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FLK2 > criminal law > Flashcards

criminal law Flashcards

1
Q

what is factual causation?

A

‘but, for’ test = but for the acts or omissions of D, the relevant consequence wouldn’t have occurred in the way it did

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2
Q

what is legal causation?

A

is the D the operating and substantial cause of the prohibited consequence
(consequence must be caused by D’s culpable act)

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3
Q

what is a novus actus interveniens?

A

subsequent event or act of either V or third party that is an intervening act breaking chain of causation = D is not criminally liable

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4
Q

what are the 5 ways that an intervening act can occur?

A
  • medical negligence
  • acts of third party
  • acts of the victim
  • thin skull rule
  • natural events (acts of god)
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5
Q

what must be proved for act of third party to break chain in causation?

A

action of third party were ‘free, deliberate and informed’

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6
Q

in fright and flight cases - acts of the victim = how do the court’s assess whether the act of the V should break chain in causation?

A

jury would have same knowledge as D had at the time D committed the act = subjective

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7
Q

when a victim commits suicide - does the break the chain in causation - what should the courts ask?

A

whether V’s suicide has been caused by D is a question of fact that juries should apply their common sense to.

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8
Q

what situations is suicide likely to break chain in causation?

A

V nonetheless dies from original wound
act was reasonably foreseeable
D’s unlawful act was significant and operation cause of death

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9
Q

when do natural events (acts of god) break chain of causation?

A

only break chain of causation if they are extraordinary and not reasonably foreseeable

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10
Q

what is the process for establishing criminal liability for omissions?

A
  1. crime capable of being committed by an omission as some offences can only be committed via an act
  2. accused under legal duty to act
  3. accused breach that duty
  4. break caused AR of offence to occur
  5. should offence so require, accused had the required MR
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11
Q

when is a person guilty via an omission - legal duty to act? (6 situations)

A
  1. statutory duty
  2. social relationship (doctor/patient, parent/child, spouse)
  3. voluntary assumption of another
  4. breach of contractual duty - duty owed by D either to party or third party
  5. creation of dangerous situation
  6. public office holders
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12
Q

what is direct intention?

A

aim of purpose of the D’s act

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13
Q

what is indirect/oblique intention? R v Woollin

A

death or serious injury was virtually certain as result of D’s actions (objective); and
D appreciated that (subjective)

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14
Q

what is the test for recklessness?

A

someone takes an unjustifiable risk, aware of the danger that the prohibited harm may occur upon taking that risk.

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15
Q

what is the test for negligence?

A

D’s actions fall below the standard of a reasonable person

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16
Q

when can oblique intention be used - what type of offences?

A

can only be used when intention is the ONLY form of MR for offence eg, murder, causing GBH with intent

(if offence includes intention or recklessness then DONT use oblique intention)

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17
Q

motive vs intention

A

motive can be used as evidence of intention but very clear that intention and motive are not the same

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18
Q

what is recklessness (R v G)?

A

D is reckless when:
- D foresaw a risk of harm and went ahead anyway; and
- in the circumstances of the D, it was unreasonable to take the risk

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19
Q

what is the continuing act theory?

A

a D can be guilty of an offence using continuing act theory if they form the MR for the offence at some point during the AR continuing

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20
Q

what is the one transaction principle?

A

actions of D as a series of acts, making up one transaction. Enough for D to have MR at some point during that transaction

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21
Q

can the one transaction principle be used when there is no prior planning?

A

yes it can as it has been extended

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22
Q

what is coincidence of AR and MR?

A

for criminal liability it is required that the guilty act and guilty mind of offence must occur at the same time.

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23
Q

what are the 4 ways that the court have interpreted and included in the coincidence on AR and MR?

A
  • continuing act theory, - one transaction principle,
  • transferred malice
  • mistake
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24
Q

what is transferred malice?

A

the MR for an intended harm can be transferred to the actual harm that occurs, as long as MR for the offence is the same
(eg, cant throw rock intending to hit people but actually hit glass = therefore, didn’t have the requisite MR for criminal damage)

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25
Q

if a D doesnt know they are breaking the law - can this negate liability?

