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SQE 2 > Criminal Law Core Principles (complete deck) > Flashcards

Criminal Law Core Principles (complete deck) Flashcards

1
Q

In which court do all cases start

A

Magistrates (more serious offences then move to Crown Court)

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2
Q

Whose burden of proof does any criminal case lie on, and to what extent

A

Prosecution: beyond reasonable doubt

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3
Q

Depending on the defence raised, the 2 burden of proof levels that the defence may be required to hit are:

A

(1) On balance of probabilities (more likely than not)
(2) Nothing! Just raise the defence and its then prosecutions burden to disprove beyond reasonable doubt

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4
Q

2 tests for criminal causation

A

(1) but for test
(2) legal cause: D’s action is SUBSTANTIAL and OPERATIVE (more than minimal and nothing broke the chain)

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5
Q

What does not count as breaking the causal chain in legal causation (substantial + operative)

A

(1) thin skull rule
(2) refusal of treatment (jehovahs witnesses)

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6
Q

2 types of intention for mens rea across all criminal offences

A

Direct: what D set out to do
Indirect (oblique): outcome was a virtual certainty and D knew it was a virtual certainty

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7
Q

What is the difference between a ‘basic intent’ and ‘specific intent’ offence?

A

Basic = can be done with intent or recklessness
Specific = specific intent is required (not recklessness)

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8
Q

What is the doctrine of transferred malice?

A

Transferring the intended malice from one victim to another

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9
Q

What is the worst outcome for D in a case of transferred malice?

A

Found guilty of 2 offences: the completed offence against the actual victim, and the attempted offence against the intended victim.

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10
Q

When does transferred malice not apply?

A

When the offence intended is DIFFERENT. It can transfer across victims only, not across different crimes.

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11
Q

2 limbs of recklessness

A

(1) D foresees a risk (subjective)
(2) In all circumstances known to D, it is an unreasonable risk to take (objective)

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12
Q

2 limbs for negligence

A

(1) Duty of care
(2) Breached the standard of care expected

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13
Q

Test for murder

A

(1) D caused
(2) the death of a human
(3) unlawfully
(4) with the intention to kill or cause GBH

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14
Q

At what point in a murder case does the defence have to raise evidence?

A

Once the prosecution has proved the elements of murder

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15
Q

Which 2 main defences to murder reduce the offence to voluntary manslaughter?

A

(1) Loss of control
(2) Diminished responsibility

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16
Q

What is the test for diminished responsibility for murder and what is the burden of proof?

A

(1) Abnormality of mental functioning
(2) from a recognised medical condition
(3) which substantially impaired Ds ability to
(4) understand the nature of their conduct, form rational judgment, or exercise self-control
(5) and this provides an explanation for the killing
BoP: D must prove each element on the balance of probabilities (more likely than not)

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17
Q

What is the test for loss of control for murder and what is the burden of proof?

A

(1) Killing was caused by a loss of control (D couldn’t restrain themselves)
(2) A qualifying trigger caused the loss of control:
- fear of serious violence to them or another
- circumstances of an extremely grave character giving D a justifiable sense of being seriously wronged
(3) (Objective test) Someone of D’s age & sex might have reacted in the same way

BoP: D must prove the elements of loss of control. If the judge is satisfied, Prosecution must prove beyond reasonable doubt that there was no loss of control

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18
Q

Is infidelity covered by loss of control defence?

A

No but infidelity plus taunting is.

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19
Q

If there was no intention to kill or cause GBH, but the victim dies, what offence is this?

A

Involuntary manslaughter

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20
Q

What are the 2 main types of involuntary manslaughter?

A

(1) Unlawful act manslaughter
(2) Gross negligence manslaughter

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21
Q

What is unlawful act manslaughter?

A

D committed a criminal offence that posed an objective risk to the victim, who dies as a result (e.g. high speed car chase)

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22
Q

What is gross negligence manslaughter?

A

D acted in an extremely negligent way breaching their duty of care e.g. anaesthetist not noticing the oxygen tube had fallen out

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23
Q

What is assault?

A

D intentionally or recklessly causes another to apprehend the immediate application of unlawful force. E.g. ‘I’m going to punch you now’

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24
Q

What can negate assault

A

(1) WORDS - If the person says ‘I would hit you but…’ even if their fist is raised. The words negate the threat.
(2) VICTIM UNAWARE - if D swung for the victim and missed and V found out after this is not assault.

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25
Q

What is battery?

A

D unlawfully or recklessly applies unlawful force to another person.
- the contact must be unwanted.

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26
Q

What is a common defence to assault and/or battery

A

Consent (including day to day hustle and bustle)

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27
Q

What are the elements of assault occasioning ABH?

