Criminal Law

Question 1

In criminal cases who has the burden of proving a crime has been committed? When may this burden be reversed?

Answer 1

The burden of proving a crime has been committed as on the prosecution. The CPS must prove it the defendant does not need to prove anything.

In some certain situations there is a reversal.
- if the defendant wishes to raise certain defences, the defendant will have the burden of proving the defence. For example if a defendant wishes to raise the defence of diminished responsibility they must prove it on the balance of probabilities.
- sometimes within the elements of the offence there is an exception that negates the offence in these offences. Once the prosecution is made out the primary evidence. It’s for the defendant to prove, on the balance of probabilities that it falls within the exception.

Question 2

What is the evidential burden?

Answer 2

Certain defences such as self-defence, the defendant must raise for the court to consider, this is the evidential burden of proof however once the defendant raises the defence the prosecution then has the burden of proof of disproving it, this is the legal burden of proof

Question 3

What is a strict liability offence?

Answer 3

An offence that does not have a mens rea, the offence is committed if the actus rea is complete this. includes driving without insurance and driving under the influence

Question 4

When can an omission be a criminal act?

Answer 4

In most offences, the act is a positive act but in certain circumstances failure to act can amount to conduct.

2 requirements must be satisfied for a failure to act to amount to criminal offence:
- There must be a duty on behalf of the defendant act and
- The defendant must have breached duty by failing to act sufficiently

Duty to act may arise in a number of circumstances, including:
Under statute
Special relationship for example, parent and child or doctor
Defendant voluntary assumed a duty of care for the victim
Duty imposed by contract such as railway guard
Defendant has created a dangerous situation and they are aware that they have done so

Question 5

What is a result crime?

Answer 5

It is a crime that requires a certain outcome for the offence to be committed.

Example - murder is a result crime whereas possession of a knife is a crime regardless of what happens to the victim so is not

Question 6

For a result crime, how is causation established?

Answer 6

The court will apply a two stage test:

Factual causation
- but for test. Must be cause of result.
- if more than one cause or D’s action slightly accelerates the results, this is sufficient

Legal causation - prevents conviction where factual causation is met but other factors such as lack of foreseeability makes it unfair
- action must be substantial and operative cause
- substantial means must be more than minimal, slight or trifling
- operative means that if the actions of someone else intervene between defendants act the result the defendant will not be liable

Question 7

When will the chain of causation be broken?

Answer 7

By defendant, if the intervention is a new act

By natural event, if the defendant and a reasonable person would not have foreseen the natural event

By the victim if a defendant and reasonable person would not have foreseen the victims act and the victims act is voluntary. To break the chain the actions must be so daft as to be unforeseeable however the thin skull principle applies.

Action of a third party will break the chain if the intervention is free deliberate and informed. Medical treatment is very unlikely to break the causation and will only do so if it is so independent and potent to make the original wound in the background

Question 8

What is the mens rea?

Answer 8

It is the mental element of an offence. The state of mind must have at the time of the actus rea in order to be guilty of the offence.

It’s not a motive

Question 9

What is the mens rea of intention?

Answer 9

Common form of men’s which applies to many different offences, including all offences against the person and murder

Can be satisfied in two ways:

Direct intention
- Most common
- intention = aim or purpose

Indirect intention
- where the prosecution can’t prove the defendant had direct intention. The court may find that the defendant had intention if the outcome is a virtual certainty of the act and the defendant realise the outcome as virtual certainty.

Question 10

What is required for indirect intention?

Answer 10

The result of the defendants act must be:
- A virtually certain consequence of their conduct and
- Realised by the defendant as being virtually certain

Indirect intention is only available for specific intent offences (where recklessness is not available as a form of men’s) it never applies to basic intent offences.

Question 11

What is a specific intent crime?

Answer 11

Where intention is the only form of mens rea available, they can only be committed intentionally and cannot be committed recklessly

Attempt is a specific intent crime, even if the crime attempted is not

Attempt
Encouragement and assistance
Murder
Wounding or causing GBH with intent se 18
Theft
Robbery
Burglary s9(1)(a)
Fraud by false misrepresentation

Question 12

What is transferred malice?

