Criminal Law Flashcards
1
Q
Give the make up of a result crime
A
Conduct + circumstances + causation = AR
2
Q
Give the make up of a conduct crime
A
Conduct + circumstances = AR
3
Q
Examples of a result crime
A
murder
criminal damage
GBH
4
Q
examples of a conduct crime
A
fraud
rape
driving offences
5
Q
Authority for factual causation - ‘but for’ test
A
White (1910)
6
Q
Authority for the conduct being more than de minimis
A
Kimsey (1996)
7
Q
Authority for the conduct being blameworthy
A
Hughes (2013)
8
Q
Authority for the conduct being an operating cause of result
A
Smith (1959)
9
Q
What is the thin skull rule?
A
A defendant is liable for the victim’s unforeseeable and uncommon reactions to the defendant’s actions
10
Q
Authority for pre-existing physical conditions of the victims?
A
Master (2007)
11
Q
Authority for pre- existing religious beliefs of the victims?
A
Blaue (1975)
12
Q
Authority for drugs cases as an intervening cause
A
Cato (1976)
13
Q
Authority for third party conduct
A
Pagett (1983)
14
Q
Does a medical professional’s negligent treatment break the defendant’s chain of causation?
A
No
Cheshire (1991) - the doctor’s act would have to be so independent and so potent that it renders the defendant’s contribution insignificant
15
Q
What is subjective recklessness?
A
The court needs to be satisfied that the accused was predetermined to commit the act and had harmful intentions during the actus reus
16
Q
R v G (2004)
A
A person acts recklessly with respect to
A circumstance, when he is aware of a risk that exists or will exist
A result, when he is aware of a risk that will occur
And it is unreasonable
17
Q
How is D guilty of criminal damage?
A
Criminal Damage Act 1971 s1.1
D is guilty of criminal damage if
- She or he destroys or damages property
- Belonging to another
- Intending to do so
- Or being reckless
18
Q
What is the correspondence principle?
A
A person does not commit an offence unless he acts intentionally, knowingly or recklessly in respect to each of its elements (actus reus and mens rea together)
19
Q
What is transferred malice?
A
Mens rea directed at X, actus reus takes place, but to Y
Mens rea and actus reus must be for the same crime
20
Q
What is the modern definition of murder and where does it come from?
A
R v Cunningham - murder is the unlawful killing of a human being under the King’s peace, intending to kill or cause grievous bodily harm
21
Q
What is direct intention?
A
R v Moloney
D had direct intention if it was D’s purpose/ aim to bring about the prohibited result
22
Q
What is oblique intention?
A
R v Woollin
The jury is entitled to find intention if:
a. the result was a virtually certain consequence of D’s conduct
b. the defendant foresaw that it was a virtually certain consequence of his conduct
23
Q
Anatomy of Voluntary Manslaughter
A
Actus reus of murder + mens rea of murder + partial defence
24
Q
What is loss of control?
A
Partial defence to murder
25
Elements of loss of self- control
1. D must have lost self-control
2. D's loss of self-control must be attributable to a qualifying trigger
3. A hypothetical normal person might have reacted in the same or similar way to D
26
D must have lost self- control
D must have lost the ability to act by considered judgement or lost the normal powers of reasoning
Subjective
27
D's loss of self- control must be attributable to a qualifying trigger
Triggers
1. A fear of serious violence
2. If D lost self-control as a result of something said or done to D which was grave and made D have a justifiable sense of being wronged, D could have a qualifying trigger
3. Sexual infidelity cannot be a qualifying trigger
28
A hypothetical normal person might have reacted in the same or similar way to D
The circumstances of D include all of D's circumstances other than those which are only relevant to D's self control
29
What is diminished responsibility?
Partial defence to murder
Established when D kills or is part of the killing of another because D's medical condition causes an abnormality of mental functioning that substantially impairs D's ability
30
Elements of diminished responsibility
1. D has an abnormality of mental functioning
2. Has arisen from a recognised medical condition
3. Has substantially impaired D's ability to do one of more of the 3 things
4. Has provided an explanation of the killing
31
D has an abnormality of mental functioning
Needs medical evidence to prove
A state of mind so different from ordinary people
32
Has arisen from a recognised medical condition
Includes PTSD, bipolar, personality disorders, chronic depression, schizophrenia etc
Acute intoxication precluded as a medical condition
33
Has substantially impaired D's ability to do one (or more) of three things:
- understand the nature of D's conduct
- Form a rational judgement
- Exercise self-control
34
Has provided an explanation of the killing
Abnormality causes or is a significant contributory factor in causing D to kill
35
In DR, what if D had a recognised medical condition but was intoxicated?
