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SQE1 FLK 2 > Criminal Law > Flashcards

Criminal Law Flashcards

1
Q

What is the actus reus for murder?

A

Unlawful

Killing

Human being

Kings peace

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2
Q

What is the Mens Rea for murder?

A

Malice aforethought

Intention to kill or intention to cause grievous bodily harm

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3
Q

What is factual causation for result crimes?

A

But for

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4
Q

What is legal causation for result crimes?

A

Substantial cause of prohibited harm, more than minimal

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5
Q

What does grevious bodily harm mean?

A

Serious harm

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6
Q

How is intention to be defined?

A

The jury decides

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7
Q

When can the jury find oblique intent for murder?

A

Death or serious injury was a virtual certainty

Defendant knew that

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8
Q

Is oblique intention intention?

A

No, it is evidence of intention

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9
Q

Is motive intention?

A

No, it is evidence of intention

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10
Q

Can you be reckless for murder?

A

No

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11
Q

What does special defence mean?

A

The defence only applies to that crime

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12
Q

What is diminished responsibility a defence for?

A

Murder

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13
Q

What is the effect of diminished responsibility on the murder charge?

A

Result in voluntary manslaughter

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14
Q

What is the mandatory length of a murder sentence?

A

Life

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15
Q

Who has the burden to prove diminished responsibility?

A

The defendant

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16
Q

For diminished responsibility to apply, what is the list of 3 things whereby 1 of them must have been impaired?

A

Conduct

Rational judgement

Exercise self-control

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17
Q

How is abnormality of mental functioning defined for diminished responsibility?

A

State of mind so different from that of ordinary human beings that the reasonable man would term it abnormal

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18
Q

What 3 characteristics must the abnormality of mental functioning have for diminished responsibility to apply?

A

Arise from medical condition

Have substantially impaired (more than trivial) (conduct, rational judgement, self-control)

Provide an explanation for Ds conduct

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19
Q

Is diminished responsibility available for attempted murder?

A

No

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20
Q

What are the 2 special defences for murder?

A

Diminished responsibility

Loss of control

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21
Q

What are the 3 elements to prove for loss of control?

A

D must have lost self-control

Due to fear and/or anger qualifying trigger

A normal person might have acted in a similar way to D

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22
Q

Who has the burden of proof for loss of control?

A

Prosecution needs to prove at least one of the components is absent

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23
Q

Who decides whether the defendant lost control or just lost their temper?

A

Jury

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24
Q

What are the 2 qualifying triggers for loss of control?

A

Fear of serious violence

Anger

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25
Q

What situation do fear trigger loss of control cases usually cover?

A

Self-defence when the level of force was unreasonable

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26
Q

What are the 3 parts to the anger trigger for loss of control?

A

Things said/done

Extremely grave

D had justifiable sense of being seriously wronged

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27
Q

What are the 2 limitations to the anger trigger?

A

D incited it as an excuse to use violence

It was sexual infidelity

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28
Q

Is justifiable sense of being wronged an objective or subjective test?

A

Objective, with cultural context

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29
Q

What is the normal person test for loss of control?

A

Person of D’s sex and age with a normal degree of tolerance and self-restraint and in the circumstances of D might have reacted in the same or a similar way to D

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30
Q

What are the 2 steps for the jury to assess when looking at whether the normal person would have acted similarly for loss of control?

A

Gravity of the qualifying trigger to a person in D’s circumstances

Whether the result of that trigger a normal person might have done what the defendant did or smth similar

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31
Q

When looking at the normal person test for loss of control, can the jury take into account personal characteristics of the defendant?

A

No

E.G., PTSD, personality disorder, intoxication, bad temper

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32
Q

When can loss of control not be used as a defence?

A

Considered desire for revenge

Excuse to use violence

Was sexual infidelity

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33
Q

What gives evidence of considered desire for revenge?

A

Evidence of planning

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34
Q

Why will an excuse to use violence not allow the loss of control defence?