Answer 12

If a defendant has the intention to commit an offence against one victim but in advertently commits the offence against a different victim, the intent is transferred to the new victim

Person found guilty of an offence on the basis of transferred malice is usually guilty of 2 offences 1) the complete offence against the actual victim and 2) the attempted offence against the intended victim

Transferred malice only applies when the offence intended is the same as the one committed. It cannot be transferred from one offence to another

Question 13

What is recklessness?

Answer 13

Crimes of recklessness required lower level of culpability than those required for the defendant to intend the result

Recklessness requires that :
- The defendant sees the risk from the act and continues regardless (subjective, extent of risk is irrelevant) and
- In all the circumstances known to defendant it must be an unreasonable risk to take (objective)

Question 14

What are recklessness crimes?

Answer 14

Assault
Battery
Wounding or causing GBH s20
Criminal damage

Question 15

What is the test for an offence of negligence?

Answer 15

Even lower level of culpability than recklessness

Court asks:

1) Did the defendant of duty of care and
2) Did the defendant breach standard of care expected?

In some cases, the standard will be defined by statute and others it will be defined by common law

Always objective standard

Example careless driving

Question 16

What is a strict liability offence?

Answer 16

There is one that does not require awareness of all the all the factors constitute in the crime.

Defendant can be found guilty on the mere fact they committed the act

No mental state required.

Question 17

What is corporate liability?

Answer 17

A corporation can be held liable for criminal lacks however because it is distinct from owners there difficulties in prosecuting a corporation for a crime that requires a mental state.

Prosecution must find a controlling persons whose actions and mental state can be said to be that of the corporation as a whole

To fill in the gap Parliament has introduced specific offences that target corporations and do not require a mental element. These include things such as breach of health and safety standards. Liability also sometimes imputed if it fails to prevent certain offences

Question 18

What is the definition of murder?

Answer 18

A defendant commits murder when they:
- Cause (applying factual and legal causation)
- The death of another human being
- unlawfully
- With the intention to kill or cause GBH

Carries mandatory life sentence
Can be physical act or in action if the defendant has duty of care for the victim
Is not human being for the purpose of murder
Brain dead equals dead

Question 19

What are the different types of manslaughter?

Answer 19

Voluntary manslaughter
- where defence reduces

Involuntary manslaughter
- Unlawful manslaughter
- Gross negligence manslaughter

Question 20

What is voluntary manslaughter?

Answer 20

Occurs where AR and MR of murder is made out but there are partial defences that can reduce the offence from murder to manslaughter

Most common diminished responsibility and loss of control

Question 21

What are the requirements for a defendant to assert diminished responsibility?

Answer 21

Defendant must:
- Demonstrate an abnormality of mental functioning
- The abnormality must’ve risen from a recognised medical condition (broad)
- The abnormality must have substantially impaired the defendants ability to
1) understand the nature of their conduct
2) form rational judgement or
3) exercise self-control

The abnormality must provide an explanation of the killing

The burden of proof of diminished responsibility is reversed so the defendant must prove each element on the civil standard

Question 22

What are the requirements for a defendant to establish loss of control?

Answer 22

Defendant successfully raised loss of control they must show:
- Their role in killing resulted from a loss of self-control
- The loss of self-control was caused by a qualifying trigger namely
1) fear of serious violence against the V or another person or
2) a thing or things done or said which constituted circumstances of an extremely grave character and caused a defendant to have a justifiable sense of being seriously wrong and
- A hypothetical person of the defendants age and sex might have reacted in the same way

If the judge is satisfied that the elements of loss of control are made out the prosecution must then bear the burden of prove beyond reasonable doubt that the defendant did not lose control. If the prosecution cannot do this and defendant will be guilty of manslaughter rather than murder

Definition of trigger is unclear revenge is not a sufficient trigger and sexual infidelity alone is not a trigger

Question 23

What is involuntary manslaughter?

Answer 23

If the men’s of murder is not made out the defendant may still be liable for involuntary manslaughter

Unlawful manslaughter and gross negligence manslaughter are both examples

Question 24

What is a unlawful act manslaughter?

