Criminal Law 2 Flashcards
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
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
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
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
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)
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
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
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
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)
10
Q
Intention and foresight of consequence
A
Moloney (1985)
Nedrick (1986)
Woolin (1998)
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
12
Q
Duress
A
Is where the defendant is threatened with death or serious injury unless they take part in an offence
13
Q
Crime and Courts (2013)
A
Gives wider defence to householders where intruders are concerned
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
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
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
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
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
19
Q
Defences that lead to voluntary manslaughter
A
Partial defences
Diminished Responsibility
Loss of Control
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
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
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
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
24
Q
Ability to understand nature of conduct
A
Automatic State- not aware of actions
Delusional
Severe learning difficulties
25
Ability to form rational judgment
D knows what they are doing but cannot form rational judgment because:
Paranoia
Schizophrenia
Battered Women’s Syndrome
26
Ability to exercise self-control
Due to a condition is unable to control their actions. Byrne
27
Provides an explanation for Ds conduct
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
28
3 possibilities to consider when D was also intoxicated at the time of the killing
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
29
Recognised Medical Condition for diminished responsibility
Alcohol Dependency Syndrome (ADS) eg Tandy
30
Wood (2008)
2 types of intoxication
Voluntary- D in control of drinking
Involuntary- spiked drink, forced under duress, D no control over drinking (ADS)
31
R v. Stewart 3 stage test for Juries
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
32
Reforms of diminished responsibility
Coroners and Justice Act now gives statutory definitions to things like diminished responsibility
Substantially Impaired is now clearly defined
33
Problems with diminished responsibility
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
34
Law Commission report 2006 suggestion on diminished responsibility
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
35
Loss of control
Is a partial defence that replaced provocation which was set out in the coroners and justice act in 2009
36
Ahluwalia (1992)
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
37
Recognised trigger
Something which sets you off identified by a reasonable creature in the same situation and the same characteristics
38
Qualifying triggers
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
39
Things Said or Done
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
40
Sexual infidelity and desire for revenge
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
41
Standard of self-control
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
42
Circumstances of the defendant
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
43
Voluntary intoxication and reacting in the same way
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
44
Reform of the Law on Loss of Control
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)
45
Involuntary Manslaughter
Is the unintended killing of a person while committing a crime or acting in a reckless or negligent manner
46
2 ways of committing involuntary manslaughter
Unlawful Act Manslaughter
Gross Negligence Manslaughter
Maximum sentence imposed is life and the minimum is a custodial
47
Elements of UAM
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
48
Danegerous Act and awareness of some harm
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
Causing the death and mens rea
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
Harm in UAM
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
Gross Negligence Manslaughter
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
Duty of care in gross negligence manslaughter
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
Creating a state of affairs and duties through relationship to the victim
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
Evaluation of Manslaughter
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
Theft
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
R v. Pitham and Hehl
Attempting to sell somebody else’s property is also deemed as theft
57
R v. Morris
Switching prices on products is also considered stealing
58
Consent to appropriation, consent without deception and appropriation at one moment in time
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
Property
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
Belonging to another
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
Propriety Interest
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
Property received under obligation
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
Property received by mistake
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
Behaviour which is not dishonest
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
The Ghosh test
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
Borrowing or Lending
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
Evaluating Law on Theft
.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
Robbery
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
Force or threat of force
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
Force immediately before or at the time of theft
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
Force in order to steal
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
Burglary
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
Entry
Collins: Jury was asked to consider if entry was deemed to be substantial
Ryan: Entry was deemed sufficient
74
Part of building
When the trespasser might have permission to be in one part of a building but not another eg R v. Walkington
75
Building or part of building
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
As a trespasser and going beyond permission
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
Mental Capacity Defences
Insanity
Automatism
Intoxication
78
Insanity
A full defence named the special verdict- ‘not guilty by reason of insanity’ and isn’t applicable to strict liability offecnes
79
M’Naghten Rules
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
Defect of reason and disease of the mind
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
Not knowing the nature and quality of the mind
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
The Special Verdict
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
Evaluation of insanity
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
Decision in Windle, Social stigma and proof of insanity
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
Automatism
Insane Automatism
Non-Insane Automatism
Self-Induced Automatism
86
Insane Automatism
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
Non-Insane Automatism
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
Self-Induced Automatism
When the defendant knows that their conduct is likely to bring about and automatic state eg R v. Bailey
89
Rules set out by C of A on automatism
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
The Law on intoxication
Whether somebody is guilty or now will depend on:
-Whether intoxication was voluntary or involuntary
-Whether the offence committed was specific or basic
91
Voluntary Intoxication
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
Involuntary intoxication and intoxicated mistake
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
Proposals for reform in the law of intoxication
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
Problems with the law intoxication
Specific and Basic Intent offences are too limiting
Problem with what is deemed as involuntary intoxication
95
General Defences
Self-Defence
Duress by threats
Duress by necessity
Duress by cirumstances
96
Self-Defence
Criminal Law Act states is is the act of defending oneself from attacks and the defence of another
97
Reasonable force in relation to self-defence
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
Householders in relation to self-defence
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
Rules on use of force in self-defence for a jury to decide
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
Evaluation on self-defence
.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
Duress by threats
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
Threats
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
Subjective and Objective Tests for duress under threat
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
No safe avenue of escape and imminence of threat
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
Intoxication and self-induced duress
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
Duress by circumstance
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
Evaluation of defence by threats and circumstance
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
Duress by necessity
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
C of A test for duress of circumstance and necessity set out in Shayler
-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
Consent as a defence to NFO’s
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
Implied consent
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
Consent to minor injuries
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
Mistaken belief in consent
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
Need for consent in medical procedures
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
What is attempt
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
Actus reus of attempts
‘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
Mens Rea of attempt
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
Mens Rea and Recklessness in attempted murder
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
Impossibility
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
