Criminal Law - Fundamentals Flashcards

1
Q

Everyone involved in criminal proceedings must prepare and conduct cases in accordance with the overriding objective of the Criminal Procedure, which requires that all cases are dealt with justly. This is defined by CrimPR 1.1 as:

A

(a) Acquitting the innocent and convicting the guilty.

(b) Dealing with the prosecution and defence fairly.

(c) Recognising the rights of a defendant, particularly Art. 6 of the ECHR.

(d) Respecting the interests of witnesses, jurors and victims and keeping them informed of the progress of the case.

(e) Dealing with cases efficiently and expeditiously.

(f) Ensuring appropriate information is available to the court when bail and sentence is considered.

(g) Dealing with the case in a way that takes into account:

  • Gravity of offence
  • Complexity of what is in issue.
  • Severity of the consequences to the defendant and others involved.
  • The needs of other cases.

-

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2
Q

Explain the difference between the Legal Burden and Evidential Burden

A

The evidential burden = The defence’s burden of proving that a defence should be put in issue. They merely need to adduce sufficient evidence that the defence is arguable. OR Prosecution’s burden of providing sufficient evidence to prove that the defendant has a case to answer.

The legal burden = The prosecution’s burden of proving all the elements of an offence, beyond reasonable doubt. Exceptionally, this can be the defendant’s burden (“reversed legal burden”) - see next flashcard.

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3
Q

Generally, the legal burden rests on the prosecution, but which defences trigger the reversed legal burden?

A
  • Diminished Responsibility: A partial defence (i.e. it reduces the charge from murder to manslaughter) based upon abnormality of mental functioning.
  • Insanity
  • Some statutory defences.

The defendant must (a) adduce enough evidence to put the defence in issue AND (b) prove the existence of the defence, on the balance of probabilities (NOT beyond reasonable doubt).

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4
Q

What are the two requirements for criminal liability to attach to omissions?

A
  1. The crime was caused by the omission.
  2. There was a duty to act.
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5
Q

Apart from statutory omission, there is also liability under common law. Please list the categories.

A

(a) Contractual duty.

(b) Public Office duty.

(c) Voluntary assumption of responsibility.

  • Case: The defendant took responsibility to care for her elderly aunt. The defendant neglected to feed the aunt and was convicted of manslaughter.

(d) Creation of a dangerous situation.

(e) Special relationship duty. E.g. Parent and child.

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6
Q

Where the actus reus of an offence requires a certain consequence, it is necessary to show causation. What are the two necessary components of causation in criminal law?

A

Factual Causation and Legal Causation. Both are for the jury to decide.

  1. Factual Causation.
  2. Legal Causation.
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7
Q

What is the test for factual causation?

A

“But for” the defendant’s action, would the consequence have occurred?

Case: White poisoned his mum, but she actually died from a different cause. “But for” White’s actions, she would have died anyway. He was acquitted of murder.

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8
Q

What is the test for legal causation?

A

Was the defendant’s conduct a substantial and operating cause of the consequence?

- Need not be the sole cause.

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9
Q

If an unusually weak victim dies from the defendant’s act, can the defendant argue that they did not legally cause their death?

A

No. The “Thin Skull” rule states that the defendant must take the victim as they find them.

Case: Blaue stabbed his victim. The victim was taken to hospital, but refused a life-saving blood transfusion, as she was a Jehovah’s Witness. Held: Thin Skull rule applied and defendant was convicted.

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10
Q

What is the doctrine of “Novus Actus Interveniens” and what are the three types?

A

The chain of causation is broken in such a way that the defendant’s act is no longer the cause. The three types are:

(1) Force majeure (AKA. an “Act of God”). E.g. Natural disaster.

(2) Third Party Acts

(3) Acts/Omissions of the Victim.

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11
Q

Acts of third parties may only break the chain of causation if…

A

The third party’s actions are free, deliberate and informed.

Also, the defendant can still be criminally liable under the legal causation test, if their act substantially contributed to the result.

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12
Q

Acts of the victim may only break the chain of causation if… Conversely, if those actions are…

A

Those actions are “so daft” as to be unforeseeable. Conversely, if those actions are a natural consequence of the defendant’s actions, the chain will not be broken.

Case: A woman was touched by a taximan, and jumped out of a moving car, causing injuries. Held: chain wasn’t broken by her actions. Taximan liable.

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13
Q

The victim was given treatment after gunshot wounds from the defendant. Two months later, he died due to complications arising from medical negligence. Will the defendant be convicted or acquitted?

A

The chain of causation is not broken even if negligent medical treatment is the immediate cause unless it is so independent of the defendant’s actions and so potent that it makes the contribution by the defendant insignificant.

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14
Q

Define “Intention”. What are the two types?