A

no, it cannot = ignorance of the law is no excuse (even if it were impossible for D to know of the prohibition)

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26
Q

if D makes mistake as to an element of AR does this prevent D from having MR?

A

yes eg, take the wrong umbrellas away from restaurant, mistakenly believing it is their umbrella, then there is no liability for theft because D will not be dishonest.

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27
Q

does mistake need to be reasonable?

A

if AR is intention or recklessness = no need for mistake to be reasonable
BUT, if it is MR negligence then mistake must be reasonable

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28
Q

what is the AR and MR for murder?

A

unlawful killing of a human being under the kings peace with malice aforethought (intention to kill or intention to cause GBH)

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29
Q

is diminished responsibility available defence to charge of attempted murder?

A

no - it is not available

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29
Q

who has the burden of proof for diminished responsibility - voluntary manslaughter?

A

burden falls upon defence to prove on balance of probabilities that D was acting under diminished responsibility

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30
Q

what are the 4 elements that need to be proven for diminished responsibility?

A

D must have an abnormality of mental functioning
- this arises from a recognised medical condition
- has substantially impaired D;s ability to understand nature of D’s conduct, form a rational judgment and/or exercise self-control
- provides an explanation for D;s conduct

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31
Q

does the abnormality of mental functioning that arises from a recognised medical condition need to be diagnosed at the time of the killing?

A

no, it can be diagnosed later as long as that was the recognised medical condition that created the abnormality of mental functioning during the killing
(eg, late diagnosis)

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32
Q

what are the 3 requirements for the loss of control defence (voluntary manslaughter)?

A

1) D must have lost self-control
2) due to a fear and/ or anger qualifying trigger; and
3) normal person might have acted in a similar way to D

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33
Q

who does the burden of proof rest on for loss of control?

A

it rests on the prosecution once the issue has been raised - prosecution need to prove that only one of the components is absent for the defence to fail

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34
Q

what are the qualifying triggers for loss of control (voluntary manslaughter)? (fear and anger trigger)

A

fear: D fears serious violence; and/or
anger trigger: things said and/or done; that constitute circumstances of an extremely grave nature; and that causes D a justifiable sense of being seriously wronged

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35
Q

what are the limitations to the loss of control defence? (there are 4)

A

1) in an act of ‘considered desire for revenge’
2) as an excuse to use violence
3) if the thing said / done constituted sexual infidelity
4) if D is charged with attempted murder

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36
Q

when the jury assess ‘the normal person’ for loss of control - what 2 things should they consider?

A

1) the gravity of the qualifying trigger to a person in the D’s circumstances; then
2) whether as a result of that trigger a normal person might have rented in a same or similar way

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37
Q

when a person is intoxicated how can they use the loss of control defence - how does this alter the qualifying triggers?

A

D’s drug or alcohol addiction can be taken into account when assessing magnitude of qualifying anger trigger if D was taunted about the addiction.

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38
Q

when a person is intoxicated and wanting to rely on loss of control as a defence - how does this alter the normal person test?

A

If D is addicted to drugs or alcohol this will be a characteristic given to the normal person but the normal person will still have normal levels of tolerance and self-restraint and be sober

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39
Q

when can a person use intoxication with a diminished responsibility defence?

A

if D has an abnormality of mental functioning AND is voluntary intoxicated

(also arise from alcohol dependency syndrome)

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39
Q

what is the key difference between murder and involuntary manslaughter?

A

involuntary manslaughter lacks ‘malice aforethought’

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40
Q

what must the prosecution prove for unlawful act manslaughter? (4 elements)

A

1) D intentionally (voluntarily) did the act
2) the act was unlawful
3) the unlawful act was dangerous; and
4) the unlawful act caused the death of V

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41
Q

can you commit unlawful act manslaughter via an omission?

A

no - it can only be committed via an act

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42
Q

the element of ‘D intentionally (voluntarily) did the act’ for unlawful act manslaughter = what do they need to intend?

A

they need to intend the act therefore, dont need to have regard to the consequences that flow from the act

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43
Q

what approach is taken for ‘unlawful act must be dangerous’ unlawful act manslaughter?