D may still rely on DR if, despite the voluntary intoxication, the recognised medical condition substantially impairs D's ability
36
What is unlawful act manslaughter?
Committed when the defendant has done an unlawful, dangerous act which causes the death of a human being
37
What is the anatomy of UAM?
Base crime (AR+MR) + Causation + Death
38
elements of UAM?
1. The defendant must have done an unlawful act
2. The act must be objectively dangerous
3. The defendant's unlawful act must have also caused death
39
The defendant must have done an unlawful act
It must be an act - not an omission
40
The defendant's unlawful act must also be dangerous
If all sober and reasonable person would have foreseen that it must subject other persons to the risk of harm
41
The defendants unlawful act must have also caused death
It must be proved that D's unlawful and dangerous act is both the factual and legal cause of V's death
42
What is gross negligence manslaughter?
Committed when death is caused by grossly negligent conduct or omission
R v Adamako
43
Elements of GNM
1. The defendant owed a duty of care to the victim
2. The defendant breached that duty of care
3. The breach was grossly negligent
4. The breach gave rise to an obvious and serious risk of death
5. The breach of duty caused death
44
The defendant owed a duty of care to the victim
Duty of care arises whenever our conduct carries a foreseeable risk to those around us
Can be breached by act or omission
45
The defendant breached that duty of care
If conduct fell below the standard that could be expected of a reasonable person
46
The breach gave rise to an obvious and serious risk of death
This is an objective test, which requires a reasonable person in D's position, would have foreseen a serious and obvious risk of death
47
How to solve homicide in a PQ:
1. Find causation
2. Is it homicide? Did D kill V? - factual and legal causation
3. If so, did D have an intention to kill or cause GBH?
4. If so, are there any circumstances that may allow for a partial defence?
5. If not, was D involved in a criminal act? - Consider UAM
6. Did D owe a duty of care? - Consider GNM
48
What type of offences are assault and battery?
Common law and Statutory Offences
49
Which statute are common assault and battery contained in?
Criminal Justice Act 1988 s29
50
What is common assault?
Ireland; Burstow - "a person intentionally or recklessly causes another to apprehend immediate or unlawful violence"
51
What is battery?
Faulker v Talbot - "an intentional (or reckless) touching of another without consent of that person and without lawful excuse"
52
What is the actus reus of assault?
Apprehension of personal violence
Focus on V not D
53
What is the actus reus of battery?
Inflicting personal violence
Does not require prior common assault
There must be an act or an omission
Can be indirect (eg dropping a baby)
54
What is the mens rea for assault and battery?
Intention or recklessly: Venna
assault - as to causing V's apprehension of immediate violence
battery - as to application of force to V's body
55
How does someone commit non- fatal strangulation/ suffocation
A strangles another person
A does any other act to B that
- affects B's ability to breathe
- constitutes battery
56
What does bodily harm include?
Disease, recognised pyschiatric conditions, being unconscious, cutting hair
57
What does wounding mean?
Breaking the continuity of the whole skin or a like membrane
58
When does V's consent negative D's liability for an assault?
Up to the level of injury that is more than transient and trifling
59
What are the exceptional categories for consent to serious harm?
(some, organised) sport
rough horseplay
surgery and other medical interventions
(some) body modifications
(some) religious practises
60
What are the requirements for effective consent?
it must be informed and genuine
must be by someone with the capacity to consent
not be vitiated by fraud
or by duress
61
What are s74-76 in the Sexual Offences Act 2003?
s74 - standard interpretation of consent
s75 - rebuttable presumptions of consent - set of situations where we presume the victim was not consenting
s76 - irrebuttable presumptions of consent - it will be conclusively presumed that the victim did not consent
62
What is the actus reus for rape?
a. A penetrates the vagina, anus or mouth
b. B does not consent to the penetration
needs the choice, freedom and capacity
covered in ss 74-76
63
What is the mens rea for rape?
a. Intention to penetrate
intention has the ordinary meaning of intent as in Moloney or Woollin
b. Lack of reasonable belief in B's consent
reasonableness refers to the objective standard of what is reasonable
64
Which 3 aspects does section 74 affirm that a person needs to have to consent
freedom
choice
capacity
65
What is the rule for consent and intoxication?
