Criminal Law Flashcards
What is the test for legal causation?
D’s act was a substantial and operating cause of the consequential harm
When can an act of God serve as a novus actus interveniens?
Where it is so powerful as to become the sole or immediate cause of the prohibited consequence
When can a third party act serve as a novus actus interveniens?
Must be FREE, DELIBERATE and INFORMED
Special test for medical treatment to constitute a novus actus interveniens?
The treatment must be PALPABLY WRONG.
If the complication is the natural consequence of the original injuries, the chain of causation will not be broken
Special test for V’s own acts to serve as a novus actus interveniens?
They must be so unexpected as to be UNFORESEEABLE
Wilful neglect / deliberate aggravation of wounds may not suffice!
What is transferred malice? Example?
Where the mens rea of one crime causes the actus reus of the same crime, through an unexpected route
E.g. A tries to stab B, misses and kills C by accident, A commits murder of C through transferred malice
NB: if original V is pregnant, no “double transfer” to unborn foetus
Definition of recklessness (2 points)?
- Subjective concept
- Either: (i) knowing disregard of the risk of harm or (ii) deliberately closing the mind to that risk
Which mens rea is determined on a wholly objective standard?
Negligence: duty of care owed and D fails to exercise the care of a reasonable person
What is the difference between basic and specific intent?
Bssic intent can be satisfied with recklessness.
Specific intent - ONLY intention will suffice
Define murder (4 points)
- Unlawfully
- Causing
- Death of a person
- With intention to kill or cause GBH
When will oblique intention be established for purposes of a murder charge?
- D foresees death or GBH as VIRTUALLY CERTAIN
- Death or GBH is in fact VIRTUALLY CERTAIN
What are the 4 partial defences to murder?
- Loss of control
- Diminished responsibility
- Suicide pact
- Infanticide
Result of successfully pleading a partial defence to murder?
Reduces offence to voluntary manslaughter
3 elements of the loss of control defence?
- Qualifying trigger
- Trigger caused D to lose self-control
- A person of (i) D’s gender (ii) D’s age and (iii) with a normal degree of tolerance and self-restraint might have acted as D did
Must loss of control be sudden to succeed in the partial defence? Main application?
Need not be sudden; delay between trigger and murder does not vitiate defence.
Main application is to battered wives who are abused over a long period of time
What are the 3 qualifying triggers for the loss of control defence?
- Fear of serious violence by V against D or another identified person
- Which: (i) was of an extremely grave character and (ii) caused D to have a justifiable sense of being seriously wronged
- D’s loss of self-control was attributable to a combination of matters
What is special about the burden of proof in the diminished responsibility defence?
Burden of proof lies on the defence, to the civil standard (balance of probabilities)
4 elements of the diminished responsibility defence?
- Abnormality of mental functioning
- Arising from a recognised medical condition
- Which substantially impaired his ability to form a rational judgment, exercise self control or understand the nature of his acts
- And significantly contributed to his killing V
What are the 3 main categories of involuntary manslaughter? Key unifying theme?
- Unlawful act manslaughter
- GNM
- Corporate manslaughter
Actus reus of killing is present but mens rea is not
3 elements of unlawful act manslaughter?
- Unlawful act by D
- Which was dangerous
- And was a significant cause of V’s death
What are the 3 key elements of gross negligence manslaughter? (Assume negligence proved)
- REASONABLY FORESEEABLE that breaching DoC would give rise to a SERIOUS AND OBVIOUS RISK OF DEATH
- Negligent breach of duty CAUSED V’s death
- Negligence was gross - REASONABLY PRUDENT person would have FORESEEN RISK OF DEATH
What are the 4 key elements of corporate manslaughter? (Assume negligence proved)
- Qualifying organisation
- Activities are managed in a way that causes death
- Organisation grossly breached a relevant DoC owed to V
- Substantially due to senior management
2 elements of assault?
- Intentionally or recklessly
- Causes V to suffer or apprehend immediate unlawful violence
Summary offence
2 elements of battery?
- Intentional or reckless
- Application of unlawful force
Summary offence
3 elements of assault occasioning ABH under S.47 OAPA?
- Intentionally or recklessly
- Committing an assault or battery
- Which occasions actual bodily harm (more than transient and trifling interference with health or comfort)
Either-way offence
What is the injury threshold for “malicious wounding” under S.20 OAPA?
Actual break in the surface of the skin - mere scratch to outer skin is NOT sufficient
Either-way offence
3 elements of malicious wounding or inflicting GBH under S.20 OAPA?
- Unlawfully
- Maliciously (intentionally or recklessly, with foresight that some form of unlawful bodily harm would occur)
- Wounding or causing GBH
Either-way offence
What are the 2 qualifying mens rea for the S.18 OAPA offence?
Either intends to:
1.Cause GBH or malicious wounding OR
2. Prevent or evade a lawful arrest AND intends / is reckless as to causing harm
Indictable
2 elements of self-defence
- HONEST BELIEF that the use of force is NECESSARY to DEFEND themselves or another or PREVENT A CRIME
- Was the force REASONABLE in the circumstances as D BELIEVED them to be?