A

object test - ask: if 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

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44
Q

if D supplies V with drugs, or assists V, does D cause V’s death under unlawful act manslaughter?

A

no - so long as V is a fully informed and responsible adult who freely and voluntarily self-administers

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45
Q

what type of harm falls under unlawful act manslaughter?

A

physical harm, not emotional harm but it does include stock that produces physical effects

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46
Q

what are the requirements for gross negligence manslaughter (Adomako)?

A

1) the existence of a duty of care (positive act or omission)
2) breach of that duty
3) breach causes death (factual and legal causation)
4) there was a risk of death (an obvious and serious risk not merely of injury or even serious injury, but of death)
5) the breach of duty was so bad as to amount to ‘gross negligence’

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47
Q

can a person commit indirect battery?

A

yes - the force is used through an intermediary medium (eg, water) to apply force, resulting in harm

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48
Q

what does D’s threat cause man to apprehend violence “immediately”?

A

immediate doesnt mean instantaneous but at some time not excluding the immediate future.

49
Q

what does it mean ‘part of the building’ for burglary?

A

includes any distinct, enclosed area within a larger building where access is restricted. entry into such a restricted area without permission constitutes as part of a building

50
Q

if a person enters a building with an intent to steal but doesnt - can they be found guilty of burglary?

A

yes because conditional intent to steal is sufficient - as intent to commit the ulterior offence. had initial intent when entered the building

51
Q

when does a person have a lawful excuse for criminal damage?

A

When honestly believe that the owner would have consented to the damage in the circumstances.
also: if honestly believe his property was in immediate need of protection and the damage was reasonable

52
Q

does the damage need to be permanent for criminal damage?

A

no - it is relevant if time, effort and money have to be expended to restore the property

53
Q

what does destruction mean (criminal damage)?

A

destruction means property ceases to exist in its original form or purpose.

54
Q

can you steal a wild animal under theft?

A

no because wild animal is not property unless they have been reduced into possession by someone else.

55
Q

what is the mens rea for criminal damage?

A

intention or recklessness with respect to the damage and the fact that the property belongs to another.

56
Q

does a victim need to be harmed for robbery?

A

no - instead the victim needs to fear immediate force might be used against them = requirement of ‘putting a person in fear’ - dont necessarily need to make the victim fear but apprehension of force is sufficient

57
Q

what is the mens rea for aggravated arson?

A

intention or recklessness as to the endangerment of life by the destruction or damage of property by fire.

58
Q

what is the mens rea for aggravated criminal damage?

A

defendant can be convicted for aggravated criminal damage by demonstrating that there was damage and that they were reckless as to the endangerment of life due to this damage

59
Q

if you catch a wild animal with a trap - have you committed theft?

A

yes because although wild animals are not normally able to be stolen by setting up a trap this has made them ‘reduced into possession’ therefore, capable of being stolen under the theft act

60
Q

if you pick wild berries and flowers - can you commit theft?

A

person is not guilty of theft if they pick wild mushrooms, flowers, fruits, or foliage unless they do so for reward, sale, or commercial purposes or they uproot plants.

61
Q

what is the actus reus and mens rea of basic criminal damage / fire?

A

ACTUS REUS:
- destroy or damage (by fire)
- property
- belonging to another
- without lawful excuse

MENS REA:
intention or recklessness as to the destruction or damage of property belonging to another (by fire)

62
Q

what happens if you damage property causing it temporary impairment in the value or usefulness = can you be guilty of criminal damage?

A

yes because the impairment can be either permanent or temporary as to the value or usefulness.

63
Q

if a person has mistaken belief (or belief via intoxication) that owner would consent to damage = does this cover under lawful excuse?

A

yes, this is enough for lawful excuse

64
Q

what are the 4 requirements for lawful excuse when protecting property? (s5(2))

A

1) D must act to protect property
2) D must honestly believe that the property was in immediate need of protection (subjective)
3) D must honestly believe that the means of protection adopted are reasonable
4) the damage caused by D must be objectively capable of protecting the property

65
Q

what must danger to life arise by? (aggravated criminal damage)

A

damage to life must arise from the damaged property, not the means of damaging it. if the damage is caused by fire, the risk to life will always be from the damaged property

66
Q

what is the mens rea for aggravated criminal damage/arson?