Where the complainant voluntarily consumed substantial quantities of alcohol but remained capable of consent, that would not be rape
66
What is conditional consent?
Situations where B makes it clear that their consent is conditional on A doing something eg. using contraception
67
What are the irrebuttable presumptions?
Cannot be rebutted
1. Deception as to the nature and purpose of the act
2. Impersonation
68
What are the rebuttable presumptions?
a. any person using violence against complainant or causing complainant to fear immediate violence against them
b. any person using violence against complainant or causing complainant to fear immediate violence against another
c. complainant was unlawfully detained at time of act
d. C asleep or otherwise unconscious
e. Due to physical disability, C would not have been able to communicate if they consented
f. Administered to or caused to be take by C a substance which was capable of causing or enabling C to be stupefied or overpowered
69
Actus reus of assault by penetration (section 2)
A penetrates the vagina or anus of another person with a part of his body or anything else
The penetration is sexual
B does not consent to the penetration
70
Mens rea of assault by penetration (section 2)
The penetration is intentional
A does not reasonably believe that B consents
71
Actus reus of sexual assault (section 3)
A touches another person
The touching is sexual
B does not consent to the touching
72
Mens rea of sexual assault (section 3)
The touching is intentional
A does not reasonably believe that B consents
73
How does the SOA define touching?
Includes touching
- with any part of the body
- with anything else
- through anything
And, in particular, includes touching amounting to penetration
74
How does the SOA define sexual?
Sexual due to the circumstance
Sexual due to the nature
75
Which crimes can women commit in the SOA 2003?
Not rape but
- assault by penetration
- sexual assault
- causing a person to engage in sexual activity without their consent
76
Where is theft defined?
s1 of Theft Act 1968
"A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it."
77
What is appropriation?
Defined in section 3 of the theft act
To take for one's self
Conduct and not a result
It is a neutral concept
78
What does property include?
Defined in sectioj 4 (1) of the theft Act
money and all other property, real or personal, including things in action and other intangible property
79
What are some things that are not stealable property?
land
non- commercial foraging of mushrooms, flowers, fruits and foliage
wild animals not 'reduced into possession' of any person
human corpses and body parts unless they acquire different attributes through use
information
80
In what 3 senses can property belong to another?
by
possession
control
holding a right/ interest in the property
81
What is the standard for dishonesty in the Common Law?
Ivey
What was D's knowledge and understanding of the relevant facts?
From this perspective, was D dishonest by the standard of ordinary and decent people?
82
What is the intention to permanently deprive?
Uses the Moloney and Woollin standards for intention
The intention may be to treat the property as to D's dispose of, regardless of the owner's rights
Borrowing can count as theft
83
Summary of the 5 elements of theft:
Appropriation
Of Property
Belonging to another
Dishonesty
Intention to Permanently Deprive
84
What are the 2 burglary offences?
9. 1a) - a burglary by trespassing with intent to commit theft, GBH or criminal damage
9. 1b) - a burglary by trespassing where D commits theft or GBH
85
Burglary Actus Reus
Entry
As a trespasser - you can become a trespasser if it is beyond the purpose or in excess
Into any building or part of a building - structure must be permanent
86
Burglary Mens Rea
Mens rea as to trespass - the INTENTION to trespass
Mens rea as to the ulterior offence (theft, GBH etc)
87
When can conditional intent be applied?
In section 9. 1)a - trespass with intent
They are hopeful of stealing whatever is of value if they steal anything
Not sufficient for theft or section 9 . 1b
88
Where is robbery in the Theft Act 1968?
Section 8
89
Give an overview of robbery
It is theft + force
Can be the:
- actual infliction of force
- causing an apprehension of force
- seeking to cause the apprehension of force
Immediately before or at the time
Used in order to bring about theft
90
Robbery actus reus
There must be force or threat of force
Against a person
Immediately before or at the time of theft
In order to commit the theft
91
Robbery mens rea
Mens rea as to theft
Mens rea as to force or the threat of force
92
What is the statement of law on dishonesty for the jury?
