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A-Level Law > Criminal Law 2 > Flashcards

Criminal Law 2 Flashcards

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1
Q

Murder

A

Also referred to as a homicide is a common law offence and is defined by Lord Coke as the unlawful killing of a reasonable creature not under the Queen’s peace with malice aforethought expressed or implied

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2
Q

Actus Reus of murder

A

The defendant must have killed a reasonable creature in peace time in an unlawful matter. ‘Killed’ can be an act or omission that leads to someone’s death

Gibbins and Proctor: father and mistress found guilty as the girl died because she starved to death

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3
Q

Attorney General’s Reference (No.3 of 1994)

A

Held that a foetus is not a reasonable creature and it has to be birthed before killed. House of Lords said that the foetus although injured in the womb and born, if it dies can give rise to criminal responsibility

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4
Q

Brain Dead

A

Is a reasonable ground for doctors to switch off life support however if the intention of the person switching off the machine is to deliberately kill the victim, they can be guilty of murder

The year and a day rule states that unless the victim dies as a result of an attack within a year and a day then the defendant could not be charged. The Law Reform Act has since changed this to 3 years

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5
Q

Unlawful

A

If a killing is done in self defence then it is not unlawful as shown in the S3 (1) of the Criminal Law Act 1967

Re A (Conjoined Twins)

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6
Q

Reasonable Force

A

Defendant must be judged on whether the force used was reasonable and proportionate in the anguish of the moment eg Beckford

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7
Q

Householder Cases

A

Crime and courts gives a wider defence. Although householders are permitted to use more force this cannot he grossly disproportionate

The force must be used while D is in or partly in a building that is dwelling. This can include a shop with a residence attached:
D must not be a trespasser
D must have believed V to be a trespasser

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8
Q

Excessive Force

A

If the amount of force used to defend oneself is deemed excessive then the defence will fail

Must be reasonable in the circumstance
D must have believed it to be the situation even if mistaken
Personality disorder not taken into account eg anger

Clegg: once the threat has passed if the defendant takes action then it is murder

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9
Q

Mens Rea of Murder

A

2 different intentions:
Express Malice Aforethought (intention to kill)
Implied Malice Aforethought (intention to cause grievous bodily harm)

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10
Q

Intention and foresight of consequence

A

Moloney (1985)
Nedrick (1986)
Woolin (1998)

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11
Q

2006 Law Commission Report on murder

A

Identifies the following problems with murder,manslaughter and infanticide:
The law on murder has developed bit by but in individual cases rather than a coherent whole
A defendant can be convicted of murder even if intent was to merely cause serious harm
There is no defence available if excessive force is used in self-defence

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12
Q

Duress

A

Is where the defendant is threatened with death or serious injury unless they take part in an offence

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13
Q

Crime and Courts (2013)

A

Gives wider defence to householders where intruders are concerned

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14
Q

Mandatory Life Sentences

A

If ages 18+ and found guilty of murder judge must issue a mandatory life sentence
Offenders aged 10-17 are detained at her Majesty’s Pleasure

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15
Q

Minimum Sentences

A

Although the judge will impose a mandatory life sentence, they must also state how many years they must serve in custody before being released

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16
Q

Criminal Justice Act 2003 on punishments for murder

A

30 years minimum of murders of a police officer,prison officer, sexual or sadistic killings
15 years minimum for murders not falling into the above categories

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17
Q

The Law Commissions suggestions on murder

A

Should be divided into 2 offences:
First degree and second degree. First degree would be intention to kill and second degree would be intention to cause someone serious injury but has resulted in death

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18
Q

Assisting Suicide

A

Suicide Act states it is illegal and punishable by up to 4 years imprisonment. In a Police Guidance Statement before the prosecution of an assisted suicide 3 factors must be fulfilled:
Is it in the publics interest?
Each case would be considered subjectively

Majority of assisted suicides are don’t by elderly in their partners so police tend not to pursue

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19
Q

Defences that lead to voluntary manslaughter

A

Partial defences
Diminished Responsibility
Loss of Control

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20
Q

Diminished Responsibility

A

Introduced in the Homicide Act 1957 as a partial defence. States that a person is not to be convicted of murder if they were suffering from an abnormality in mental functioning which:
a. Arose from a recognised mental condition
b. Substantially impaired their ability to understand a conduct of nature, self control and exercise reason
c. Provides explanation for Ds actions and omissions in doing or being party to the killing