A

intention or recklessness as to the destruction or damage of property (by fire)
intention or recklessness as to the endangerment of life by the damage of destruction (by fire)

67
Q

can you appropriate property (theft) with the consent of the owner?

A

yes you can appropriate even if you have the consent of the owner

68
Q

what is the actus reus and mens rea of robbery?

A

theft (appropriate property belonging to another with intention to permanently deprive)
+
ACTUS REUS:
force or threat of force = puts any person in bear of being then and there subjected to force
on any person
use or threat of force immediately before or at the time of stealing

MENS REA:
intention to use force in order to steal (rather than steal as an afterthought to the force)

69
Q

what is s9(1)(a) burglary?

A

committed at point of entry into building as trespasser and D must know or be reckless as to entry as trespasser and inter to commit: theft, GBH or criminal damage

70
Q

what is s9(1)(b) burglary?

A

committed when, having entered the building as a trespasser knowing or being reckless as to entry as a trespasser, the D goes on to commit: theft or attempted theft; or GBH or attempted GBH

71
Q

what is the added element needed to make burglary - aggravated burglary?

A

D must have with them, at the time of the burglary:
- firearm or imitation of firearm
- weapon of offence meaning ‘any article made or adapted for use for causing injury to or incapacitating a person, or intended by the person having it with them for such use’ or
- explosives

72
Q

when must a D have the weapon/article on them for s9(1)(a) burglary and s9(1)(B)?

A

s9(1)(a): D must have article with them when entering the building
s9(1)(b): D must have article with them when committing theft (or attempt) or GBH (or attempt)

73
Q

what are the actus reus and mens rea of fraud by false representation?

A

Actus reus- false representation
* Express or implied representation
* Representation as to fact, law or state of mind
* Representation must be untrue or misleading

Mens rea-
* Dishonesty- use the test from Ivey
* Mens rea for the false statement
* Intention to make a gain or cause a loss-

74
Q

what is the actus reus and mens rea for fraud by failure to disclose?

A

ACTUS REUS:
- existence of legal duty to disclose (eg, statute, good faith, term in contact ect)
failure to disclose info to another person = matter of fact

MENS REA:
dishonesty = Ivey test
(1) what was the D’s knowledge and belief as to the facts?
(2) given that knowledge and the beliefs, was the D honest by the standards of ordinary decent people?
intention to make a gain or cause a loss

75
Q

what is the actus reus and mens rea for fraud by abuse of position?

A

ACTUS REUS:
occupy a position (which require you to look after V’s financial wellbeing)
abuse of that position

MENS REA:
- dishonesty test = Ivey
intention to make a gain or cause a loss

76
Q

what are the 5 different ways that a person can be liable as an accessory to a crime?

A

1) to aid
2) to abet
3) to counsel
4) to procure
5) to be a party to a joint enterprise

(assisting or encouraging the commission of the principal’s offence)

77
Q

how must a person withdraw if it is effective to no longer be an accessory of a crime?

A

something must be done and communicated to the principal in the case of pre-planned violence

withdrawal must take place, before the act of assistance

78
Q

can a secondary party be convicted but the principal is acquitted?

A

yes - this can happen and could occur when principal has been acquitted due to insufficient evidence or principal can not be found

79
Q

is it an offence to attempt to aid, abet, counsel or procure an offence?

A

no it is not

80
Q

is it an offence to aid, abet, counsel or procure an attempt to commit an offence?

A

yes it is

81
Q

if a person is party to a violent attack on another without an intention to assist in causing death or really serious harm but violence escalates and V dies = what can the accessory be charged with?

A

will be guilty as a principal for the crime of manslaughter NOT an accessory to murder

82
Q

what mens rea is required to be guilty of an accessory of a crime?

A

1) an intention to assist or encourage P’s conduct

2) if the crime requires a MR, an intention that P will do the AR and MR

3) knowledge of existing facts or circumstances necessary for the offence to be criminal

83
Q

what is abetting and when does it occur to be guilty of an accessory of a crime?