A

Because D cannot create the qualifying trigger as an excuse to use violence

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35
Q

Regarding loss of control, what are the considerations if D started it?

A

D must have had the intent from the outset to provoke the act that led to the killing.. so then the defence will not hold

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36
Q

When will loss of control still apply in a sexual infidelity case?

A

If the infidelity was part of a wider picture of

fear of losing children
losing home

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37
Q

Is loss of control a defence to attempted murder?

A

Probably not

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38
Q

How does intoxication alter the mens rea for murder?

A

Even though intoxicated, did D form the mens rea of intention to kill or intention to cause grievous bodily harm? Drunken intent is still intent

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39
Q

When can D’s drugs or alcohol be taken into account when considering if they had a qualifying trigger for loss of control?

A

If D is taunted about addiction

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40
Q

What is the normal person test for loss of control of an addict?

A

An alcoholic/drug addict who is a normal person with normal levels of tolerance and self-restraint

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41
Q

Can voluntary intoxication be relied on for a defence of diminished responsibility?

A

No

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42
Q

When can there be a defence of diminished responsibility for voluntary intoxication?

A

If they also have:

recognised abnormality of mental functioning

AMF substantially impaired D’s ability to do one of the things in s 2(1A) homicide act (understand conduct, rational judgement, exercise self control)

AMF explains D’s conduct, even if it is not the only cause – alcohol can be another reason

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43
Q

What are the 3 key points regarding whether intoxicated defendants can rely on loss of control?

A

Can still rely on defence if drunk

Must show that drunkenness has no relationship to the murder (e.g., a sober person would have done it to)

If there is a relationship between things said or done and the trigger (e.g., severely taunted about drunkenness), then this can be considered as to the gravity of the qualifying trigger

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44
Q

How is intoxication considered alongside an abnormality of mental functioning?

A

If the AMF alone would have been enough for diminished responsibility, then it doesn’t matter if intoxication was also a contributing factor

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45
Q

What is the approach if D’s AMF arises from alcoholism?

A

This AMF must be present at the time of the killing (severity/extent of ADS taken into account)

AMF substantially impaired D’s ability to do one of the things in s2(1A) (understand conduct, rational judgement, exercise self control)

AMF must provide an explanation for D’s conduct, even if it is not the only cause

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46
Q

What must the prosecution prove for unlawful act manslaughter?

A

Defendant intentionally did an act resulting in person dead

Act was intrinsically unlawful, not an omission

Unlawful act was dangerous (as all sober and reasonable people would recognise the risk of SOME harm)

Unlawful act caused the death of the victim

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47
Q

Does the seriousness of the offence matter for unlawful act manslaughter?

A

No

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48
Q

What does it mean for unlawful act manslaughter that the act must have been intrinsically unlawful?

A

It can’t be a lawful act, that becomes unlawful only because of the negligent or reckless manner which it was performed

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49
Q

What is the interaction between unlawful act manslaughter when D personally administers the drug to the deceased?

A

D’s consent is likely no defence

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50
Q

What is the interaction between unlawful act manslaughter when D aided the person to administer the noxious substance, e.g., filled syringe?

A

Will not be liable

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51
Q

What case lays down the basic requirements for gross negligence manslaughter?

A

Adoamako

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52
Q

What are the basic requirements in Adomako to establish gross negligence manslaughter?

A

DOC exists

Breach of duty

Breach causes death

There was an obvious and serious risk of DEATH

Breach was so bad as to amount to gross negligence

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53
Q

When will there be a duty of care for gross negligence manslaughter?

A

Same as in tort

Reasonable foreseeability
Avoid injury by positive act to neighbours
Liability for omissions where specific duty (contract, statute, special relationship, assumption, create danger)

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54
Q

Will courts imply a DOC where one wouldn’t be in tort?

A

Yes, judge will decide on the facts of each case

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55
Q

For gross negligence manslaughter, will the illegal act defence hold?

A

No

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56
Q

How much risk of harm must there be in a gross negligence manslaughter case?