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21
Q

Abnormality in mental functioning

A

A state of mind so different from that of an ordinary human being that the reasonable man would deem abnormal eg Byrne- irresistible urge to kill

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22
Q

Causes of abnormality of mental functioning

A

S2 (1) Homicide Act 1957 states:

Both psychological and physical conditions
Covers any recognised mental disorder
Medical evidence must be provided

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23
Q

Substantially Impaired

A

Homicide Act 1957 states it is:

The inability to from rational judgment, exercise self control and to understand nature of their conduct

Coroners And Justice Act 2009 have now put these points into statutory form
R v. Golds

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24
Q

Ability to understand nature of conduct

A

Automatic State- not aware of actions
Delusional
Severe learning difficulties

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25
Q

Ability to form rational judgment

A

D knows what they are doing but cannot form rational judgment because:
Paranoia
Schizophrenia
Battered Women’s Syndrome

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26
Q

Ability to exercise self-control

A

Due to a condition is unable to control their actions. Byrne

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27
Q

Provides an explanation for Ds conduct

A

D has to prove that the abnormality of mental functioning provides an explanation for their acts/omissions eg Dawes- if D was intoxicated at the time then dismissed responsibility cannot be plead however if there is an abnormality of function in addition to intoxication there may be a difference eg Dietschmann

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28
Q

3 possibilities to consider when D was also intoxicated at the time of the killing

A

Was the defendant intoxicated at the time of the killing
Was the defendant intoxicated and had a pre-existing abnormality of mental functioning
Was the intoxication due to an addiction

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29
Q

Recognised Medical Condition for diminished responsibility

A

Alcohol Dependency Syndrome (ADS) eg Tandy

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30
Q

Wood (2008)

A

2 types of intoxication
Voluntary- D in control of drinking
Involuntary- spiked drink, forced under duress, D no control over drinking (ADS)

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31
Q

R v. Stewart 3 stage test for Juries

A

Was D suffering from an abnormality of the mind. ADS is not enough
If so was the abnormality caused by ADS
If so was Ds mental responsibility substantially impaired

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32
Q

Reforms of diminished responsibility

A

Coroners and Justice Act now gives statutory definitions to things like diminished responsibility
Substantially Impaired is now clearly defined

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33
Q

Problems with diminished responsibility

A

Burden if proof is on the defendant. In most cases a raised defence is left to the prosecution to disprove
Everyone is presumed innocent before proven guilty so it is unfair for the defendants to have to try and prove their defence

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34
Q

Law Commission report 2006 suggestion on diminished responsibility

A

Developed Mental Responsibility- not the same as a learning disability. If there is no such defence children as young as 10 may be convicted of murder when they are developmentally immature

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35
Q

Loss of control

A

Is a partial defence that replaced provocation which was set out in the coroners and justice act in 2009

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36
Q

Ahluwalia (1992)

A

the wife setting the husband on fire in his sleep was held as murder as the provocation wasn’t immediate. She was granted diminished responsibility however

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37
Q

Recognised trigger

A

Something which sets you off identified by a reasonable creature in the same situation and the same characteristics

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38
Q

Qualifying triggers

A

In order for there to be a qualifying trigger the act sets out:
. V must have fear of serious violence from Ds behalf or another identified person
. A thing or things said or done which constitute circumstances of an extremely grave character of have caused D to have a justifiable reaction in being wronged

Dawes: failed because his loss of control was no triggered from a fear of violence when he himself had triggered the person in the first place

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39
Q

Things Said or Done

A

Daughty: man was convicted for killing his baby for crying for 19 days. The conviction was quashed as it should have been left to the jury to decide if the baby was a form of provocation

Zebedee: conviction was upheld as it was deemed that the father soiling himself was not sufficient grounds for ‘things said or done’

Jury must always be asked to consider the validity of a qualifying trigger

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40
Q

Sexual infidelity and desire for revenge

A

Excluded from the 2009 act as government felt it could be used as an excuse to violence against women

Clinton (2012): can still use sexual infidelity and revenge if there are other factors involved

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41
Q

Standard of self-control

A

The 2009 act states that apart from Ds sex and age they must have demonstrated the normal degree of tolerance and restraint and in the circumstances of D, the reasonable man might have reacted in the same or similar way