Answer 24

Defendant commits a crime that carries an objective risk to the victim and they die as a result

The act must be:
- intentional
- unlawful (underlying criminal act)
- Dangerous and
- The cause of death (applying the test of factual and legal causation)

Positive act is still required to satisfy the offence and cannot be committed by omission

Must satisfy test and the act must be the substantial and operative course meaning it must be more than a minimal cause and there must be no break in the chain of causation

Question 25

What is gross negligence manslaughter?

Answer 25

Covers cases where the defendant does not commit an offence or knowingly take a risk but acts in such an extremely negligent way that they are criminally culpable

Elements :
- The defendant owes the victim of duty of care
- The defendant breached the duty of care
- The breach caused the victims death
- There was a serious and obvious risk of death and
- The breach amounted to gross negligence

Failure to act maybe sufficient if it results from failing to act where there is a duty to assist

Breach of duty is established by comparing the defendants act to the standards of a reasonable person under that duty with the applicable expertise

Question 26

What is the definition of assault?

Answer 26

Occurs when a defendant either intentionally or recklessly causes another person to apprehend immediate unlawful personal violence

Actus rea
- The defendants conduct must make the victim believe that defendant will apply unlawful force to them immediately
- apprehension is belief not fear
- Words can be sufficient, but they can also negate assault conditional threat might also be sufficient

Mens rea
- The defendant must either
1) intend the victim to apprehend the application of a lawful force 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

Question 27

What is the definition of battery?

Answer 27

Because we defendant either intentionally or recklessly applies unlawful personal force upon another person

Actus rea
- Defendant must make contact with the victims body and the contact must be unlawful
- Application of forces to find very widely any unwelcome contact is sufficient
- Contact may be direct indirect delayed or by omission

Mens rea
- can be caused intentionally or recklessly
- The defendant must foresee the risk that their actions could cause them to apply unlawful force upon the victim and this must be unreasonable rise to take

Question 28

Can a person consent to battery or assault?

Answer 28

Consent is a defence to assault and battery if it is
- Express or implied to the defendant and
- given by someone with sufficient capacity freedom and information to make a choice

We given implied consent to touching that occurs in every day life for example, shaking a hand when meeting or touching another persons hand with when exchanging money or brushing on the train

Question 29

What is assault occasioning actual bodily harm?

Answer 29

Section 47 of the offences against the person act

Actus rea
- is that of assault and or battery plus causing actual bodily harm
- requirements of factual legal causation must be satisfied
- An injury required satisfying definition of ABH must be present

ABH injuries are any hurt or injury which is more than merely trifling includes things such as grazes bruising swelling temporary loss of consciousness

Men’s rea
- Same as assault or battery
- intention or recklessness as to whether victim will apprehend the infliction of immediate unlawful force or the application of unlawful force
- no need to intend or forseesee ABH injuries

Question 30

What is Grievous bodily harm under section 20?

Answer 30

Section 20 of offences against the person act

Actus rea
- causing either a wound or grievous bodily harm
- Wound is an injury where both layers of the skin are broken bruising is not enough
- GBH injuries are serious harm more serious and ABH injuries long periods of unconsciousness, broken bones, serious psychiatric injuries

Mens rea
- Intention or recklessness regarding some harm
- No need to foresee the level or type of injury caused
- Satisfied if the defendant intends to cause some harm or if they foresee the risk that some harm may be caused and in the circumstances known to the defendant it is a reasonable to take that risk

Question 31

What is grievous bodily harm within intent under section 18?

Answer 31

Actus rea
- Physical act of wounding or causing GBH

Men’s rea
- Defendant must:
- intend to cause serious harm or
- foresee the risk of some harm and intend to resist lawful apprehension

Question 32

Can an individual consent to ABH and GBH?

Answer 32

Generally not possible to consent to injury, subject to exceptions.

For it to be a valid defence the victims consent must be:
- expressed or implied in legally recognised manner
- must be effective and the victim must have capacity, information and freedom of choice and
- must come within a legally recognised category

Surgery
Body modification over 18
Religious practices
Sports - If actions are slightly outside the rules of the game, will not interfere but if a player has intentionally caused injury to another they can be prosecuted but there are exceptions for boxing and martial arts
Horse play
Sexual gratification - person consents to the risk of a sexual infection if they are fully informed by the other party but to intentionally infect someone else with a disease if they are aware the other party is not aware is not valid consent. Sado mechanistic practices that involve serious violence can be prosecuted, but the courts won’t interfere when it’s consensual

Question 33

What is the definition of theft?