3 nuanced points when assessing if D used a reasonable degree of force for purposes of the self-defence test?
- No requirement to RETREAT
- PRE-EMPTIVE strikes permitted if D genuinely believes an imminent attack is likely
- Relevant circumstances are those that D GENUINE (even if MISTAKENLY) believed
4 elements of the modified “householder” test for self-defence?
- D is in a DWELLING and NOT as a trespasser
- D REASONABLY BELIEVES that V ENTERED AS A TRESPASSER
- Force used by D was not GROSSLY DISPROPORTIONATE in the circumstances as D believed them to be
- D’s force was REASONABLE in the circumstances as they believed them to be
What is an exception to the principle that the reasonableness of force used must be assessed according to the circumstances as D subjectively believed them to be?
If the mistaken belief was induced by VOLUNTARY INTOXICATION, they cannot rely on the mistaken belief
2 step test for duress defence?
- D REASONABLY BELIEVED that if he did not commit the crime, he would IMMINENTLY be KILLED or SERIOUSLY INJURED
- A sober person of REASONABLE FIRMNESS, sharing D’s CHARACTERISTICS, would have responded by PARTICIPATING in the offence
3 cases where the duress defence is unavailable?
- Murder
- Attempted murder
- Threat arose because of D’s voluntary association with known violent criminals
3 elements of necessity test?
- PRESSURE brought to bear on D’s will
- OBJECTIVE THREAT to D or others
- D can be said to have acted REASONABLY AND PROPORTIONATELY to avoid the threat of death or serious injury
2 cases where necessity defence is unavailable?
- Murder
- Assisted suicide
Age of criminal responsibility?
10 years old
When will a mistake of fact be a defence?
If it prevents D forming the mens rea for that offence (e.g. if mens rea requires AWARENESS of a particular situation)
When will a mistake of law be a defence?
Usually never, UNLESS knowledge of civil law is required for the offence (e.g. theft, criminal damage)
How can intoxication serve as a defence to criminal liability?
Where the level of intoxication prevents D from having: (i) the necessary mens rea or (ii) the requisite level of subjective fault to commit the offence
3 key limitations of the intoxication defence?
- Intoxication can only provide a defence to a crime of specific intent.
- Intoxicated mistakes generally not enough to refute criminal liability
- If the person gets intoxicated to summon up Dutch courage to commit a crime, intoxication will never be a defence
2-step test when assessing the consent defence?
- Fact - Did V consent expressly or impliedly to what was done? (must be REAL and FULLY INFORMED)
- Policy - Any public policy considerations that would invalidate consent
Unique feature of the consent defence?
Prosecution bears the burden of proving lack of consent
3 elements of criminal attempts?
- More than merely preparatory act (“past the point of no return”)
- Intending (oblique intention suffices)
- To commit an indictable offence
What is the relevance of impossibility to the offence of criminal attempt?
Impossibility is NOT a defence: possible to attempt an offence even if the facts mean that committing the offence is impossible
3 elements of criminal conspiracy?
- Agree with 1 or more people
- To carry out an offence
- Intending both to carry out the agreement and the offence
NOT possible to conspiry with: (i) intended V (ii) spouse (iii) minor
Two forms of common law conspiracy?
Strange feature?
2 or more people agree
1. To defraud, posing a risk of loss
2. To do an act which tends to corrupt public morals or outrage public decency
The intended act need not even be criminal outside of the conspiracy
What are two notable defences to the crimes of encouragement / assistance?
- Encouragement or assistance is REASONABLE in the circumstances
- Offence encouraged or assisted was created to protect the SAME CATEGORY OF PEOPLE D FALLS IN
What is the mens rea of encouraging / assisting an offence?
BELIEF that it will be committed
What is the definition of a secondary offender?
Someone who assists or encourages another person to commit a crime WITHOUT DIRECTLY CAUSING ACTUS REUS
What are the six categories of actus reus with respect to accessory liability?
Unifying theme?
- Aiding
- Abetting (inciting by aid)
- Counselling
- Procuring
- Encouraging
- Assisting
Accessory’s conduct must be CAUSALLY LINKED to the principal offence
Accessory liability is always derivative. Name one implication and two exceptions.
- Implication - If principal did not commit AR, then accessory liability cannot arise
- Exceptions: (i) liability of accessory may sometimes EXCEED principal’s liability and (ii) accessory may be liable even if principal is ACQUITTED
3 elements of mens rea for accessory liability?
- Intending to do the act constituting secondary participation
- Knowing the essential matters constituting the the principal offence
- Foreseeing D may act with the requisite mens rea
What must a potential accessory do in order to effectively withdraw from the criminal enterprise?
UNEQUIVOCALLY COMMUNICATE change of mind
- Simple communication sufficient before offence begins
- After offence begins, D must COUNTERMAND or REPENT
In secondary liability, what causal link must there be between D’s act and the principal offence?