Camplin: jury was directed to ignore the age of the boy. He was convicted of murder however was mitigated to manslaughter by the House of Lords

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42
Q

Circumstances of the defendant

A

Age and sex as well as circumstances are taken into consideration eg Gregson where he was taunted about his unemployment, depression and epilepsy

Must be held someone in the same circumstances would have reacted in the same way

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43
Q

Voluntary intoxication and reacting in the same way

A

Asmelah: the C of A refused to allow voluntary intoxication as a defence
. Only exception was if someone with severe alcohol or drug problems was provoked it could be used as a qualifying trigger

Van Dagen: held that a reasonable person would have lost control in the same situation however not reacted in the same way

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44
Q

Reform of the Law on Loss of Control

A

The problem here was that ‘reasonable man’ equated to reasonable adult
Characteristics now changed to circumstances however their previous interpretation was still generous

Hill (2008)
Marhall (1995)

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45
Q

Involuntary Manslaughter

A

Is the unintended killing of a person while committing a crime or acting in a reckless or negligent manner

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46
Q

2 ways of committing involuntary manslaughter

A

Unlawful Act Manslaughter
Gross Negligence Manslaughter

Maximum sentence imposed is life and the minimum is a custodial

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47
Q

Elements of UAM

A

The defendant must do the unlawful act
The act must be dangerous in an objective test
It must cause death
Defendant must have the required mens rea eg DPP v. Newbury and Jones

Along with NFOs, any crimnal act can lead to finding UAM eg Arson in R v. Goodfellow

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48
Q

Danegerous Act and awareness of some harm

A

In an objective test the act must be dangerous and if a sober and reasonable man recognises some harm relating to the risk then this is satisfied eg R v. Church

It is not necessary for the defendant to realise the risk of harm eg R v. Larkin

Risk of harm must refer to physical harm eg R v. Dawson but the defendant must also be aware of victim’s frailty and consequence of physical harm eg R v. Watson

49
Q

Causing the death and mens rea

A

Causation is the same as murder, although an intervening act can break the chain of causation as stated in the Thin Skull rule and Hayward

The issue of supplying drugs and then administering it then you are the cause eg R v. Cato and R v. Dalby

50
Q

Harm in UAM

A

The general rule is that the defendant must know that their act/omission may result in some harm. They do not need to be aware it may cause serious harm

51
Q

Gross Negligence Manslaughter

A

When the defendant owes the victim a duty of care but breaches it in a serious way that the victim dies eg R v. Adamako (was also a test for professionals)

52
Q

Duty of care in gross negligence manslaughter

A

Caparo Test is used; 1. Proximity of relationship 2. Foreseeability of harm 3. Is it fair and just to impose a duty?

Acts and omissions can form the basis of GNM eg R v. Singh and R v. Litchfield

53
Q

Creating a state of affairs and duties through relationship to the victim

A

This is where the defendant creates a situation where duty of care will exist eg R v. Evans where the conviction was upheld as she had created a state of affairs by supplying the drugs

Causation is important as it must be proven breach of duty caused the death eg R v. Dobinson and the anorexic girl

54
Q

Evaluation of Manslaughter

A

The defendant’s culpability can vary enormously

Law Commission proposed a 3 tier structure; first degree, second degree and manslaughter as well as a 2 tier categories of killing involving negligence; ‘reckless killing’ and ‘killing by gross negligence’

55
Q

Theft

A

According to the Theft Act:

A person is guilty of theft if he dishonestly appropriates property belong to another with the intention to permanently deprive the other of it

56
Q

R v. Pitham and Hehl

A

Attempting to sell somebody else’s property is also deemed as theft

57
Q

R v. Morris

A

Switching prices on products is also considered stealing

58
Q

Consent to appropriation, consent without deception and appropriation at one moment in time

A

Appropriation is where the individual assumes the rights of the owner and acts as if they own the stolen items

R v. Gomez: theft was also interpreted as the act of using cheques known to be stolen to pay for goods. Referred to as a ‘thing in action’

R v. Hinks: defendant had obtained consent but still held as theft due to the dishonest nature

59
Q

Property

A

Is a wide ranging definition and can be tangible and intangible eg R v. Kelly and Lindsay