Answer 33

Dishonest appropriation of property belonging to another but the intention to permanently deprive

Actus rea
- Appropriation is any assumption of the rights of the owner can be ongoing or repeated
- Property includes money and all other property including intangible property real property and personal property doesn’t include information
- Belonging to another include a partner stealing from copartners a director stealing from the company and an owner taking an item that was left on trust with another services rendered

Mens rea
- Defendant must be dishonest and intend to permanently deprive the victim if intends only to borrow and return it they’re not guilty of theft
- must have the intention to deprive at the time of taking the item take it and then change their mind still sufficient for theft
- Deciding whether the defendant is dishonest the court as the defendants knowledge as to the facts and ask itself whether the defendants behaviour was dishonest by the objective standards of reasonable and honest people

Three situations where defendant is deemed to not be dishonest
- Defendant believes they have a right to the property
- Defendant believes they would have the owners consent
- Defendant believes that the owner could not be discovered by taking reasonable steps

Question 34

What is robbery?

Answer 34

Defendant is guilty of robbery if they commit theft and immediately before or at the time use force on any person or put any person in fear of then and there being subjected to force in order to steal

Actus rea
- There must be a theft as part of the robbery, need to consider elements of theft
- Force can be satisfied by infliction of force, causing an apprehension of force or seeking to cause an apprehension of force
- Force must be at time of offense and in order to steal can’t be used afterwards

Mens rea
- Mental element is the same as that the theft must also intend to use force in order to steal

Question 35

What is burglary?

Answer 35

Two ways to commit burglary
Burglary by trespass within intent under section 9(1)(a)

And burglary by offences committed following trespass entry under section 9(1)(b)

For both types, the defendant must have:
- Knowingly or recklessly entered a building or any part of the building as a trespasser with any part of their body
- The building or part requires a structure of some degree permanence

For burglary by trespass within intent under section 9(1)(a) the defendant must:
- enter the building with the intent to steal anything in the building
- intent to inflict GBH on anyone in the building or
- intent to cause criminal damage to the building or anything inside the building

doesn’t matter whether they actually stole inflicted harm it just matters that there is intention to do so at the time of entry

For burglary by offence committed following trespassory entry under section 9(1)(b)
- no need to prove the defendant trespassed with the intention to steal inflict GBH, cause criminal damage but that after they entered the building the defendant actually did steal or try to steal something or inflict GBH or attend to inflict GBH on anyone in the building
- criminal damage is not an underlying offence

Burglary by trespass with intent is committed at the time of event

Burglary following trespassory entry is committed at the time of the underlying offence

Mens rea
- They’re both both types of defendant must know they are a trespasser
- For burglary within intent, defendant must intend to commit the relevant underlying offence at the point of entry
- For burglary following trespass assembly the defendant must also have the underlying offence mens rea

Question 36

What is aggravated burglary under section 10 of the theft act?

Answer 36

Defendant can be convicted if when committing a burglary they have with them:
- A firearm or imitation fire arm
- A weapon of defence or
- An explosive

For burglary with intent the item must be in their possession at the time of entry

For burglary by offence committed trespassory entry the item must be with them at the time of the commission of the underlying offence

Question 37

What is fraud by false representation?

Answer 37

A person commits fraud by false representation if they dishonestly make a false representation and intend in doing so to:
- Make again for themselves or another or
- To cause or risk to another

Actus rea
- Making a representation as to fact law of state of mind can even be made to a machine for example bank machine representation could be made via an agent
- False representation may be true or simply misleading

Mens rea
The defendant must:
- Know that the representation is or might be false of misleading
-act dishonestly and
- Intend to make a game for themselves or another or cause or risk loss to another

Question 38

What is fraud by failure to disclose information?

Answer 38

Where defendant dishonestly fails to disclose information they are under duty to disclose and intend in failing to do so to:
- make gain for themselves or another or
- to cause or risk of loss to another

Actus rea
- legal duty will arise if a defendant has a contractual duty to disclose for example of making a job application

Mens rea
- know it’s false or misleading act dishonestly, and intend to make a gain for themselves or another cause or risk of loss to another

Question 39

What is fraud by abuse of position?