A

A mens rea component for serious offences such as murder and GBH with intent.

The two types of intention are:

(1) Direct Intention - Was it D’s aim or purpose to bring about the result?

(2) Oblique Intention - While it wasn’t D’s aim or purpose to bring about the result, did he foresee that result as a virtually certain consequence of his actions?

  • Intention is interpreted subjectively, i.e. looking into the defendant’s actual state of mind at the time.
  • Intention is unrelated to motive/desire, as we do not need to consider the reasons behind the actions.
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15
Q

Oblique intention is rarely used. The majority of cases are in determining whether a homicide is murder (requiring intent) or manslaughter (requiring only recklessness). What test is used to establish oblique intention?

A

The test applied is the Woolin Test which states:

“The jury is only entitled to find intention where they feel sure that the consequence was a virtual certainty to occur as a result of the defendant’s actions, and the defendant had foreseen that such was the case”.

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16
Q

Define transferred intent.

A

D has the mens rea against one person (or property) but, in targeting that victim, accidentally commits the actus reus against another. The doctrine ensures that D is still liable.

The doctrine only occurs where the mens rea and actus reus are for the same offence.

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17
Q

Define recklessness.

A

Whether D was reckless as to the harm that could be done is a two-part test:

(1) D actually foresaw that the type of harm might be done. (subjective element)

(2) D went on to take that risk unreasonably. (objective element)

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18
Q

What is Strict Liability?

A

Offences in which mens rea is not required for one or more elements of actus reus, by statute.

Some offences (“absolute liability”) require no mens rea at all and there are no defences available, unless the defendant is under the age of 10 (the age of criminal responsibility)

Mens rea is presumed to be required where the statute is silent.

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19
Q

Where legislation does not expressly include corporate liability, what two ways can a corporation be criminally liable?

A
  1. Vicarious Liability - relates to statutory/regulatory offences committed by the employee.
  2. Non-vicarious liability stemming from the “Identification Principle”
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20
Q

How does vicarious liability operate in relation to mens rea of the employee?

A
  • If it is an “absolute liability” offence, vicarious liability attaches and the employer is liable, because mens rea is irrelevant.
  • If the offence requires mens rea, vicarious liability does NOT attach, if it was the employee who allowed the breach to occur, especially if the employer gave instructions against it.
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21
Q

What is the “Identification Principle”?

A

This is the principle that “the acts and states of mind” of those directing a company will be imputed to the company. This is limited to the Directors and potentially other senior officers.

This can cause either individual or corporate liability.

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22
Q

Phil accidentally reverses his car onto a police officer’s foot. When he realised this, he refused to move the car. Is he guilty of asssault? Why/why not?

A

Guilty of assault. Although the actus reus and mens rea did not coincide, they are treated as a “continuing act”.

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23
Q

D hits the victim, intending to kill her. Having believed she was dead, he rolled her off the cliff, which was the actual cause of death. Can D claim he did not have the mens rea at the time of death?

A

No. Although actus reus must coincide with mens rea, the two acts constituted a series of acts to predetermine the result, therefore the mens rea coincided with the actus reus.

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24
Q

What is the difference between specific intent and basic intent?

A

Basic intent offences can be committed recklessly, whereas specific intent can only be committed with intent.

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25
Q

List six specific intent offences.

A
  1. Murder
  2. GBH with intent.
  3. Theft.
  4. Robbery.
  5. Burglary.
  6. Handling stolen goods.
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26
Q

Name six basic intent offences.

A
  1. Manslaughter
  2. Rape
  3. GBH
  4. ABH.
  5. Common Assault.
  6. Criminal Damage.
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27
Q

Can voluntary intoxication be a defence against basic intent or specific intent offences?

Involuntary intoxication, of course, can be a defence to either.

A
  • Voluntary intoxication cannot be a defence for basic intent offences, because the intoxication itself was reckless.
  • It can be a defence against specific intent offences, if the intoxication prevented the formation of the necessary intention.
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28
Q

For the CPS to charge a person, what two tests need to be satisfied?

A
  1. Is there sufficient evidence for there to be a realistic chance of conviction?
  2. If so, is it in the public interest for the person to be charged?
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29
Q

What are the magistrates’s sentencing power limited to?

A

In the Magistrates’ Court, trials tend to be heard by a bench of 3 lay magistrates or a District Judge .

Their sentencing power is limited to a maximum of six months’ imprisonment, or a total of twelve months for two or more offences.

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30
Q

In the Crown Court, what is the trial judge’s sentencing power?

Secondly, who are the Crown Court judges?

A

He has the authority to pass sentences up to and including life imprisonment, although some offences are limited by statute.

There are three types of judges who preside over the Crown Court: High Court judges, Circuit Judges and Recorders (part-time judicial officers).