A

Obvious and serious risk not merely of injury or even serious injury but of death

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57
Q

Will the possibility that a medical assessment could reveal something life-threatening constitute an obvious and immediate risk of death for gross negligence manslaughter?

A

No

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58
Q

What 3 fact patterns suggest criminal as opposed to civil negligence?

A
  1. A series of of many small negligent acts
  2. A single absolutely devastating act
  3. Defendant had gross negligence, even if others are also responsible because they had clear personal responsibility and ability to discharge it
  4. D had knowledge/experience that should have alerted them to the danger
  5. Couldn’t care less attitude to high risk of death
  6. Saw serious risk of death
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59
Q

What fact pattern suggests that there wasn’t gross negligence?

A
  1. The defendants mistakes are in part or whole brought about by the mistakes of others
  2. Genuine belief that there was no risk
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60
Q

Actus and mens for assault?

A

Actus: cause victim to apprehend immediate and unlawful personal violence

Mens: intention or recklessness as to causing the victim to apprehend immediate and unlawful personal violence

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61
Q

Actus and mens for BATTERY?

A

Applying unlawful force to another

Intention or recklessness as to applying unlawful force to another

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62
Q

What is the hierarchy of non-fatal offences from most to least severe?

A

Wounding/grievous bodily harm with intent (s18)

Wounding or inflicting GBH (s20)

Battery

Assault

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63
Q

What are the valid defences for assault?

A

Self-defence

Intoxication

Consent

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64
Q

How can words create or negate apprehension of violence for assault:

A

Silence/words is enough to be intimidating

Comforting words can negate an assault

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65
Q

What does ‘immediate’ mean for assault?

A

Some time not excluding the immediate future

Uncertainty as to timing can imply immediate apprehension of assault at ‘any time’

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66
Q

What is ‘personal violence’ for assault?

A

Any unwanted touch

even a small poke

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67
Q

What does it mean that assault is a basic intent crime?

A

Can be committed intentionally or recklessly

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68
Q

When will a D be reckless as to an assault?

A

Saw a risk to cause victim to apprehend immediate and unlawful personal violence

In circumstances known to D, it was unreasonable to take that risk

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69
Q

What is the maximum penalty for battery?

A

6mo prison

5k fine

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70
Q

Actus/mens of battery

A

actus: Application of unlawful force

mens: Intentionally or recklessly applied

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71
Q

What are the valid self defences for battery?

A

self-defence

intoxication

consent

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72
Q

In what 3 ways can battery be inflicted/applied?

A

Directly

indirectly

by omission

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73
Q

Will touching somebodys clothes be enough for a battery?

A

yes

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74
Q

What were the 2 examples of indirect battery?

A

Turning off lights in a theatre and closing the doors to make panic

Digging a pit for the V to fall into

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75
Q

Can battery be committed recklessly?

A

Yes

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76
Q

Which is worse, s 20 OAPA or s 18?

A

s 18

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77
Q

What is the max prison for ABH?

A

No more than 5y

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78
Q

What is ABH?

A

s 47

Assault occasioning actual bodily harm

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79
Q

Actus/mens for ABH?

A

ACTUS:
Assault or battery

Occasioning (normal rules of causation)

Actual bodily harm

MENS:
Intent or recklessness to:
cause victim to apprehend immediate and unlawful violence OR
applying unlawful force upon another

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80
Q

Can ABH be committed by omission?

A

Yes

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81
Q

What is the leading case for ABH/battery omissions?

A

DPP v Santana-Bermudez

Not saying he had a sharp needle on him when being searched after having been directly asked

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82
Q

What type of injury constitutes ABH?

A

Interfering with health or comfort of the victim

More than transient AND trifling (can be transient)

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83
Q

What fact patterns were given to suggest ABH?

A
  • momentary loss of consciousness
  • cutting off a pony tail
  • diagnosed psychiatric condition
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84
Q

Is there a special mens for ABH?