Answer 39

Defendant commits fraud by abuse of position if they abuse their position in which they’re expected to safeguard the financial interests of another this can be by act or admission

Must be in a position that warrants their duty to safeguard the others interest by being in a position of trust or expressing loyalty, whether abuses occur occurred as the matter for the jury to decide

Defendant must intend to use position to make gain or cause or risk loss but do not need to know that they occupied position in which they are expected to safeguard the financial interest of another dishonesty is required

Question 40

What is criminal damage?

Answer 40

Committed when a defendant, without lawful excuse, destroys or damages property to belonging to another, intending to do so or being reckless as to whether that property is destroyed or damaged

Damage is given normal meaning but it can include situations where damages slight and can be repaired easily damage will impaired the usefulness or value of the item or involve expense to repair

Damage can be caused to physical property copyright and bank accounts are not included wild plants and fungi specifically excluded as well. Includes animals and land.

Property can include co-owned property but person cannot be guilty of criminal damage of their own property

Mens rea
- Defendant must intend to destroy or damage the property or be reckless as to whether the item will be damaged
- Must also know believe that the item belongs to another

Question 41

What defences are available to criminal damage?

Answer 41

The defendant will have a defence if they believe:
- That the owner did or would have consented to the damage or
- That the property is in immediate need of protection and this means the protection adopted is reasonable having regards to the circumstances

Question 42

What is aggravated criminal damage?

Answer 42

Same as normal criminal damage but three differences
- The property damage can’t belong to defendant or someone
- There is an additional men’s rare requirement defender must intend or be reckless as to the end engagement of life by damage caused to the property and
- The specific defences do not apply

Life does not actually need to be endangered

Question 43

What is arson and aggravated arson?

Answer 43

Arson is criminal damage by fire

Aggravated arson is aggravated criminal damage by fire

Fire must cause the damage smoke damage will not count that damage will be criminal damage

Question 44

When are two defendants considered co principle offenders?

Answer 44

If two defendants act together for a common purpose in committing the act are both considered to be principal offenders

Question 45

What is an innocent agent?

Answer 45

If a defendant asked someone to do something that defendant knows is an offence, but the other party is unaware, defendant can still be guilty of the offence as a principal offender

Question 46

What is accessorial liability?

Answer 46

If a defendant aids are bit councils or procures another offender, they will also be guilty of the principal offence

The indictment will include the word betting counselling and procuring

AR - aid abetting counsels procures
MR - must know specific offence or range of possibly offences

Question 47

What is aiding a betting counselling and procuring?

Answer 47

Aid
- helping or assisting in commissioning of an offence

Abet
- Encouraging or enticing an offence at the scene of the crime

Counsel
- Advising or soliciting crime usually beforehand and not at the scene

Procure
- Producing by endeavour

Question 48

What is an inchoate offence?

Answer 48

Attempt

A defendant is guilty of attempt to come in a fence if they do not complete the crime but do something more than merely preparatory
Need to be at the point of no return

The mens rea required is intention to complete the full offence
- can sometimes be higher than for the underlying substance of offence. If that could be committed recklessly or for attempted murder defendant must intend to murder someone whereas they can be guilty of murder if they intend only GBH .

Question 49

If a defendant attempts to commit an offence that is physically impossible to complete, can they still be found guilty of the offence?

Answer 49

Yes

Question 50

If the defendant having completed all acts they had intended and that resulted in no crime but they thought it was can they be guilty of an attempt?

Answer 50

No, that is legal impossibility even though they thought it was illegal. It’s not.

Question 51

How is attempt prosecuted?

Answer 51

A defendant charge with a completed crime may be found guilty of either the complete crime or an attempt as long as the evidence presented supports that

If it defendant is charged with only attempt, they cannot be convicted of the complete crime

Most offence is very punished to the same extent as completed. Crime courts tend to punish less severely.

Attempted murder carries discretionary life sentence rather than a mandatory life sentence

Question 52

What is the age of liability?

Answer 52

10 years old

Question 53

What is the test for whether a defendant is fit to plead?