Normally none: the fact that D’s conduct makes NO MATERIAL DIFFERENCE is not fatal to liability.
HOWEVER for assistance and encouragement: requires SOME impact on the COURSE OF CONDUCT
4 elements of simple criminal damage?
- Intentionally or recklessly
- Destroys or damages property
- Belonging to another
- Without lawful excuse
2 points about qualifying “damage” for purposes of criminal damage offences?
- Need not be PERMANENT
- Need not be VISIBLE / TANGIBLE as long as it affects VALUE OR PERFORMANCE of property
What 3 new elements apply in aggravated criminal damage
- D must be reckless as to ENDANGERMENT OF LIFE
- Property NEED NOT BELONG TO ANOTHER
- Lawful excuse defence has limited application
Definition of basic and aggravated arson?
Committing simple or aggravated criminal damage respectively, by the use of FIRE
Basic arson - either-way
Aggravated arson - indictable; max LIFE SETENCE
What are the two types of lawful excuse when defending criminal damage charges?
- Consent: Genuine belief that (i) a person entitled to consent, (ii) in fact consented to the destruction or damage of the property
- Protection of property: (i) Genuinely believed property, right or interest was in immediate need of protection and (ii) the means of protection was objectively reasonable in the circumstances
What are the 5 elements of theft?
- Appropriation (assumption of the rights of the owner)
- Property belonging to another (possession and control will suffice)
- Intending
- Dishonestly
- To permanently deprive him of it (regardless of whether V actually suffers any loss)
Two unusual instances amounting to theft?
- Receiving property by mistake and failing to return it to person with LAWFUL OWNERSHIP OR CONTROL
- Having specific instructions to deal with property one way, but intentionally dealing with it another way
3 statutory examples where appropriating property is NOT seen as dishonest?
- GENUINE BELIEF that they have the LEGAL RIGHT to appropriate
- GENUINE BELIEF that if the owner knew, they would CONSENT to the appropriation
- GENUINE BELIEF that the owner of the property COULD NOT BE LOCATED if REASONABLE STEPS were taken to do so
2-stage test for dishonesty set out in Ivey v Genting Casinos?
- ACTUAL STATE OF KNOWLEDGE OR BELIEF D possessed at the time
- In light of that knowledge/belief, and any other relevant circumstances, determine if D’s behaviour is DISHONEST by the OBJECTIVE standards of ORDINARY, REASONABLE AND DECENT PEOPLE
3 elements of burglary
- Entering a building as a TRESPASSER
- INTENDING to trespass
- iNTENDING to commit THEFT, GBH OR CRIMINAL DAMAGE
Building = permanent structure
What is the main difference between S.9(1)(a) and (b) burglary?
S.9(1)(b) additionally requires prosecution to prove the actus reus and mens rea of the ULTERIOR OFFENCE (in addition to the AR and MR of the burglary)
What additional element is required for aggravated burglary?
At the time of the burglary he has a WEAPON with him (including explosive, imitation firearm)
What additional requirements turn a theft into a robbery (4 points)?
- Immediately before or at the TIME OF THE THEFT
- He INTENTIONALLY
- Uses or threatens FORCE on any person
- In order to steal
What turns a theft into the offence of handling stolen goods?
Trick question! D can ONLY be convicted of theft OR handling - not both since the handling offence presupposes that theft has already occurred
4 elements of handling stolen goods offence?
- Handles or assists in **handling **
- Stolen goods
- Knowing or believing the goods are stolen
- Dishonestly
What kind of property does the offence of Taking Without Owner’s Consent apply to? When will it apply?
Vehicles only
Where D appropriates the vehicle WITHOUT intention to permanently deprive (e.g. joyrides)
5 elements of making off without payment?
- Made off from the spot
- Without paying
- Despite knowing that payment was due
- Dishonestly
- Intending to avoid payment
State, in generic terms, the actus reus and mens rea of general fraud (noting the options for each).
3 alternative options for AR; 3 cumulative elements for MR
- Actus reus - (i) false representation (ii) failing to disclose information or (iii) abuse of position
- Mens rea - (i) KNOWING that the representation may be UNTRUE or MISLEADING (ii) DISHONESTLY and (iii) INTENDING to make a GAIN for himself or CAUSE LOSS to another
Unique element of fraud by failing to disclose information? 2 examples?
There must be a LEGAL DUTY to disclose the information withheld.
Examples: (i) utmost good faith (insurance) and (ii) fiduciary relationship
Actus reus of fraud by abuse of position (2 points)
- D occupies a position where he was expected NOT TO ACT AGAINST the financial position of another
- D abused that position
4 elements of the offence of obtaining services dishonestly?
- D OBTAINS SERVICES for himself or another person
- KNOWING that services are made available on the basis they may be CHARGEABLE
- INTENDING to AVOID PAYMENT
- DISHONESTLY