A

No, it is the same as assault or battery

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85
Q

Actus/mens for s 20?

A

Wound or infliction of grievous bodily harm

Intend or reckless as to SOME harm

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86
Q

What is the name of a s20 offence?

A

Malicious wounding or inflicting grievous bodily harm

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87
Q

What test determines whether something is a wound?

A

Broken skin

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88
Q

What does infliction mean for s20?

A

Cause, same as causation

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89
Q

What degree of harm is GBH? How serious is the harm caused?

A

serious harm

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90
Q

What should juries take into account when assessing the seriousness of harm?

A

Effect of injuries on V

V age/health

Totality of injuries

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91
Q

What is the threshold of harm for s20 in terms of recklessness and intention (not end result)

A

SOME HARM

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92
Q

What is a s18 offence called?

A

Wounding or causing grievous bodily harm with intent

93
Q

Actus/mens for s 18?

A

Wound or
Cause GBH

With intention to commit GBH

94
Q

Do the definitions of wound, inflict, and GBH change between s20 and s18?

A

No

95
Q

What degree of harm must D intend under s18?

A

Serious harm amounting to GBH

96
Q

Under s18, if it is a wound, is the mens rea intent to wound?

A

No, still serious harm amounting to GBH

97
Q

Can juries find oblique intent for s18?

A

Yes

98
Q

When can juries find oblique intention for s18?

A

Serious injury was a virtual certainty

D appreciated that

99
Q

What are examples of GBH injuries?

A

Permanent loss of sensory function

Permanent disability

Broken bones

Fractured skill

Substantial bloodloss

100
Q

What are the examples of ABH injuries?

A

Temporary sensory loss

Temporary loss of consciousness

Extensive bruising

Cutting off someones hair without consent

Minor fractures

Psychiatric injury

101
Q

Can you be reckless as to a s18 offence?

A

No

102
Q

Actus/mens for basic criminal damage/arson

A

Actus:
destroy or damage (by fire)
property
belonging to another
without lawful excuse

Mens:
intention or recklessness as to the destruction or damage of property belonging to another

103
Q

Does basic criminal damage have to be permanent?

A

No, only:

that time, effort and money is spent in restoring the property

permanent or temporary impairment of usefulness

104
Q

What factors will the court look at when determining whether the property is damaged?

A

Casexcase

Nature of article

Mode in which it was affected

105
Q

Does basic criminal damage have to render an item useless?

A

No

106
Q

What is the max sentence for basic criminal damage?

A

10 y

107
Q

What case law examples were given for what constitutes damage?

A

Removable graffiti

Mud on walls

Stuffing blanket into toilet and flooding a prison cell

108
Q

What example was given of what was not basic criminal damage?

A

Spitting on a raincoat

109
Q

What property is excluded from basic criminal damage?

A

Basically any vegetation or fungus growing wild including fruit

110
Q

What 3 conditions define property?

A
  1. Custody and control of it
  2. Having proprietary rights
  3. Having a charge on it
111
Q

Can you be reckless as to basic criminal damage?

A

Yes

112
Q

What must be proven to show recklessness as to basic criminal damage?

A

At time of act, accused was subjectively aware of the risk

Was unreasonable to take that risk

113
Q

Is information property for basic criminal damage?

A

No

114
Q

What defences are available for basic criminal damage?

A

All general defences

Lawful excuses

115
Q

What are the 2 lawful excuse defences?

A

Defendant believes owner would have consented

Defendant acts to protect their or another’s property

116
Q

Can lawful excuse defence operate for a belief that arose due to drunkenness?

A

Yes

117
Q

Does motive impact lawful excuse of consent to basic criminal damage?

A

No, not even for fraud

118
Q

Can God provide consent to do something?

A

No

119
Q

What are the defining characteristics of the term appropriation for the purposes of theft?

A

Only one right needs to be assumed

You can appropriate with consent of the owner

You can steal a valid gift

If the D does not initially have the mens rea, there could be a later appropriation

An innocent purchaser is not guilty of theft

120
Q

What property can’t be stolen/doesn’t meet the definition of property?