A

abetting involves encouraging principal at time the offence is being committed

84
Q

if a person provides encouragement during commission of a crime to no one in particular eg, write on Facebook ‘dont hold back! show your strength when protest is occurring = have they become a party to an offence?

A

yes - encouragement provided during the commission of the crime, even if not physical or directed at an individual specifically, can constitute abetment if it effectively incites the principal offender’s actions.

85
Q

what is the actus reus of an attempt?

A

an act which is more than merely preparatory

86
Q

what is the mens rea of an attempt?

A

intention to commit the full offence eg, attempted murder - D must have intention to kill

87
Q

can you attempt an offence which is impossible through inadequacy eg, try to poison someone with substance that is harmless?

A

yes - you can commit an offence which is impossible through inadequacy = D who sets out to kill should not get off simply because they choose a method which is doomed to fail

88
Q

can you commit an attempt of an offence which is impossible in fact eg, if stab someone who is already dead can they be liable for attempted murder?

A

yes = through impossibility of fact

89
Q

can you commit an attempt of crime that is non-existence eg, D believes what they are doing is an offence but it is in fact lawful?

A

no you cannot turn a lawful act into an unlawful act = you cannot attempt something that is physically not a crime

90
Q

is conditional intent sufficient for attempting an offence?

A

yes it is sufficient eg, D intends to commit an offence only if certain conditions are met is sufficient for an attempt

91
Q

who has the burden of proof for self-defence and what is the standard?

A

burden of proof rests on the prosecution who must disprove beyond reasonable doubt

92
Q

what is the standard of the burden of proof for diminished responsibility? who does the burden rest on?

A

it is on the defence and it is on the balance of probabilities

93
Q

if a person knocks over a candle whilst in a state of panic - does this break the chain of causation?

A

no because an intervening act must be free, deliberate and informed. a state of panic doesnt meet this criteria - it was a reaction to the initial harm caused, making her liable for the subsequent property damage

94
Q

what must ‘force’ be for self-defence in non-household case?

A

force must be proportionate to the threat faced - eg, striking a mugger repeatedly causing significant injury may be deemed as excessive and thus disproportionate in relation to the threat. especially If still hitting them after the mugger moves away

95
Q

what type of touch is required for a battery?

A

any type of unwanted touch, however slight, can constitute a battery. battery is defined as actual intentional application of unlawful force to another person without consent.

96
Q

what is the question at issue that should be considered when deciding if the complete defence of intoxication is present?

A

question at issue is not whether D was incapable of forming the MR, but whether, even if still capable, they did form it
therefore, if prosecution can establish D formed MR, despite their intoxication, then intoxication will not assist D. if form MR in intoxicated state then no defence

97
Q

what 3 things should you ask yourself to decide whether intoxication will negate MR of alleged offence?

A
  • is D involuntarily intoxicated?
  • is intoxicated caused by non-dangerous drugs?
  • is the crime a specific intent crime?
98
Q

if D is involuntarily intoxicated can they use the defence of intoxication for any offence?

A

potentially both specific and basic intent crimes - could arise where D forced to consume intoxicating substance or was deceived into doing so

99
Q

if D is aware they are drinking alcohol but mistaken as to strength - is this involuntary intoxication?

A

no this is not = this would be deemed voluntary intoxication

100
Q

what type of offence can voluntary intoxication negate the MR required?

A

specific intent only as not a defence for basic intent (as intoxication is reckless)

101
Q

what is a basic intent offence and what are examples of it?

A

a crime is basic intent where D could be convicted on the basis of recklessness as to the consequences, or where no foresight as to the consequences is required.
eg,
unlawful act manslaughter, gross negligence manslaughter, malicious wounding / inflicting GBH s20, ABH s47, battery, assault, basic criminal damage and aggravated criminal damage, burglary s9(1)(b) when committed GBH

102
Q

what is a specific intent offence and what are examples of it?

A

crimes of specific intent were those where intention was the only form of MR available eg, where recklessness was insufficient MR for the offence to be made out
eg, murder, wounding or GBH with intent (s18), theft, robbery, all burglary under s9(1)(a), burglary s9(1)(b) by stealing/attempting to steal or attempting to cause GBH/attempts

103
Q

what is a dangerous drug?