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31
Q

When is it appropriate for a party to appeal to the Divisional Court?

A

Either the prosecution or defence can appeal to the Divisional Court,by way of “case stated” against decisions from the Magistrates’ Court.

It is appropriate where the Magistrates’ Court misinterpreted a point of law or evidence. It deals with questions of law, not fact (c.f. appeals to the Crown Court).

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32
Q

When is it appropriate to appeal to the Court of Appeal?

A
  • Appeals against Crown Court decisions on convictions and/or sentencing.
  • Appeals on “points of reference” from the AG, on points of law and sentence that are considered too lenient. This can be from the Magistrates’ or Crown Court decisions.
33
Q

What are the two key offences of homicide?

A
  1. Murder
  2. Manslaughter (Voluntary and Involuntary)
34
Q

There are three different situations in which an intervening act will not exonerate D from criminal liability. What are they?

A
  1. Death results from multiple causes, but the defendant’s act was the “operating and substantial cause”.
  2. Natural Consequences of Defendant’s Act.
  3. Victim’s Characteristics: They do not break the chain of causation, due to the “Thin Skull” rule.
35
Q

If the victim tries to escape danger from D’s conduct, and their escape causes death, is D criminally liable?

3 criteria.

A

For the defendant to be guilty in such cases, the following criteria need to be established:

  1. D’s conduct was such that a reasonable and sober person would fear their safety.
  2. The victim’s fear resulted from the defendant’s action.
  3. The escape was a result of the fear.

3 criteria.

36
Q

What are the elements of Murder?

A
  1. Mens Rea: Intention to Kill or Cause Grievous Bodily Harm.
  2. Actus Reus: Unlawful killing of a living person under the King’s peace.
37
Q

Break down the Actus Reus of Murder.

A

Unlawful - Reasonable force in self-defence will not be murder.

Killing - Death must result. This includes acceleration of victim’s death. But note that doctors may practice legitimate pain management, while incidentally shortening life.

Living Person - A foetus is not a living person.

In the King’s Peace - Not in times of war.

38
Q

Break down the Mens Rea of Murder.

A
  • Intention to kill.
  • Intention to cause Grievous Bodily harm.

Further, the Woolin direction may apply: The jury may find that such intention is established if death of GBH is a virtually certain consequence of their act, and D foresaw this to be the case.

If intention is not found, the alternative is manslaughter.

39
Q

What are the three partial defences to murder?

A

Partial defences are those which reduce the conviction from murder to voluntary manslaughter. They are:

  1. Loss of control
  2. Diminished Responsibility
  3. Killing in pursuance of a suicide pact.

Note: It is “voluntary” manslaughter when all the components of murder are made out, but one of the defences above apply.

40
Q

What is the difference in sentencing between manslaughter and murder?

A

Life imprisonment is the minimum sentence for murder, whereas it is the maximum for manslaughter.

41
Q

What three elements need to be established for the defence of loss of control?

The relevant statutory provisions are s.54 - 56 of the Coroners and Justice Act 2009.

A
  1. There was a qualifying trigger.
  2. The qualifying trigger resulted in the defendant losing their control.
  3. A person of the defendant’s age and sex, with a normal degree of tolerance and self-restraint would have acted as the defendant did.
42
Q

D was abused over a long period of time and after a seemingly trivial act from V, she loses her control and kills V. Can loss of control be used as a defence in this case?

A
  • Yes. Suddenness is not required for loss of control.
  • The judge must, however, determine whether the length of time is so substantial as to render the defence unsound.
43
Q

Individuals who act in ____ are precluded from the defence of loss of control.

A

Individuals who act in a measured desire for revenge are precluded from the defence of loss of control.

44
Q

How does the defendant discharge the evidential burden for the defence of loss of control?

A

The defendant must adduce sufficient evidence to put the defence in issue.

Sufficient evidence is adduced where, in the opinion of the judge, a properly directed jury could reasonably conclude that the defence might apply.

45
Q

What are the three qualifying triggers? (s.55)

A
  1. D’s fear of serious violence: The defendant must prove that they honestly feared that the victim (not anyone else) would use serious violence, whether or not that fear was reasonable.
  2. Things said or done.
    - of extremely grave character
    - caused D to have a justifiable sense of being wronged.
  3. Combined Qualifying Triggers.
    Fear of serious violence and the provocative conduct collectively caused the loss of control.
46
Q

Section 55(6) precludes sexual infidelity as a qualifying trigger for loss of control. That being the case, when and how can sexual infidelity be considered in relation to loss of control?

A

Where sexual infidelity is integral to, and forms an essential part of the context, it can be considered under the “things said or done” trigger.

It may also be taken into account in considering the third component of the defence: “Whether a person of the defendant’s sex, age, tolerance etc. would have reacted in a similar way.”