A

Things growing wild

Wild creatures

Electricity

Confidential info

Unclaimed corpses

Services e.g., train journey

Cheques on accounts over the agreed overdraft (cause bank doesn’t have to honour the cheque)

121
Q

Actus/mens for theft?

A

ACTUS
Appropriate
Property
Belonging to another

MENS
Dishonestly
With intention to permanently deprive

122
Q

What is the definition of appropriation for theft?

A

Any assumption by a person of the rights of an owner

123
Q

What case exemplified why consent can still be appropriation?

A

Getting consent from manager to pay with cheques that the manager didn’t know were stolen

124
Q

What are the key principles for when consent of the owner won’t hold for theft?

A

Consent obtained by false representation

With the actus/mens of theft

MINUS the adverse interference with the owners rights

125
Q

How can gifts amount to theft?

A

Manipulating a vulnerable person to give you stuff

126
Q

Does the innocent purchaser exemption apply to people who later find out that the seller had no title to the property and they still decided to keep it?

A

Yes

127
Q

Land cannot generally be stolen, what are the exceptions?

A

When has authorised powers in relation to land, and exceeds their authorisation

When is a trespasser or guest appropriates or severs things from land (incl. plants)

Tenant removes fixtures or structures

128
Q

When can picking wild things make you guilty of theft?

A

If picked for
- Reward
- Sale
- other commercial purpose

Uproots or cuts part of wild plant

Picks cultivated plants

129
Q

Define belonging to another?

A

Belongs to any person having possession or control of it or having in it any proprietary right or interest

130
Q

When will property cease to belong to another after abandonment?

A

Rarely

You own garbage outside your house, lost golf balls, and property you long stopped looking for

131
Q

What is the relationship between land ownership and belonging to another?

A

Property belongs to those with possession and control so if you have things on your land then you own it

132
Q

What if you find lost property on somebody elses land? When is it yours?

A

Can be yours unless the company puts signs up showing that they intend to exercise control over things in the building

133
Q

How can you ‘steal your own property’

A

If its on a mechanics lien, for example

Temporarily it is in possession and control of another

134
Q

What is s 5(3) of the theft act?

A

If you give property to somebody under an obligation for them to deal with it in a particular way, the property belongs to the original person who handed it over

135
Q

Who is the legal owner of property acquired by mistake?

A

Technically, the person who has the property

It just also belongs to the person entitled to the restoration

136
Q

If legal title to property is obtained by mistake, is an equitable interest created?

A

Yes

137
Q

What are the exceptions to dishonesty for theft?

A

Genuine belief that:
- Has right in law to deprive the other
- D would have the others consent if the other person knew
- the person to whom the property belongs cannot be discovered by taking reasonable steps

138
Q

When is the test for dishonesty?

A

Ivey v Genting Casinos

What was the defendants knowledge and belief as to the facts

Given that knowledge and those beliefs, was the defendant dishonest by the standards of ordinary decent people

139
Q

For the exception to dishonest that the person to whom the property belongs cannot be discovered, what is required of D to rely on this?

A

Only that they genuinely believed it

They don’t actually have to take any steps

Doesn’t have to be reasonable

140
Q

Can you be guilty of appropriating property you are willing to pay for? Why/why not?

A

Yes, e.g., if you take property that the owner didn’t wish to sell

141
Q

What time considerations are there to establish dishonesty?

A

The dishonest intent must be formed when the goods belong to another

142
Q

When does ownership of food pass?

A

When eaten

When ordered/cooked

143
Q

When does ownership of petrol pass?

A

When put in tank

144
Q

What meaning is applied to intention to permanently deprive?

A

Ordinary everyday

145
Q

Is intending to return notes and coins of equivalent value good enough to avoid intention to permanently deprive?