A

where it is common knowledge that a drug is liable to cause the taker to become aggressive, or to do dangerous or unpredictable things, that drug is to be classed with alcohol (illegal drugs fall within this category)

104
Q

what is a non-dangerous drug?

A

where there is no common knowledge that the drug is liable to cause taker to become aggressive or do dangerous or unpredictable things [eg, valium taken for calming nerves - no evidence that D knew it would make him aggressive incapable of appreciating risks to others susceptible to other side effects)

105
Q

if D makes drunken mistake as to need to use self-defence = can they rely on self-defence?

A

no, cannot rely on that mistake

106
Q

if there is a statutory defence that allows for honest belief - can D use it if their belief is due to their voluntary intoxication?

A

yes, can use it as a defence
eg, D believes owner would have consented to the damage
or
believes V would have consented to appropriation of property therefore, not dishonest

107
Q

involuntary intoxication may be raised successfully as a defence as to which crimes?

A

crimes of both specific and basic intent involving dangerous or non-dangerous substances

108
Q

What is the question a court will ask regarding a defendant’s mens rea if they are voluntarily intoxicated by dangerous drugs/ alcohol and commit a basic intent offence?

A

would the D have formed the MR if sober?

109
Q

can you use intoxication for defence of diminished responsibility and loss of control?

A

yes you can - intoxication is no bar to a plea of loss of control or diminished responsibility

110
Q

what is the general rule on what offences a person can consent to?

A

general rule is that you can only consent to assault and battery
(been extended to it is available where ABH or worse is caused provided D only intended to commit a battery with the consent of the V and didn’t see the risk of inflicting ABH or above)

111
Q

can you consent to medical treatment even if there is a high risk of death?

A

yes can consent medical treatment

112
Q

can you consent to injury in sport?

A

yes, but can only consent to force of a kind which could reasonably be expected to happen during a game

113
Q

what can a person (if at all) consent to in terms of sexual gratification?

A

person cannot consent to infliction of harm that results in ABH or more for sexual gratification purposes. only exception is that a person may consent to risk of acquiring a STI BUT CANNOT consent to deliberate HIV infection

114
Q

when is consent available?

A

if V consented OR D honestly believed that V was consenting

115
Q

what is the 2 part trigger and response test in self-defence?

A

entitled to rely on defence if:
- D honestly believed that the use of force was necessary; and
- the level of force D used in response was objectively reasonable in the circumstances as the D believed them to be

116
Q

if a D fails in part for their self-defence defence - what is the legal effect of this?

A

their defence fails in full as it is a full defence and therefore, cannot apply partially

117
Q

what is the difference between the standard of force in non-householder cases and householder cases for self-defence?

A

non-householder: force will not be reasonable if it was disproportionate
householder: force will not be reasonable if it was grossly disproportionate

118
Q

what is a householder case for self-defence?

A

where D acts to protect thelsmevoes or another.
uses force whilst in or partly in a building (dwelling - includes vehicles, vessels and buildings that are dwellings and places of work if connected by internal access route)
is not a trespasser at the time the force is used
believed the V to be in, or entering the building as a trespasser

119
Q

what are the 2 questions the jury must ask when dealing with self-defence for householder cases?

A

1) was the force grossly disproportionate in the circumstances as D believed them to be? (if yes, then no defence)
2) if no, was the level of force reasonable? (jury should take into account level of force and if D believed in moment that they were using reasonable force eg, shock of coming upon an intruder, time of day, vulnerability of occupants ect

120
Q

when can you use pre-emptive action for self defence?

A

if there is an imminent and immediate threat pre-emptive action can be used.
therefore, if use force/action prematurely then not allowed as actual threat hasn’t materialised meaning force isn’t justified

121
Q

what level of force is used in self-defence in non-householder cases?

A

must be reasonable and proportionate to the threat

122
Q

can voluntary intoxication negate MR for specific intent crimes like theft?

A

yes, it can where the D’s level of intoxication prevents him from forming the necessary intent at the time of the crime. Prosecution must prove beyond reasonable doubt that the D had the intent despite the intoxication

FLK2 (9 decks)

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