty mind

Question 6

what are the 2 sides in criminal law, and what is the burden and standard of proof?

Answer 6

the prosecution and the defence
the prosecution has the burden of proving that the defendant is guilty.
sometimes the defence will have to prove that the d has a defence to the crime

Question 7

what are the two standard of proof?

Answer 7

1. on the balance of probabilities
2. beyond all reasonable doubt
   the standard to which it need to prove the guilt is ‘beyond all reasonable doubt’ in criminal law. the prosecution must prove that the defendant is guilty beyond all reasonable doubt.

Question 8

when is ‘on the balance of probabilities’ used and what does it mean?

Answer 8

on the balance of probabilities = it is more likely than not
in criminal cases, it is used when the defendant is claiming certain defences. the burden of proof then switched from the prosecution to the defence but the standard of proof drops to ‘on the balance of probabilities’ which is a lower standard.
if the d has raised a defence, then it is the job of the prosecution to disprove that defence existed at the time of the crime.

Question 9

what is the presumption of innocence?

Answer 9

this is a golden thread that runs through our legal system. a person is presumed innocent until proven guilty
woolmington v dpp 1935

Question 10

what is the principle of acts reus and mens rea in criminal law?

Answer 10

actus non facit reum nisi mens sit rea - the act itself does not constitute guilt unless done with a guilty minds.

Question 11

what are the 3 ways the actus reus can happen?

Answer 11

• a voluntary action
• an omission
• a state of affairs

Question 12

what is the voluntary act? (actus reus)

Answer 12

the d must have committed the act or omission voluntarily. if the act is done involuntarily, the defendant will not be guilty.
hill v baxter 1958

Question 13

what is a state of affairs? (actus reus)

Answer 13

the defendant has not acted voluntarily but has nonetheless been convicted of a crime. they are ‘being’ rather than ‘doing’ offences
larsonneur 1993 and winter v chief constable of Kent 1983
being drunk and disorderly

Question 14

what is an omission? (actus reus)

Answer 14

a failure to act; this does not usually result in someone being found criminally liable. however there are some exceptions to this rule.

Question 15

what are the exceptions that can lead to someone being guilty of omission?

Answer 15

1. there is a duty created by statute - Road traffic act 1988 & children and young persons act 1933
2. they have a contractual duty to act - pittwood 1902
3. there is a duty imposed by their official position - Dytham 1979
4. they have voluntarily accepted responsibility for another - stone & dobinson 1977
5. they have created a dangerous situation - miller 1983
6. there is a special relationship - khan 1988

Question 16

what is the principle of causation? (actus reus)

Answer 16

in order to prove someone guilty of a crime where a consequence is required, then it has to be proved that the defendant caused that consequence.

Question 17

what the defendant must be in order to be liable on causation? (actus reus)

Answer 17

• the factual causation of the consequence
• the legal cause of the consequence
• and there must be so intervening act which breaks the chain of causation

Question 18

what are the 2 tests to prove factual causation? (actus reus)

Answer 18

1. the ‘but for’ test: but for the actions of the defendant, the victim would not have died as and when they did
   r v white 1910 & R v Dalloway 1847
2. the de minimus rule: the d’s action must be more than just a minimal cause of the death but need not be substantial. in R v Kinsey 1996 said that the jury can be told that instead of using the ‘de minimis’ phrase, there must be “more than a slight of trifling link”

Question 19

how can legal causation be satisfied? (actus reus)

Answer 19

• that the original act was an operative and substantial cause of the consequence
• that the intervening act was reasonably foreseeable
• the thin skull rule

Question 20

what is meant by operative and substantial? (actus reus)

Answer 20

this test considers whether the original injury inflicted by the defendant is, at the time of death, still the operating (working) and substantial (significant) cause of death
are there any intervening act?
r v smith 1959, r v Cheshire 1993, r v Jordan 1956

Question 21

what is an intervening acts and what lies within it? ( actus reus)

Answer 21

the chain of causation must form a direct between the original act of the defendant and the final consequence. if the chain is broken, the defendant cannot be held liable - an intervening act.
novus actus interveniens = new intervening act
this can be an act of a 3rd party, the victim’s own act or a natural unpredictable event.
r v Jordan 1956

Question 22

what is the thin skull rule and where did it come from?

Answer 22

the defendant must take the victim as they find them. it came from the case of R v blaue 1975. the defendant argues he should not be responsible, however the court disagreed and said he must take his victim as he finds them.

Question 23

what is intention in mens rea, and what lies within it?

Answer 23

defines in r v Mohan 1975: “a decision to bring about, in so far as it lies within the accused’s power, no matter whether the accused desired that consequence of his act or not”
the d’s motive is irrelevant when deciding intention - subjective.

Question 24

what are the 3 different levels of mens rea, from highest to lowest?