A

No

146
Q

Define intention to permanently deprive

A

An intention to treat the thing as their own to dispose of regardless of others rights

147
Q

What 5 criteria/ways of treating property could amount to intention to permanently deprive?

A

Dispose of it

Treat in manner risking loss

More than ‘dealing with it’

Borrowing/lending in circumstances which make it equivalent to taking/disposal

Taking property on condition to return when you might not be able to fulfil your condition and you know it

148
Q

When will there NOT be intention to permanently deprive in a ransom case?

A

If the items return can be readily fulfilled and may be fulfilled in the near future

149
Q

Actus/mens for robbery?

A

Actus: same as theft
- Force/threat of force/seeking to put in fear of force
- On any person
- Immediately before or at the time of stealing

MENS
Same as theft
- Intention to use force in order to steal (rather than steal as an afterthought to force)

150
Q

Does force for robbery require violence?

A

No

151
Q

Is it a robbery if you threaten to a cashier, to hurt the customer behind you unless they give you money?

A

No, is blackmail

152
Q

When can force be applied to property for a robbery?

A

If force to property causes force to the person

153
Q

What are the 2 burglary offences?

A

9 1 a

9 1 b

154
Q

What is a 91A offence?

A

91A:
- at entrance
- entry with intention as trespasser (or reckless)
- enters intending to commit theft, GBH or criminal damage

155
Q

What is a 91B offence?

A
  • having already entered as a trespasser
  • defendant successfully commits theft/attempted theft, GBH or attempted GBH
156
Q

What is the punishment for burglary?

A

If part of building was a dwelling: 14 years

All other: 10y

157
Q

When is the burglary officially committed under 91A?

A

At the point of entry

158
Q

At what point is a 91B offence officially committed?

A

When there is the attempted theft, theft, or infliction of GBH

159
Q

Is there any difference in sentencing between 91A and 91B?

A

No

160
Q

When is a person guilty of burglary?

A

When they have with them a:
firearm
imitation firearm
weapon of offence
explosive

161
Q

What is the definition of firearm?

A

Anything that has the appearance of a firearm

Does not need to be dischargeable

162
Q

What is a weapon of offence?

A

Any article made or adapted for use to cause injury or incapacitate somebody or is intended for that purpose

163
Q

What is the definition of explosive?

A

Any article manufactured for the purpose of producing a practical effect by explosion or intended by the person having it with him for that purpose

164
Q

What is the max sentence for aggravated burglary?

A

Life

165
Q

Does the weapon have to have been with you for the intended use of the burglary?

A

No.. e.g., running away, or for self-defence still counts

166
Q

What time requirement applies to aggravated burglary? When do they need to have the article on their person?

A

At the time they technically commit the offence (e.g., on partial entry or on the stealing)

167
Q

If you have the weapon with you but don’t use it is it still aggravated burglary?

A

Yes

168
Q

Do explosives have to be weapons of offence if you have them on your person and don’t use them to count as aggravated burglary?

A

No

169
Q

Actus/mens of fraud by false representation

A

Express/implied representation
As to fact, law or state of mind
That is untrue or misleading

Mens rea
Dishonesty –Ivey
Mens rea for false statement
Intention to make a gain or cause a loss

170
Q

Is fraud a conduct or result crime?

A

Conduct

171
Q

Actus/mens for fraud generally

A

Dishonestly makes false rep

Intending to make a gain for self or another

Or cause a loss or expose another to a risk of a loss

172
Q

If there is an imbalance of knowledge, and D expresses a belief can that be fraud?

A

Yes, if he implies it is founded in facts

173
Q

Who determines whether a fraudulent representation was untrue?

A

Jury

174
Q

In what 2 circumstances can overcharging be

A

Circumstances of mutual trust

Trusted friends

175
Q

Could a long standing professional relationship amount to a circumstances of mutual trust for the purposes of fraud?

A

Yes

176
Q

How is the question of vulnerability addressed in overcharging fraud cases?

A

Either something innately vulnerable about the victim

OR

The victim was acting very stupid, because of their trust

177
Q

Can you deceive a machine?