‘Real property’ refers to land and buildings. Sections 4 (1) and (2) state this can happen in three circumstances
‘Thing in action’ refers to cheques and bank accounts
Intangible property such as exam questions cannot be stolen eg Oxford v. Moss

Wild animals, plants and fungi are things that cannot be stolen according to S4 (3) and (4)

60
Q

Belonging to another

A

Wide ranging and not always necessary the legal owner but rather the person who is in control or possession it at the time

R v. Turner: D was convicted of stealing his own car AKA Lien
R v. Basildon: the theft of rubbish and items left at doorstep was deemed as theft as they were council property

61
Q

Propriety Interest

A

Section 5 states when a person owns and is in possession and control of a property they can still be guilty if someone has an interest in it eg R v. Webster

62
Q

Property received under obligation

A

Deals with situation where property is received under obligation to deal with it in a certain way however the obligation is unclear eg R v. Hall

R v. Klineberg and Morsden: was very clear about how the money was intended to be used

63
Q

Property received by mistake

A

Attorney General’s Reference no.1 of 1983 states that if property is received by mistake there is an obligation to return the property

64
Q

Behaviour which is not dishonest

A

S2 (1) a- they have the right to deprive someone of it
S2 (1) b- they have the other’s consent
S2 (1) c- the owner of the property cannot be discovered through reasonable steps

65
Q

The Ghosh test

A

R v. Ghosh led to a 2 question test consisting of a subjective and objective part

Objective: was what was done dishonest according to the standards of reasonable and honest people?
Subjective: did the defendant realise that what he was doing was dishonest by those standards?

Ivey v. Genting: got rid of the second part of the test however and set precedent

66
Q

Borrowing or Lending

A

S6 states that borrowing is not theft as long as the it is for a period of time eg R v. Lloyd

Conditional Intent: R v. Easom there was no evidence of theft as there was no evidence D had intended to permanently deprive the owner of the bag and its contents

67
Q

Evaluating Law on Theft

A

.Appropriation
- Width of appropriation: Law has gone beyond what parliament intended
- Theft Of Gifts
-Ambiguity around dishonesty and appropriation

.Property belonging to another
-Very broad definition

.Dishonesty
-Ghosh Test leads to longer trials

.Intention to permanently deprive
-Why should it matter if property has been taken unlawfully if the intention was to return it in the first place?
R v. Zerei

68
Q

Robbery

A

S8 of the Theft Act: “A person is guilty of robbery of he steals and immediately before or puts or seeks to put any person in fear of being then and there subjected to force”

R v. Zerei: there was no theft although there was violence
Corcoron v. Anderton: when force is used and the theft is complete we then have a robbery

69
Q

Force or threat of force

A

Force must be proven no matter how small eg R v. Clouden
No direct contact between D and V means no robbery eg P v. DPP

70
Q

Force immediately before or at the time of theft

A

The definition of immediately. How long is this?

R v. Hale: force used immediately before and after the theft was ongoing and incomplete

R v. Lockley: any force used after the theft is complete does not make it robbery

71
Q

Force in order to steal

A

Force must be used in the purpose of stealing

The key elements of robbery are:
-Theft eg Corcoran v. Anderton
-‘On any person’ and not just the victim of theft but everyone there at the time
-Immediately before or at the time of theft
-In order to steal

72
Q

Burglary

A

S9 (1)(a)of the theft act states it is when D enters a building or part of building as a trespasser with the intent to steal, inflict GBH and do unlawful damage

S9 (1)(b) covers the attempts of that

73
Q

Entry

A

Collins: Jury was asked to consider if entry was deemed to be substantial

Ryan: Entry was deemed sufficient

74
Q

Part of building

A

When the trespasser might have permission to be in one part of a building but not another eg R v. Walkington

75
Q

Building or part of building

A

Includes things like caravans and houseboats.

