Criminal Law First Term Flashcards
What is the ratio of R v G and what does it show?
As long as MR is present and B is under 13, reasonable belief in her being older is no excuse. Shows strict liability.
R v B
Husband stranger
Which case asserts that Olugboja made a fresh start?
R v Elbekkay
What is the issue with R v McNechnie?
V may have died at the same time in the same way regardless, but the court made a lot of assumptions to arrive at their judgment
What is the ratio in Booth v CPS?
Borderline decision of assuming one state of mind from another
How does S.2 Genital Mutilation Act 2003 restrict novus actus?
Defence so that anyone who uses novus actus to get someone to mutilate themselves is still liable
What is the ratio in Gillick v West Norfolk and Wisbeck AHA?
Sufficient maturity to consent despite being under the age of 16
R v Richardson
Alcoholic dentist
Russell [1933]
Wife and child
What do Sullivan and Simester note is perhaps the reason for adopting a causation-without-limits approach in cases like Williams?
To deter all unlicensed/unregistered drivers, but this is at the expense of severe injustice
What does Williams note about knowledge in Cunningham?
Knowledge of inflammability of coal gas does not lead to an assumption about its toxicity as they cause injury in different ways
What does Williams note about subjective recklessness and preoccupation?
It cannot be defeated by an argument from preoccupation, and can be assumed.
Smith v Newsam
Sword
What else does Horder use apart from suspensory conditions to suggest there is no need for an imminence requirement?
Thomas v Num –> Miners
What did the HoL note in R v Ireland about psychological harm and s.47 OAP?
The statute is ‘always speaking’ as it loosely defined in ordinary words to get meaning from current society
What is the MR of s.47 OAP incompatible with?
Correspondence principle
What was the ratio in R v Dica?
STDs can be considered to cause GBH despite consent
Since consent nullifies AR of assault/battery, and s.47 requires this, does consent nullify s.47?
No
What is the ratio in Attorney General’s reference (No.6 of 1980)?
Consent to assault does not nullify liability
R v Jones
Boy in air
What case with higher authority supports the crown court decision in R v Slingsby?
R v Jones and R v Dica
As there is no provision for reasonable belief under s.47, what position does the law revert to to ascertain if D believed V gave informed consent?
Subjectivist position
When did Lord Jouncey and Lowry in Brown argue that consent becomes immaterial?
When it becomes AoABH or gave objectively a realistic risk of more than trivial harm
What act prohibits the case for a good enough reason for consent to s.47 or s.20 in terms of circumcision, limiting it to only men?
Female Genital Mutilation Act 2003, s.1
What is covered under s.47 OAP?
Assault occasioning ABH
What does Williams say about the argument of not thinking of a risk?
If someone does not believe a risk exists, and it is unreasonable for him to take it, he is still liable because he still thought of it
Kaitamiki v R
Rape is a continuing act
R v Devonald
Dad, ex-bf
R v McNally
‘Boy’ is girl
What are the recent cases in which the CoA have follow decisions prior to R v Olugboja?
R v Larter & Castleton, R v Elbekkay and R v Linekar
What case defines ‘unlawful’ in battery?
Collins v Wilcock
What does s.20 OAP govern for?
Inflicting GBH maliciously
What is the ratio in R v Bollom?
GBH on a child may not be GBH on an adult
How did the CPS deal with the fact that it is arguable if recklessness counts if the risk of harm is less than 0.1% (Dica)?
Increased number of exposures to a low risk infection increases level of recklessness
R v Harris
Voices fire
What case/judge gives the definition of the AR for s.47 OAP?
Lynsky J in R v Miller
What is the AR of s.20 OAP?
Any act that causes ‘really serious’ bodily harm (DPP v Smith), applying to psychiatric illnesses like s.47, but unlike s.47 it need not be caused by an assault/battery - need only be ‘inflicted’ which is much wider
What is the MR for s.20 OAP?
D must have intended/been reckless as to causing ‘some harm’ but need not have foreseen the full consequences. Malicious should be interpreted as referring to both intention and recklessness
R v Bree
B must have the ability to express agreement or disagreement through the act
What is the AR for s.5 SOA?
Penetration of a person under 13
What is the ratio in R v Kennedy?
Fully informed act of V broke chain of causation
What is an example of a corresponding MR requirement?
Recklessness creating foreseeable risk of ‘some harm’ to V
What was the ratio in R v Konkani?
Consent can be accepted if V had a particularly good reason to suspect or consents and knows the risk
R v Brown
Sadomasochists
Attorney General’s reference (No.6 of 1980)
Football teams (fight)
What is the ratio in H v CPS?
Knowledge of the risk is not sufficient for consent
What does John Gardner argue is of intrinsic moral significance in assault?
That one inflicted rather than caused harm
Who found, through Environmental Agency v Empress Car Company (Abertillery) Ltd, that causation findings are becoming exercises of statutory interpretation?