The jury should be told that they should decide whether what D did was honest by the standard of reasonable, decent people; and if they thought it was, they should decide whether D knew that what he or she did was dishonest by those standards
93
Burglary 3 step
1. Has D knowingly or recklessly entered any building or part of a building as a trespasser?
2. Consider s9(1)a - did D have intent to steal, inflict GBH, or damage property upon entry?
3. Consider s9(1)b - did D, having entered as a trespasser, commit either theft or GBH? or attempt one of these?
94
Robbery 2 step
- Did D steal?
- Immediately before or at the time of doing so, did D use or threaten force?
95
What is the mens rea of inflicting GBH in Section 20 of OAPA?
Intention to inflict some harm or recklessness as to inflicting some harm
96
What is the mens rea of assault occasioning bodily harm in Section 47 of OAPA?
Mens rea of assault/ battery only - not as to higher level of harm
97
What is the mens rea of wounding with intent to do grievous bodily harm?
Intention to cause grievous bodily harm
98
What are the 3 scenarios when criminal conduct is defensible?
Justified, exempted and excused
99
What is limb one of self defence?
The trigger - the honest belief in the need to use force
100
What are the exceptions to limb one of self - defence?
Voluntary intoxication and provocation from D
101
What is limb 2 of self - defence?
The response - the amount of force used
Was D's amount of force used reasonable?
The force should be proportionate to the threat imposed
102
What does the CJIA do?
It codifies self-defence
It mirrors the common law provision
103
What is the difference in self-defence in householder cases?
The degree of force shifts from disproportionate to grossly disproportionate
104
What type of defence is duress?
Excusatory
105
Who bears the burdens in duress?
The defendant bears the evidential burden
The prosecution bears the legal burden
106
What are the two elements of duress by threats?
1. Factual check - was D compelled to act by the threatener or had good cause to fear him?
2. Would the reasonable person have acted the same?
107
What are the limits of duress by threats?
It does not apply to murder or attempted murder
The threat must be to cause death or serious injury
The threat must be directed as D, or 'immediate family' or to a person for whose safety D would reasonably regard him/herself responsible for
108
What does not count as a severe enough threat?
Psychiatric harm
Threats to reveal secrets
False imprisonment
pain, even severe pain
Sexual assault
109
What is the impact of a threat?
D must act because of the threat - threats accompanying a crime D would commit anyway would not count
Threats must relate to a specific crime
110
What is the rule in regards to voluntary exposure to being in a gang?
Duress does not apply
Hasan means D only needs to be associated with the gang
Don't make friends with the wrong people!
111
What is duress by circumstance?
Generally, the same rules apply to duress by threats
Focuses on situations where the threat is more indirect - comes from conditions or environment
112
What is statutory semi - duress?
Modern Slavery Act 2015
the defence of compulsion
Section 45 created a statutory duress- like regime
113
What is the difference for adults and u18s in the defence from MSA 2015
Adults - D compelled to commit a crime by slavery/ trafficking - subject to a reasonableness test
U18s - No need for compulsion - direct consequence of slavery and trafficking
114
What is the conduct element of actus reus?
D's act or omission required for the offence
115
What is the test for factual causation?
But for D's conduct, the prohibited result would not have occurred in the way it did
116
What is the function of the blameworthy test in legal causation?
To ensure there is a connection between the prohibited result and some fault of Ds
117
What does the 'dangerous' test in R v Church for unlawful act manslaughter need a recognition of?
Some physical injury, including minor injury
118
Where is the partial defence of diminished responsibility found?
Coroners and Justice Act 2009, s52
119
Who has the burden for proving the mens rea?
The prosecution
120
Describe subjective recklessness
D foresaw the risk and took it anyway
121
Where is fraud contained in statute?
Fraud Act 2006
Conduct based, not results based
122
Section 2 - fraud by false representation
A person is in breach if he
a. dishonestly makes a false representation, and -
b. intends, by making the representation -
i. to make a gain for himself or another, or
ii. to cause loss to another or to expose another to a risk of loss
123
In which 3 ways can there be representation?
1. representation by word, gesture or conduct
2. representation by omission
3. representation as to fact, law or state of mind
124
3 mens rea elements of fraud by false representation
1. knowledge either that it is or might be true or misleading
2. intention by such false representation to make a gain/ cause a loss/ risk of loss
3. dishonesty
125
Actus reus elements of fraud by failing to disclose information
- failure to disclose any or insufficient information ( can be committed by complete silence)
- legal, not moral, duty to disclose
- includes a civil duty