A

Yes

178
Q

What is the threshold for recklessness as to a false statement for fraud?

A

Indifference/disregard for whether the statement is false

Unreasonable beliefs in truth will negate deception

179
Q

Actus/mens of fraud by failure to disclose

A

Existence of legal duty to disclose

Failure to disclose as a matter of fact

MENS

Dishonesty - IVey
Intention to make a gain or cause a loss

180
Q

What things come under the legal duty to disclose for fraud?

A

Arising from statute

Within transactions of utmost good faith

Contained in the express/implied terms of a contract

Arising from a custom in a particular trade or market

Arising from a fiduciary relationship

181
Q

How many offences of fraud are there technically?

A

One, and three ways to get charged with it

182
Q

What is the actus/mens of fraud by abuse of position?

A

ACTUS:
- occupy a position requiring D to look after V’s financial wellbeing
- abuse that position (use incorrectly or put it to improper use)

MENS
- Dishonesty
- Intention to gain or cause loss

183
Q

For fraud, can you abuse position by an omission?

A

Yes

184
Q

Examples of relationships where you could abuse position for fraud

A

Trustee/beneficiary
Director/company
Professional/client
Agent/principal
Employee/employer
Partners
Family
Voluntary work

Anything not at ‘arms length’

185
Q

Can you have oblique intent with fraud?

A

Yes

186
Q

What is the question the court will as to determine whether the defence of intoxication applies?

A

Did D form the mens rea even though intoxicated?

  • Yes = not off hook
  • No = Acquitted
187
Q

When can the intoxication defence apply?

A

Involuntary intoxication

Voluntary intoxication by non-dangerous drugs

Voluntary intoxication and D committed a specific intent crime

188
Q

For what crimes is the defence of consent typically available?

A

Assault and battery

189
Q

When can the type of crimes that consent is available for be extended?

A

ABH or worse IF

D only intended to commit a battery with consent AND

Did not see risk of ABH+

190
Q

For consent for ABH+, what are the exceptions for when D can claim consent even if D saw the risk of causing harm?

A

Medical

Sport

Horseplay

Tattooing

Body piercing/personal adornment

Sexual gratification

191
Q

What are the 2 elements of the consent defence?

A

Victim consented, or D thought they did

Offence is eligible for consent defence

192
Q

Who has the burden of proof in consent defence?

A

Prosecution must prove V did not consent and D did not believe they had consent

193
Q

Can you use consent if the V consented and D didn’t know it at the time?

A

Yes

194
Q

In what circumstances can you use self-defence?

A

Protect:
- self
- property

Prevent:
- crime
- assist arresting an offender

195
Q

What tests must be satisfied to use self-defence?

A

Trigger: D honestly believed use of force was necessary

Response: Level of force was objectively reasonable in the circumstances as D subjectively believed them to be

196
Q

What 3 considerations help establish whether D believed use of force was necessary in self-defence?

A

Subjectively, whether belief was reasonable or not (mistaken belief due to voluntary intoxication doesn’t fly)

No duty to retreat

Can be used for an antagonist against an innocent 3rd party

197
Q

What 2 considerations are there when examining the response in self-defence?

A

Force will not be reasonable if disproportionate

D can be mistaken and mistake doesn’t have to be reasonable

198
Q

What 2 considerations will the jury make when evaluating whether the force was disproportionate in self-defence?

A
  • Person acting for a legit purpose may not be able to weigh to a nicety the exact measure of any necessary action
  • Evidence that a person did what they honestly and instinctively thought was necessary is strong evidence of reasonable action
199
Q

Is self-defence a complete or partial defence?

A

Complete

200
Q

When is self-defence a ‘house holder case’ (4 criteria)

A

Acts to protect self and another

Uses force while in or partly in a DWELLING

Is not a trespasser at time of force

Believed victim to be in or entering as a trespasser

201
Q

How is the approach to self-defence different in householder/non-householder cases?