Sullivan and Simester
Which case overrules R v Devonald and how?
R v B - not ANY important purpose hidden.
What is a gateway wrong of constructive liability according to Ashworth?
Corresponding MR requirement (recklessness creating foreseeable risk of ‘some harm’ to V)
What does J R Spencer note about the issue of SOA in ‘The Sexual Offences Act 2003: Child and family offences’?
Home Office wanted new offences to be punishable regardless of consent, but no provision that express nullifies consent
What is the defence to s.3 SOA?
Reasonable belief
What does subsection 2 of s.1-4 SOA govern for?
How to determine reasonable belief
R v Jheeta
Policeman boyfriend texts
R v Dica
HIV and unprotected
When is it beneficial, according to Gardner, to draw a line between reluctant acquiescence and mere submission?
When V is insensible with no other safeguard as to consent - lack of any ‘positive state of mind at all’ cannot count as giving consent regardless
Why, according to Ashworth, is a substantive doctrine of intoxication preferable to an evidential doctrine?
Evidential inference can lead to variant outcomes, and it gives transparency
What was the ratio in R v Emmett?
One could not consent to lighter fluid on their body if it resulted in a claim under s.47 or even s.20
R v Burstow
Stalker posters
What four cases define the AR of battery?
DPP v K, Fagan v Metropolitan Police Commissioner, R v Matin, DPP v Santana-Bermudez and Faulkner v Tabot
How can one rebut some of the presumptions of 75(2)?
Existence of a close relationship
What is the AR for assault?
Any act by which one person causes another to apprehend immediate ad non-consensual bodily contact (Ireland)
What is the ratio in DPP v Majewski?
Voluntary intoxication is not a defence to mens rea
Dalloway
Reins
What did Finch and Munro note about s.74 definition in ‘Breaking Boundaries: Sexual consent in the jury room’?
Hindered by stereotypical views, vagueness of central terms, extended to often unrelated factors and led to leniency for D
What case supports the MR for assault?
R v Lamb
Why does it not fit with Olugboja that the judge in R v Elbekkay decided jury could not have failed to conclude lack of consent?
Asserts types of mistake which do/don’t negate consent
What case supports the role of transferred malice in battery?
Haystead v Chief Constable of Derbyshire
What judge noted that you cannot give a common sense answer to the application of causation?
Lord Hoffman in Empress
What is the AR for s.1 SOA?
Penetration and B does not consent to the penetration
What does The Interpretation Act 1978 s.6 provide for?
In all AoP, the use of the masculine noun includes the feminine unless the contrary intention appears
What is the ratio for R v Jheeta?
Look at individual when deciding between submission and reluctant acquiescence
R v Allen
No intention to be drunk
What is the MR of s.47 OAP an example of?
Constructive liability
What part of the SOA governs for the definition of ‘sexual’?
S.78
What is the de minimis principle?
‘more than negligible cause of death’
What is a negative of the rival, fixed-formula approach to rape?
Treats some mistakes as significant to ALL individuals when this may not be true
DPP v K
Acid chemistry
What is Horder’s definition of assault?
‘Threatening confrontation experienced by the victim’
Faulkner v Tabot
Babysitter - touching does not require you to be active
Who found a high level of correspondence in relation to factors that influenced decision making (e.g. victim responsibility, defendant’s intentions, parties’ intoxication and impact of intoxication)?
Finch and Munro, ‘Juror Stereotypes and Blame Attribution in Rape Cases Involving Intoxicants’
What are the three positives of the Olugboja approach according to Gardner?
Attentiveness to individual, D’s MR requires lack of care about consent so may not lack certainty (by referring to V’s state of mind) and decides from impact on V if they acquiesced or submitted
R v Pagett
Shot girlfriend
R v Bailey
insulin
What did Lord Bingham note about D’s presence in court in Cunningham?
D’s presence when the issue is one of knowledge is vital - no evidence of ‘absence of knowledge’ creates an evidential presumption of the knowledge
What case defines the AR for assault?
R v Lamb
What is the ratio for R v Roberts?
Within range of reasonable responses so no contributory negligence
What does Horder note is the advantage of his definition of assault over Williams’ and Gardner’s?
Notes the moral significance of the AR
What do Sullivan and Simester note about the application of Dalloway, and why?
It should have been applied in Williams because ‘such a Draconian outcome’ as expecting D to take account of ‘potential homicide liability for deaths which were the sole responsibility of others… is not within the scope of anyone’s reasonable expectations’
What does section 30 of the SOA govern for?
Sexual activity with a person with a mental disorder impeding choice
What does Horder say about ‘suspensory conditions’?
They are usually not ‘defeating conditions’, so they should not be blocked by an imminence requirement
Why does R v Linekar not align with Olugboja?