Answer 53

They must be of sufficient intellect to comprehend the course of proceedings in the trial as to make:
- a proper defence
- Challenge a juror to whom they might wish to object
- to comprehend the detail of the evidence

Must be able to plead and instruct their lawyer if they cannot the court will hear evidence on the issue

Question 54

What happens if a defendant is not fit to plead?

Answer 54

The court will decide whether the defendant did the act or the emission charge against them as the offence

The court will decide on the actor sprayer alone they will not look at the mental element as a defendant has not been found legally responsible for the action

If the court finds the defendant has committed the act, there are variety of options
- Hospital order for a period of time or until they improve
- Supervision order
- Absolute discharge

If it’s murder, the quarters applies to send the defendant to hospital for indefinite period

Question 55

What effect can intoxication have on the mental state of a defendant?

Answer 55

In some circumstances the court may accept the argument that the defendant could not form the mens tea of the offence and find them not guilty.
Sharp distinction between voluntary intoxication and involuntary intoxication as well as between dangerous and non-dangerous drugs.

Question 56

When might involuntary intoxication negate men’s rea?

Answer 56

If the defendant formed the mental element of the offence in their intoxicated state it may negate however if it was formed due to their own desires or predilections, drunken intent is still intent and will not negate

Question 57

What does the court look at when defender becomes voluntary intoxicated?

Answer 57

Whether it was through a dangerous or non-dangerous substance and whether the offence committed as one of basic intent or specific intent

If a dangerous drug such as alcohol or illegal drugs will not negate mens rea

If a defendant becomes and intoxicated after taking prescription medication that is a non-dangerous substance and can negate

If the drug is dangerous, the court will consider whether the offence is one of basic or specific intent

If basic intent and can be committed either intentionally or recklessly a court will find the defendant who voluntary becomes intoxicated and then causes injury to victim has been reckless by becoming intoxicated and therefore satisfies the mental element for a basic intent offence

For specific intent offence such as GBH with intent this can be committed only intentionally, a court will not find a defendant who has voluntary intoxicated has the required mental state to desire the outcome of the offence

Subject to provision that drunken intent still intent

Question 58

Can intoxication be defence to a strict liability offence?

Answer 58

No, never as offence does not require any mental state

Question 59

What is self-defence?

Answer 59

Broad, it covers the defence of self, defence of another or property, prevention of crime and affecting lawful arrest

• provides a complete defence to any charge and a successful pleading will result in acquittal

Question 60

What are the requirements for the defence of self-defence?

Answer 60

• The defendant must be acting to protect themselves another or property or must be acting to prevent a crime or affect a lawful arrest
• defendant must have a subjective belief that force was immediately required and
• The amount of force to defendant uses must be reasonable based on the facts as the defendant believe them to be at the time reasonable means proportionate

Can be pre-emptive

Question 61

What is the householder exception?

Answer 61

When an intruder enters someone’s house, the level of force seem to be reasonable is higher than other circumstances

Householders can use any force that is not grossly disproportionate or not so disproportionate as to be unreasonable and still rely on defence

The court will take into account decisions that are made in the heat of the moment deciding what amounts to grossly disproportionate

To fall into the exception, the defendant must be in a dwelling must not be a trespasser and must believe the victim is a trespasser

Question 62

What is defence of necessity?

Answer 62

Requirements must be satisfied
- act required to avoid some inevitable and irreparable evil
- defendant did only what was reasonably necessary and
- the evil inflicted was not disproportionate to the evil avoided

Not available for murder. If faced with choice of death or killing another, legally obligated to sacrifice own life

Question 63

What is the defence of duress and when is this available?

Answer 63

Very restrictive. Can be relied on if subjected to threats and committed to avoid threats being realised.

7 restrictions
- not available for murder or manslaughter
- threat of death or serious injury
- threat must be against defendant, close relative or friends, someone who defendant feels responsible for
- defendants must have good cause to fear taking into account nature of threat
- person of reasonable firmness with D’s characterises would have acted the same
- threat much be sufficiently immediately and must be no opportunity to take evasive action
- defendant cannot rely on them if they have voluntarily associated with the maker of the threat knowing they have criminal tendencies

Question 64

How is dishonesty assessed?

Answer 64

Standard of reasonable honest person.

Objective standard does not matter what the person thought