Answer 24

1. intention
2. recklessness
3. negligence

Question 26

what are the 2 types of intention? (mens rea)

Answer 26

1. direct intention: the d wants a result and carries out an act to achieve it. generally, this is easier to prove based on the circumstances of the crime.
2. oblique intention: the d doesn’t want the result that occurs but realised that in acting as he does that there is a possibility that it will happen. the current direction it takes comes from Hedrick 1986 as confirmed in woollen 1998.
   can be illustrated in Hyam v dpp 1975

Question 27

what are the steps that must be taken to decide intention? (mens rea)

Answer 27

guidelines given in Moloney 1985; lord bridge stated that the questions to be asked were:
- was death or really serious injury a natural consequence of the d’s act?
- or; did the d foresee that consequence as being a natural result of the act?

guidelines from Hancock & shank land 1986: lord carman stated that the Moloney guidelines were unsafe and misleading as probability was not mentioned.

jury needed to ask 2 questions:
1. how probable was the consequence which resulted from the d’s voluntary act? and;
2. did the defendant foresee that consequence?

Question 28

what does recklessness concerns in mean rea?

Answer 28

concerns the taking of an unjustified risk.

Question 29

what tests lies within recklessness? (mens rea)

Answer 29

the standard that the court would test against used to be ‘objective recklessness’ and was known as caldwell recklessness. in caldwell the court asked what a reasonable person might have foreseen, not the particular defendant.

objective: a test that considers not the particular d in question, but what another average, reasonable person would have done or thought if placed in the same position as the d.
subjective: as assumption relating to the individual in question

subjective recklessness - established in r v Cunningham 1957
court asks: “was the risk in the d’s mind at the time the crime was committed?”

Question 30

what are the non-fatal offences and what act is it under?

Answer 30

offences against the persons act 1861
1. assault
2. battery
3. s.47 assault occasioning actual bodily harm
4. s.20 grievous bodily harm
5. s.18 grievous bodily harm with intention

Question 31

what is assault and what act provides that?

Answer 31

assault is not contained within statute, it is a common law offence. s.39 criminal justice act 1988 provided that assault is a summary offence with a maximum sentence on conviction of six months’ imprisonment.

Question 32

what is the actus reus of assault?

Answer 32

any act which causes the victim to apprehend the immediate infliction of violence. words alone can amount to an assault - London v dpp 1976 & r v Ireland 1997
smith v chief superintendent of woking police station 1983.

Question 33

what is is the mens rea of assault?

Answer 33

as defined in r v savage 1992, is that the defendant must have either intended to cause the victim to fear the infliction of immediate and unlawful force or must have seen that such fear would be created (subjective recklessness)
it must be believed that te d in question foresaw the consequence of their action but took the risk anyways - r v Cunningham 1957

Question 34

what is battery, and what act does it fall under?

Answer 34

battery is a common law offence. s.39 CJA 1988 provides that battery is a summary offence with a maximum sentence on conviction of 6 months’ imprisonment. common assault

Question 35

what is the actus reus of battery?

Answer 35

the key distinction for battery is that the physical force most be unlawful and not a mere accident. collins v wilcock 1984
the application of force does not need to be direct. hayseed v dpp 2000 & Thomas 1985
battery can be committed by omission where there is a duty to act.

Question 36

what is the mens rea for battery?

Answer 36

the intention or recklessness to apply unlawful force on another, as confirmed in r v Venna1976

Question 37

what is actual bodily harm and what act gives its meaning?

Answer 37

the statutory offence of ABH is set out in s.47 offences against the person act 1861 (OAPA), which provides that it is an offence to commit an assault occasioning actual bodily harm. the offence may also be committed by battery. it is a triable either way offence.
the max sentence is five years custody; this can be aggravated if the motive was racially or religiously motivated.

Question 38

what is the actus reus of ABH?

Answer 38

it can be broken down into 3 elements:
1. assault or battery
2. occasioning
3. ABH
(in exams define the actus reus for both assault and battery)
the assault or battery must occasion ABH. the chain of causation therefore needs to be stablished between the d’s act and the harm caused. for there to be criminal liability, there must be an unbroken chain of causation - r v Roberts.
the definition of what constitutes ABH was classified in the case of miller 1954 as ‘hurt or injury calculated to interfere with health and comfort); can be physical or psychological harm.
the case of chan fook 1994 also makes the point that the injury needs to be more than a superficial wound.
‘actual’ = injury doesnt need to be permanent, it should not be so trivial as to be insignificant

Question 39

what is the mens rea for ABH?

Answer 39

the mens rea is the same for battery and ABH. there is not requirement to prove any extra mens rea for ABH, as per Roberts 1971 and confirmed in r v savage

Question 40

what are sentencing aggravating factors?