B and S v. Leathley a fridge was deemed as building however in Seekings and Gould a lorry trailer was not

76
Q

As a trespasser and going beyond permission

A

If a person has permission to enter they are not a trespasser eg R v. Collins

For a charge of burglary to take place D must know they have trespassed or trespassed recklessly

A person could have permission to be somewhere however if they abuse that permission then they can be liable for burglary eg R v. Smith and Jones

77
Q

Mental Capacity Defences

A

Insanity
Automatism
Intoxication

78
Q

Insanity

A

A full defence named the special verdict- ‘not guilty by reason of insanity’ and isn’t applicable to strict liability offecnes

79
Q

M’Naghten Rules

A

M’Naghten led to a legal set or rules for insanity. There must be:

-A defect of reason
-A result of the disease of the mind
-Causes D to not know the nature and quality of the act

80
Q

Defect of reason and disease of the mind

A

R v. Clarke held that in order for something to be labelled as insane they their powers of reasoning must be impaired. If they are absent minded or confused this is no grounds for defence

R v. Kemp: defect of reason must be caused by a disease of the mind or any physical disease that affects the mind

R v. Sullivan: deals with epilepsy
R v. Hennessy: deals with diabetes and high blood sugar
R v. Burgess: sleep walking comes under insanity
R v. Quick: if D is in a state of diminished responsibility this is not insanity

81
Q

Not knowing the nature and quality of the mind

A

If D is in a state of unconsciousness or impaired this satisfies the M’Naghten Rules.
If they are conscious however due to a mental condition do not know what happened then this can satisfy M’Naghten as well

R v. Oye: the C of A held that D did not know the nature and quality of his act therefore substituted an ABH charge with the special verdict

R v. Windle: if D knows the nature and quality of act despite having a mental illness- this is not insanity

82
Q

The Special Verdict

A

Criminal Procedure Act 1991 provides options for judges to impose on a defendant who successfully pleaded insanity. They can:

-Send D to a mental hospital
-Impose a hospital order
-Issue absolute discharge or supervision charge

If the charge was murder then the judge must impose and indefinite hospital order

83
Q

Evaluation of insanity

A

M’Naghten Rules- outdated and are from a time where knowledge on mental illness was limited

Legal definition of insanity- 2 issues here. Firstly not all medal conditions are covered. Secondly people with certain physical conditions can be deemed as insane

Overlap with automatism- causes confusion between the 2

Overlap with diminished responsibility- 2013 Law Commission proposed a new defence to replace insanity called ‘not guilty by reason of medical condition’

84
Q

Decision in Windle, Social stigma and proof of insanity

A

A defendant who is suffering from a serious mental illness and does not know his or her act is morally wrong cannot have a defence of insanity if they know their act is legally wrong
- An Australian case by the name of Johnson went against this and the C of A followed Windle

2013 Law Commission stated it is inappropriate to label anyone as insane and it is a breach of the European Convention of Human Rightd Article 6

85
Q

Automatism

A

Insane Automatism
Non-Insane Automatism
Self-Induced Automatism

86
Q

Insane Automatism

A

A disease of the mind within the M’Naghten Rules
Verdict will be ‘not guilty by reason of insanity’
Eg Sleepwalking in R v. Burgess

87
Q

Non-Insane Automatism

A

A defence when the crime committed by D is not voluntary and must have the required mens rea

Cause of automatism must be external such as a blow to the head, sneezing or hypnotism eg Hill v. Baxter and R v. T

Reduced or partial control of one’s actions is not sufficient for NI automatism eg Attorney General’s Reference (No.2 of 1992) states ‘total destruction of voluntary control is required’

88
Q

Self-Induced Automatism

A

When the defendant knows that their conduct is likely to bring about and automatic state eg R v. Bailey

89
Q

Rules set out by C of A on automatism

A

Specific Intent Offences: when a specific mens rea is required (such as murder) then they can rely on the defence of automatism

Basic Intent Offences: if D has been reckless in getting into the state of automatism then they cannot rely on automatism

DPP Majewski: voluntary intoxication through drinking or drugs is also no grounds for defence

R v. Hardie: if defendant was unaware that their actions led to self-induced state then they can rely on automatism

90
Q

The Law on intoxication

A

Whether somebody is guilty or now will depend on:
-Whether intoxication was voluntary or involuntary
-Whether the offence committed was specific or basic

91
Q

Voluntary Intoxication

A

If the defendant has voluntarily made themselves intoxicated they have not formed the necessary mens rea for a specific intent offence and are not guilty

DPP v. Beard: Lord Birkenhead stated that if someone is so drunk and commits a specific intent offence they could not have possibly been in the right mind to have developed the mens rea