A

(1) all elements of assault
(2) all elements of battery
(3) causation
(4) actual bodily harm (ABH)

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28
Q

Limbs of s.20 wounding or causing GBH

A

(1) intention to cause SOME harm or recklessness regarding harm e.g. it could be just to bruise i.e. the intent of ABH
(2) but the actual harm suffered must be greivous e.g. break both layers of skin or cause long period of unconsciousness.

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29
Q

s.18 wounding or GBH with INTENT

A

Same as s.20 but the mens rea is to cause serious bodily harm OR the intent to resist lawful apprehension.
Recklessness is not sufficient.

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30
Q

Examples of consent to GBH (s.18 or s.20)

A

Surgery, tattoo, circumcision, sports, sex

31
Q

The elements of theft

A

(1) Dishonest
(2) appropriation
(3) of property
(4) belonging to another
(5) with the intention to permanently deprive

32
Q

Would taking a sip of someone else’s coffee count as appropriation?

A

Yes - appropriation covers any of the rights in someone’s property, it doesn’t need to be all of the rights (e.g. taking the full cup)

33
Q

If someone intends to borrow property does this count as theft?

A

No - it must be an intention to permanently deprive

34
Q

If someone steals but then returns the property, is this theft?

A

Yes - there was an intention to permanently deprive at the time.

35
Q

What is the test for dishonesty in theft?

A

Objective only: whether a reasonable and honest person would think that Ds action was dishonest.

36
Q

What is the difference between theft and robbery?

A

Robbery requires all theft elements plus force.
Either D used force to take the property, or put the victim in fear of immediate force so that they could take the property.

37
Q

2 burglary offences:

A

(1) burglary by trespass with intent
(2) burglary by offence following trespassory entry

38
Q

What’s burglary by trespass with intent

A

(1) D enters a building as a trespasser (including e.g. hand through window)
(2) D has the intent to steal, commit GBH or cause criminal damage.

39
Q

What’s burglary by offence following trespassory entry?

A

(1) D enters a building as a trespasser (including e.g. hand through window)
(2) D actually attempts or successfully steals or causes GBH. (Criminal damage purposefully not included)

40
Q

What’s the main difference between ‘burglary by trespass with intent’ vs ‘burglary by offence with intent’

A
  • by trespass = D did trespass but didn’t actually commit the second offence, they just intended to (e.g. they were going to do GBH but didn’t in the end)
  • by offence = D did trespass and complete the offence they intended to do.

by trespass includes criminal damage but by offence does not.

41
Q

What is aggravated burglary

A

Committing a burglary with a weapon of any kind, including something that is adapted or intended to be used as a weapon.

42
Q

3 types of fraud

A

(1) false representation
(2) failure to disclose
(3) abuse of position

43
Q

What is fraud by false representation

A

AR: make a false representation
MR: dishonesty and intention to make a gain, or cause a risk/loss.

Example: using stolen card in cash machine - doesn’t have to be financial gain, could be to pass an exam.

44
Q

What is fraud by failure to disclose

A

AR: omission to divulge information that they have a legal/contractual duty to divulge
MR: make a gain or cause a loss to another.

Example: disclosure in court procedure - omitting to divulge info.

45
Q

Fraud by abuse of position

A

AR: misuse of a position which should safeguard financial interests of others.
MR: intention to make a gain or cause a loss.

Example: banker.

46
Q

Limbs of criminal damage

A

(1) Destroy or damage
(2) Property
(3) belonging to another
(4) with intention or recklessness as to whether it is destroyed or damaged

47
Q

Exceptions to criminal damage

A

(1) Non-physical property
(2) Wild plants and fungi
(3) Consent is given or it is reasonably believed that they would have consented e.g. to stop a fire.

48
Q

How bad does the damage need to be for criminal damage?

A

It can be absolutely minor and easily fixable - still an offence.

49
Q

What is aggravated criminal damage

A

Criminal damage with the intention to endanger life be reckless to the endangerment of life. It doesn’t matter whether or not life was endangered. Can be your own property.

Example: Attempted to cut brakes to die on motorway. Cut wrong wire. No one was actually in danger but the intention was there and property was damaged (even though it was D’s own property)

50
Q

Can the defences for criminal damage be transferred to aggravated criminal damage?

A

No. i.e. consent/reasonable belief of consent does not count because you are endangering life. This is aligned with the idea that you can commit aggravated criminal damage to your own property - if you intend or are reckless that it may endanger the life of another.

51
Q

What is arson and aggravated arson?

A

Arson means criminal damage caused by fire.

If the damage is caused by the smoke rather than the fire then this is just criminal damage (not arson).