Answer 40

• use of weapon
• targeting vulnerable victims
• influence of drugs or alcohol
• involved abuse of power or took advantage of a position of trust
• age
• targeting due to hate

Question 41

what are some mitigating factors to sentencing?

Answer 41

• the assault consisted only of a single blow
• the assault was an isolated incident
• offender has shown remorse
• good character
• a serious medical condition
• lack of maturity, learning disability or mental disorder
• if d pleads guilty early on

Question 42

what is s.20 grievous bodily harm and what act sets it out?

Answer 42

the statutory offence of GBH is set out in s.20 offences against the person act 1861 (OAPA), which provides that it is an offence to maliciously inflict GBH or wound the victim. the term grievous is defined in dpp v smith 1961 as really serious harm and confirmed in Saunders 1985.
s.20 GBH is a triable either way offence with the max sentencing of 5 years’ imprisonment.

Question 43

what is the actus reus of s.20 GBH?

Answer 43

can be proved by either showing an infliction of GBH (r v Clarence 1888 & r v m’loughlin) or a wounding of the victim.
in Dica 2004 the meaning of the word inflict was widened to include recklessly transmitting HIV to an unaware victim.
a wound requires a breaking in the continuity of the skin, usually resulting in bleeding. in moray v brooks 1834, it was held that both the dermis and the epidermis must be broken.

Question 44

what is the mens rea for s.20 GBH?

Answer 44

defined by the word maliciously. the case of moat 1967 decided that it does not need to be established whether or not the defendant intended or was reckless as to the infliction of GBH or a wound

Question 45

what is s.18 grievous bodily harm with intent and what act sets it out?

Answer 45

the statutory offence of grievous bodily harm with intent is set out in s18 OAPA 1861, which provided that it is an offence to intend to maliciously wound or cause GBH.
s.18 is an indictable offence. the maximum sentence for s18 OAPA 1861 is life imprisonment, reflecting the gravity of s18 in comparison to s20 of the same act.

Question 46

what is the actus reus for s.18 GBH with intent?

Answer 46

either maliciously wounding or causing GBH. it refers to the term cause as opposed to inflict and though they are not the same (r v Ireland) they have been taken to mean that causation is required.

Question 47

what is the means rea of s.18 GBH with intent?

Answer 47

the key difference between s20 and s18 is that s18 can only be proved with intention (direct or oblique) whereas s20 can be established with recklessness or intention to cause some harm. it has 2 aspects:
1. the d must maliciously wound or cause GBH
2. the d must have specific intent to either cause GBH to the victim or to resist or prevent the lawful apprehension or decision of any person.

Question 48

what do you not need to prove in a strict liability case?

Answer 48

for crimes of SL, it is not necessary to prove mens real. the defendant will be found guilty if they have committed the actus reus.
pharmaceutical society of GB v storkwain ltd 1986.
strict liability cases create absolute liability. no mens rea is requires for such offences and the actus reus does not need to be voluntary.
winzar v chief constable of Kent 1983

Question 49

what is the starting presumption for SL cases?

Answer 49

is that there is a presumption that mens rea is always requires. this is for courts to decide. r v prince 1875 and r v hibbert 1869
callow v tillstone 1900

Question 50

what is a SL defence?

Answer 50

‘due diligence’ - the d can argue that they took all reasonable care to prevent the consequence - should’ve been available in callow v tillstone.
the defence of mistake is not available for SL offences. candy v le cocq 1994

Question 51

what is the main problem with strict liability offences?

Answer 51

deciding which offences should be labelled as strict liability. most strict liability crimes are found in statutes but there are 4 that found in common law:
- public nuisance
- criminal libel
- blasphemous libel
- criminal contempt of court

many of the offences created by statutes are designated as SL offences by the courts; classed as regulatory offences because they regulate various types of behaviour.

based on judge’s interpretation of the wording.
gammon (hong kong) ltd v attorney general of Hong Kong 1984

Question 52

what are the 4 gammon factors established in gammon (hong kong) ltd v attorney general of Hong Kong 1984?

Answer 52

courts always start with the presumption that mens rea is always required then move of to 4 tests:
1. to see if the wording of the statute indicates strict liability (parliaments intention) - words such as knowingly or intentionally requires mens rea - alpha cell v Woodward
2. to decide if the offence is of a regulatory nature to a true crime - true crimes are those to which stigma can be attached to - sweet v parsley
3. to see whether the issue involved is an area of social public concern - harrow London borough council v shah
4. the gravity of the punishment - the more serious the criminal offence and punishment the less likely is is to be SL - callow v tillstone

Question 53

evaluate strict liability

Answer 53

advantages: time and cost of proving mens rea; protection of society by promoting a higher standard of care; the ease of imposing SL acts as a deterrent; proportionality of the punishment appropriate for SL
disadvantages: possibility of injustice; role of judges; is it actually a deterrent?; does it breach the ECHR?