A

Triggers is unchanged

Response is more lenient

202
Q

What 2 questions will the jury be asked in householder self-defence cases to determine the propriety of the response?

A

Was the force GROSSLY disproportionate in the circumstances as D believed them to be (if yes, NO DEFENCE)

IF NOT, was the level of force reasonable?

203
Q

What factors in householder self-defence cases are considered when assessing reasonableness?

A

Shock of finding intruder

Time of day

Vulnerability of occupants

204
Q

In what other defences does intoxication play a role as an influencing factor?

A

Self-defence

Consent

Loss of control

Diminished responsibility

Statutory defences

205
Q

Summarise the flow-chart of how the intoxication defence operates

A
206
Q

How does intoxication operate in self-defence cases?

A

If D made drunken mistake as to the need to use self-defence because wasted, they CANNOT rely on that mistake

207
Q

How does intoxication interact with loss of control/diminished responsibility?

A

It is not a bar to pleaing it

208
Q

What question should be asked for intoxication and murder?

A

Even though intoxicated, did D form the mens rea of intention to kill/cause grievous bodily harm?

209
Q

How does voluntary intoxication interact with the statutory defences?

A

If a defence requires an honest belie, then D can use it even if their belief was due to involuntary intoxication

210
Q

What is the actus reus/MENS REA of an attempt?

A

Act that is more than merely preparatory

Intention to commit the full offence (e.g., intention as to the OG actus reus)

211
Q

What is impossibility to inadequacy and is it a valid defence to an attempted crime?

A

That you tried to kill somebody, but turns out the method was not even possible to succeed

No

212
Q

Is conditional intent still intent for an attempt?

A

Yes

213
Q

Define a principal offender

A

Person who has the mens and does the actus

214
Q

What are the possible actus reus for secondary parties?

A

Aid

Abet

Counsel

Procure

Be a party to joint enterprise

215
Q

What is the mens rea for secondary parties?

A

Intention to assist/encourage the principals conduct

Intention that principal will do the actus with the mens (exception: procuring)

Knowledge of facts/circumstances necessary for the offence to be criminal

216
Q

What 2 considerations are there, when considering whether a D aided?

A

No causation needed (‘aid’ doesn’t need to have helped)

No consensus required with the principle offender

217
Q

What is the actus reus of abbetting?

A

Incite, instigate encourage

At time of offence being committed

218
Q

What 3 considerations should you examine when looking at whether somebody was abetting?

A

Causal link is not necessary

Principal must know they’re being abetted

Mere presence MAY not be enough

Failing to prevent an offence

219
Q

When will a secondary party be liable for failing to prevent an offence?

A

If they have some sort of real established control over them e.g., employment

220
Q

What are the key points for the actus reus of counselling?

A

Advice or encouragement

No causal link

Consensus: must be contact between parties and a connection between the counselling and the offence

221
Q

What are the key points for the actus reus of procuring?

A

Produce by endeavour or endeavour to produce

No consensus needed

MUST BE causal link between D’s act and the commission of the offence

222
Q

What happens if you can’t prove which of 2 people committed an offence?

A

Neither can be convicted

223
Q

Can a secondary party be convicted if the principal is acquitted?

A

Yes

224
Q

Can you be convicted for attempting to do a secondary party offence?

A

No

225
Q

Can you be convicted as a secondary offender when the principal itself is charged with an attempted offence?

A

Yes

226
Q

When can joint enterprise apply?

A

When people committing a crime together, go to commit the crime and then one of them also commits another crime that is incidental to the first crime

227
Q

In joint enterprise, for the D that didn’t commit the second ‘incidental’ crime, what does the prosecution have to show??

A

D was party to the OG joint enterprise

Had the relevant mens rea for an accessory

228
Q

What is the mens for an assessory?

A

Intention to assist/encourage principals conduct

Intention that principal will do actus with the mens

Knowledge of existing facts/circumstances necessary for the offence to be criminal

SQE1 FLK 2 (19 decks)

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