The tests for criminal damage and aggravated criminal damage are the same, it’s just that fire was used.

52
Q

If 2 or more people commit an offence, they can both be _________ _________.

A

principal offenders

53
Q

If you are not a principal offender, how else could you be involved in the crime?

A

(AACP)
Aid
Abet
Counsel
Procure

54
Q

What does it mean to aid, abet, counsel or procure an offence

A

Aid = helping
Abet = encouraging
Counsel = advising
Procure = getting someone else to commit the offence

(AACP)

55
Q

What intention is required to be guilty of aiding, abetting, counselling, or procuring an offence?

A

It’s not enough to foresee that the offence may be carried out, D must intend that the principal will commit the offence

56
Q

What is an inchoate offence

A

an ‘attempted’ offence - i.e. incomplete for whatever reason.

57
Q

What is the actus reus for ‘attempting’ an offence

A

doing something ‘more than merely preparatory’ towards its commission.

Remember: atteMPting - More than Preparatory

Example: Buying poison is not enough. This is just prep work. Must buy it and then put it into someone’s drink. This is taking a step to commission the offence.

58
Q

What is the mens rea for ‘attempting’ to commit a crime?

A

Intent to commit the underlying crime - even if it can be committed recklessly.
(Recklessness is rarely sufficient here in reality).

59
Q

If you attempt to commit a crime that is physically or legally impossible, what are the consequences?

A

As suggested by the word ‘attempted’ it probably was impossible in some physical way, therefore this is no defence, regardless of how crazy the plan was. E.g. pick pocketing an empty pocket, or shooting an empty bed believing the victim to be in it.

If the crime was legally impossible (because it isn’t a criminal offence), D cannot be guilty.

60
Q

Can you be found guilty of an attempt to commit an offence, and for completing the same offence?

A

No - if you completed the offence you will be charged as such. You cannot be charged with

61
Q

What is a conspiracy to commit a crime?

A

AR:
Agreement between 2 or more parties to carry out the crime.
Must have capacity, spouses don’t count.
Victim cannot be a conspirator.
MR:
Intent to form an agreement. No need to realise that they were agreeing to commit a crime.

62
Q

Is a conspiracy still committed if it’s conditional?

A

Yes e.g. ‘if the victim fights back we’ll kill her.

63
Q

If the crime at the heart of a conspiracy is factually or legally impossible, is it still a conspiracy?

A

Factually impossible: yes
Legal impossible: no

64
Q

Criminal capacity and defences (acronym)

A

SUN DIVA

Self-defence
Unfit to plead
Necessary

Duress
Involuntary intoxication
Voluntary intoxication
Age

65
Q

At what age does a person become capable of committing a criminal defence?

A

10th birthday

66
Q

When is a person deemed unfit to plead and what are the consequences?

A

If they lack sufficient intellect to:
(1) understand the proceedings enough to make a defence
(2) challenge a juror
(3) understand the details of the evidence

Consequences:
- Hospitalised (required in murder)
- supervision order, or
- case dismissed

67
Q

What’s the difference between voluntary and involuntary intoxication?

A

Voluntary = any drug taken by D.
Involuntary = any drug taken through no fault of their own.

68
Q

What is voluntary intoxication

A

D voluntarily took any drug. Medical or recreational. Even if they were ignorant to what strength it was.

Medical/non-dangerous voluntary intoxication can negate the mens rea element of the offence.

HOWEVER dangerous/recreational voluntary intoxication: can negate the mens rea of specific intent crimes, but not for offences where recklessness is sufficient.

69
Q

Involuntary intoxication

A

This is where the person is intoxicated through no fault of their own.
This can negate the mens rea of an offence.

70
Q

Examples of specific intent offences

A

murder
s. 18 GBH with intent
conspiracy
theft
robbery
burglary

71
Q

Examples of basic intent offences

A

s.20 GBH
ABH
Battery
Assault
Criminal Damage
Arson

72
Q

What are the grounds for self-defence

A

D is defending themselves, another, or property.
MR:
(1) Subjective: D believed that force was immediately required
(2) Objective: the amount of force used was reasonable and proportionate based on the facts D had at the time.
In the case of a burglary - the force must not be grossly disproportionate.

73
Q

What are the grounds for necessity

A

Committing the offence was the lesser of 2 evils.
Avoid inevitable and irreparable evil.
Not disproportionate.
Not available in murder cases.

73
Q

Duress as a defence

A

Threat of death/serious injury against a close relative or friend, good cause for fear, sufficiently immediate, no opportunity to evade, and someone of D’s characteristics would have acted the same way.

Does not apply for murder or where D knowingly associated with a violent person

SQE 2 (10 decks)

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