R v. Sheehan: similar to Beard. Murder charge mitigated to a manslaughter

Northern Ireland v. Gallagher: defendant was convicted of murder as he had already set his mind to kill his wife and used intoxication as a form of ‘dutch courage’

DPP v. Majewski: voluntary intoxication is a reckless cause of conduct

Harris: a condition caused by a previous dependency can be taken into consideration

92
Q

Involuntary intoxication and intoxicated mistake

A

If D drinks something laced or takes prescribed drugs with an unexpected side effect they do no have the mens rea and can use the defence eg R v. Hardie

R v. Kingston: if however they did have the required mens rea when they committed the offence despite being involuntarily intoxicated this is not a defence

R v. Lipman: mens rea is reckless or is a mistake there is no defence due to voluntary recklessness where D killed his girlfriend due to a hallucinogenic dream induced by LSD

R v. O’Grady: if the mistake was regarding the amount of force needed the there is no defence

93
Q

Proposals for reform in the law of intoxication

A

Law Commission Report 2009:
-Distinction between voluntary and involuntary intoxication should be kept
-Specific and Basic intent should be abolished
-Offences should be categorised through an integral fail system

Law Commission report also covered what is deemed as involuntary intoxication eg spiked drinks, forced to take substance or a substance taken for ‘proper medical purpose’

94
Q

Problems with the law intoxication

A

Specific and Basic Intent offences are too limiting
Problem with what is deemed as involuntary intoxication

95
Q

General Defences

A

Self-Defence
Duress by threats
Duress by necessity
Duress by cirumstances

96
Q

Self-Defence

A

Criminal Law Act states is is the act of defending oneself from attacks and the defence of another

97
Q

Reasonable force in relation to self-defence

A

Criminal Justice and Immigration Act sets out what reasonable force is:
-The use of force ‘honestly and instinctively’
-If excessive force is used after threat has passed there is no defence eg R v. Hussain

98
Q

Householders in relation to self-defence

A

Crime and Courts gives a wider defence to householders where:
-D is partly in the building that is a dwelling
-D must not be a trespasser
-D must have believed V to be a trespasser

House holders are not allowed to choose any force they desire eg Collins v. Secretary
D must also be judged by fact regardless if mistake or reasonable/unreasonable eg R v. Gladstone
Must not be ‘grossly disproportionate’

99
Q

Rules on use of force in self-defence for a jury to decide

A

Self defence, defence of another and prevention of a crime are full-defences
Force must be reasonable
Personality disorders cannot be taken into account
Force must not be excessive

100
Q

Evaluation on self-defence

A

.Is force necessary eg R v. Bird states that V does not have a duty to retreat unless it’s for a legitimate purpose

.Pre-Emptive Strike eg Attorney General’s Reference no.2 of 1983 states someone who is in fear of attack has the right to prepare to defend themself

.Excessive Force can be used inappropriately in householder cases eg R v. Clegg and R v. Martin

101
Q

Duress by threats

A

Although someone was under duress if they have the correct actus reus and mens rea for the crime they will be held liable. However if it was proven D was terrified and failed to act as an independent actor the defence can be used.

Duress if no longer a defence as it used to be used by a secondary role in a crime such as DPP v. Lynch however since R v. Howe the H of L rules it cannot

Even a minor and less able to resist pressure cannot use duress eg R v. Wilson

102
Q

Threats

A

R v. Valderama-Vega: there was a combination threats however as death was one of them all of the threats were taken into consideration. The threat has to be to the defendant or immediate family

103
Q

Subjective and Objective Tests for duress under threat

A

Subjective: as the defendant compelled to act as they did because they reasonably believed they had good cause to fear serious injury or death?

Objective: would a sober person of reasonable firmness and similar characteristics have responded in the same way?