Asserted some kind of mistakes do negate consent and others do not as a matter of law
Name at least three cases where consent was allowed to s. 47?
R v Slingsby, R v Jones, R v Dica, R v Konzani
What is the ratio for R v Olugboja?
Absence of force/threats of violence does not prove consent
What test does the Law Commission give for ‘sub-rational’ agreement cases?
Fixing transition point between allowing sexual expression and preventing exploitation by having regard to V’s ability to understand or retain relevant information and make a decision
What is the MR for s.3 SOA?
Intentionally touches another person
R v Malone
Drunk neighbour
Whitte
Mistaken belief
What does Ashworth in ‘Intoxication is never a defence’ note about the formation of the doctrine?
It is not evidential as there is no MR (presumed), so it is substantive as D would have had MR but for intoxication
What three individuals try to give a definition to assault?
Williams, Gardner and Horder
What was the ratio in R v Golding?
GBH needs not be ‘permanent or dangerous’ with ‘lasting consequences’ - it is up to the jury to decide the effect on V in the individual case
What is the ratio for R v Mallet (egg shell skull rule)?
Unlikeliness without subsequent intervention gives liability
What is the evaluative causation question to be asked?
Is there a direct intervening cause (novus actus interveniens) that cannot be explained by proximity?
What cases give that failure to resist does not constitute consent?
R v Malone, MC v Bulgaria
What does Ashworth note about the exclusion of specific intent offences from the intoxication doctrine?
It is a ‘simple move that allows for increased flexibility, and moral sensitivity’.
What precedent gives that rape is a continuing act?
Kaitamiki v R
What does section 5 of the SOA govern for?
Rape of a child
Name at least three cases which support the fact that there is no notion of contributory negligence?
R v Roberts, R v Lewis, R v McNechnie, R v Pagett and R v Hughes
What is the ratio in R v Fotheringham?
D cannot rely on a belief caused by intoxication
In what cases did the courts show that consent to the assault/battery does not preclude liability under s.47?
AG’s reference (No.6 of 1980) and R v Brown
How does the Law Commission suggest we fix a transition point for ‘sub-rational’ agreement cases?
Have regard to V’s ability to understand or retain relevant information and make a decision
What section of SOA dictates requirements for sexual activity with a child?
Section 9
What is the ratio for R v Jheeta?
None of the deceptions affected the act itself
What are the four possible defences to s.47 OAP?
Consent, self-defence, duress and insanity
What is the MR of s.9 SOA?
Intentionally touches another person
R v Cheshire
Breathing tube infection
What are the four possible defences to s.20 OAP?
Self-defence, duress, insanity and consent
Fagan v Metropolitan Police Commissioner
Policeman’s foot
What is the ratio in Collins v Wilcock?
You cannot continue with everyday touching if they object strongly
What two other issues did J R Spencer find with the new child sex offences in the SOA in his article?
They are complex/obscure with serious overlap and it is legislative overkill
Who doesn’t Williams agree with on the top of anger making an exception to subjective recklessness?
Lord Ziplock in Caldwell who extends it to other emotions such as excitement
What case supports the first way to prove recklessness according to G v R (D took an objectively unreasonable risk)?
Chief Constable of Avon v Shimmen –> Martial arts
Haystead v Chief Constable of Derbyshire
Wife and baby
What does s.9(2) govern for?
Types of touching liable for sexual activity with a child
Does a novus actus interveniens count even if it was foreseeable?
Yes
What does s.74 SOA govern for?
Consent
Booth v CPS
Damaging car
R v D
Wife suicide
What is the ration in R v Harris?
D didn’t have sufficient MR, but could also distinguish from Parker in that he had no choice due to his mental illness, drawing a comparison with Jones v First Tier Tribunal and Criminal Injuries Compensation Authority.
What are the four key cases for deciding a freedom to agree?
R v C, R v Jhetta, R v Kirk and R v Olugboja
What does section 4 of the SOA govern for?
Causing sexual activity without consent
What is the ratio in R v Roberts, in reference to s.47 OAP MR?
Foresaw original assault so guilty of ABH
R v Satnam and Kewell
Hope
Collins v Wilcock
Everyday touching
Why did the EU reverse the decision in MC v Bulgaria?
Fundamental that consent is expressed
R v Slingsby
Signet ring
R v Green
Doctor masturbate
What cases shows most effectively the interplay between s.74 and s.76?
Thomas LJ in Assange v Swedish Prosecution Authority
What is the key case for recklessness in non-fatal offences?
G v R
R v Spratt
Air rifle
R v Golding
Herpes
R v B
Schizophrenic
Which case rejects the fact that Olugboja made a fresh start?
R v Linekar
What section gives deceptions in the SOA?
S.76
What are the two basic offences against the person?
Battery and assault
What does the judgment in Olugboja focus on?
Protecting sexual autonomy
What section of the SOA governs for consent?
S.74