Hasan: Ds belief in threat must be genuine

Bowen: Low IQ is not taken into consideration

104
Q

No safe avenue of escape and imminence of threat

A

If it is established that there had been a window of opportunity to escape the defence fails as there can be no avenue

R v. Hudson and Taylor: if police protection is possible then duress cannot be relied upon however age must be considered

R v. Abdul Hussain: if the threat is hanging over the defendant at the time they commit the offence then duress is available

R v. Cole: there has to be sufficient connection between the threats and the crime committed

105
Q

Intoxication and self-induced duress

A

R v. Sharp: where the defendant voluntarily puts themselves in a situation where is is likely they may be subjected to threats and violence such as gangs and criminal culture- this is self induced

R v. Shepherd: D could use the defence as the gang he joined were shoplifters

106
Q

Duress by circumstance

A

When D commits an offence owing to the situation they find themselves in and is a full defence

R v. Willer: if the only escape is to commit an offence then this must be taken into consideration
R v. Conway: must take circumstance into account
R v. Pommell: defence available in all situations except murders and forms of treason
R v. Cairns: not required to prove threat was authentic

107
Q

Evaluation of defence by threats and circumstance

A

Unavailability for murder: it is harsh and unfair eg R v. Wilson however could be used as a tactic for secondary parties eg R v. Lynch

No allowance for Low IQ: does not take into account the intellect of the individual eg R v. Bowen

Police protection: could not be used as fool-proof as some people may have not contacted the police out of fear of consequence. Uncertainty wether someone who can call the police but does not can use the defence

Proposals for reform: law commission report proposed defence of duress should be available for all crimes especially murder

108
Q

Duress by necessity

A

Is where it may be necessary to break the law in order to prevent a greater evil

R v. Dudley and Stephens: 17 yr old cabin boy eaten
Re.F: necessity allowed a girl with severe disability to be sterilised
Re.A (conjoined twins): necessity was available as for one to live the other must die

109
Q

C of A test for duress of circumstance and necessity set out in Shayler

A

-Act must be done to prevent greater evil
-The evil must be directed at the defendant or persons whom they are responsible for
-Act must be reasonable and proportionate to the evil avoided

110
Q

Consent as a defence to NFO’s

A

When the victim agrees to suffer an injury there is no offence eg R v. Donovan and R v. Slingsby

Consent must be real and not based in deceit eg R v. Tabbasum

Consent through fear is not real eg R v. Olugboja

111
Q

Implied consent

A

Is in everyday life such as situations where we interact and have indirectly consented to them by putting ourselves in that situation

R v. Barnes: convictions were quashed due to implied consent

112
Q

Consent to minor injuries

A

Such as fighting to settle differences is not a defence unless under certain circumstances put forward by Attorney General’s Reference (no.6 of 1980) which the ‘etc’ part has led to leeway

R v. Brown: sadomasochists and penis role play

113
Q

Mistaken belief in consent

A

The defendant can use this as a defence if they genuinely believed the victim consented eg R v. Jones

R v. Barnes set out matters to be considered:
-Intentional infliction of injury
-Reckless infliction of injury
-Off the ball injuries

114
Q

Need for consent in medical procedures

A

Necessary in medical procedures either from the patient or if the patient is unconscious they can refer to their relatives

If treatment needs to be performed quickly then this can be performed without consent

115
Q

What is attempt

A

When the defendant has tried and failed to commit an offence it is right and proper to hold them criminally liable eg R v. White

Criminal Attempts Act states it is when a person does an act which is ‘more than merely preparatory ‘

116
Q

Actus reus of attempts

A

‘More than merely preparatory’: D need not have performed the crime proper nor need they have reached the point of no return

R v. Gullefer: Ds actions were just merely preparatory therefore he was not guilty of attempting to steal or embark the crime proper

The C of A states that the preparatory acts had to have come to an end and the defendant had embarked the crime proper

R v. Geddes: 1. Had the accused moved from planning to execution 2. Had the accused done an act to show he began committing the offence

117
Q

Mens Rea of attempt

A

If the prosecution cannot prove that D had the intention then D is not guilty of the attempt eg R v. Easom and R v. Husseyn

C of A held if there was conditional intent D could be charged with an attempt

118
Q

Mens Rea and Recklessness in attempted murder

A

Higher level of intention for attempted murder than for murder itself.

INTENTION TO CAUSE GBH IS NOT ENOUGH EG R V. WHYBROW THERE MUST BE EVIDENCE OF SPECIFIC INTENT TO KILL

Recklessness is not sufficient eg R v. Millard and Vernon however if recklessness is a part of the offence then this can be suffcient

119
Q

Impossibility

A

If a person has attempted to commit what they thought was an offence but actually wasn’t then they may or may not be guilty of an attempt eg Anderton v. Ryan

A-Level Law (8 decks)

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