47
Q

Loss of control is also subject to the third objective element about the defendant’s characteristics and circumstances. If a defendant is particularly short-tempered, would they be able to rely on this characteristic? Explain.

A

No. The defendant’s circumstances does not include the circumstances that bear on his tolerance and self-restraint.

48
Q

What are the 3 elements of the Diminished Responsibility defence?

A
  1. Abnormality of mental functioning, arising from a recognised medical condition.
  2. The abnormality substantially impaired at least one of the following abilities:
    (a) Understand the nature of their conduct
    (b) Form a rational judgement.
    (c) Exercise self-control.
  3. The abnormality caused or significantly contributed to V’s death.
49
Q

Who bears the legal burden in the case of diminished responsibility?

A
  • Diminished responsibility is a rare instance of “reversed legal burden”, where the defendant bears both the evidential and the legal burden.
  • The defendant is required to prove the defence, on the balance of probabilities. This must be medically-supported.
  • The prosecution can call its own expert evidence to rebut that of the defendant’s.
  • The jury decides whether they accept the defendant’s evidence.
50
Q

All the elements of diminished responsibility are decided by the jury. What considerations must the judge take into account in relation to the definition of “substantially impaired”?

(2 bullet points)

A
  • The trial judge should not ordinarily define the meaning of “substantially”.
  • ## If the jury asks for guidance as to “substantially impaired”, the judge should explain that “merely trivial” impairment would clearly be insufficient, but beyond that it is up to the jury to decide.
51
Q

The two key categories of involuntary manslaughter are…

A
  • Unlawful Act Manslaughter
  • Gross Negligence Manslaughter

There are others, but these are the ones specified by the SRA.

52
Q

What are the three elements of Unlawful Act Manslaughter?

A
  1. D committed an unlawful act: it cannot be by omission;
  2. The act was dangerous; and
  3. The act caused V’s death.
53
Q

What is the test for dangerousness?

A

Whether the reasonable person would recognise a risk of some harm, based upon the knowledge the defendant had, or should have had at the time.

54
Q

The defendant supplied the victim with illegal drugs. The victim injected himself and died. Will the defendant be guilty?

A

No. The chain of causation is broken where the victim freely and voluntarily injected himself.

55
Q

What is the required mens rea of unlawful act manslaughter?

A

The mens rea of the unlawful act.

56
Q

For a conviction of Gross Negligence Manslaughter, what are the four conditions?

A
  1. The defendant owed a duty of care to the victim.
  2. The defendant breached that duty.
  3. The breach caused the victim’s death.
  4. A reasonably prudent person would have foreseen a serious and obvious risk of death (gross negligence).

Must be a duty of care established by law. If not clear, judge needs to decide.

Serious or even very serious mistakes are unlikely to be sufficient. The accused behaviour must be exceptionally bad as to become criminal.

57
Q

Assault

What are the five types of assault in order of severity (lowest severity first)

A
  1. Assault
  2. Battery
  3. Assault occasioning actual bodily harm (s.47)
  4. Malicious wounding or inflicting grievous bodily harm (s.20)
  5. Wounding or Causing Grievous Bodily Harm with Intent (s.18).
58
Q

What are the two common law assaults?

A
  • Assault
  • Battery
59
Q

What are the MR and AR of simple assault?

A

MR: Intention or recklessness as to causing the victim to apprehend immediate and unlawful personal force.

AR: Causing the victim to apprehend immediate and unlawful personal force.

60
Q

The defendant says to the victim “I’ll be around next week to give you a kicking”. Is this assault? Explain.

A

No. The victim must apprehend immediate and unlawful personal violence. However, it would be enough if the victim were to fear that force could occur immediately.

61
Q

Battery

What is the MR and AR of battery?

A

MR: Intentionally or recklessly inflicting unlawful force.
AR: Inflicting unlawful personal force.

Need not be bodily contact e.g. could be throwing an object or setting their dog loose on the victim.

62
Q

Explain the mens rea “recklessness” element further.

A

The defendant must have foreseen the actual infliction of force, not just the victim’s apprehension of it.

63
Q

Assault Occasioning Actual Bodily Harm (s.47 OAPA)

Is ABH a summary, either-way or indictable-only offence? What is the maximum sentence?

A

Either-way. Maximum sentence of five years imprisonment.

64
Q

What are the MR and AR of ABH?

A

MR: Same as assault or battery: Intention/recklessness as to causing the victim to apprehend immediate and unlawful personal force (assault) or inflicting unlawful force.

AR: Assault or battery that causes actual bodily harm.

For the MR, need not show that the defendant intended to cause actual bodily harm.

65
Q

What is the definition of actual bodily harm?

A
  • Any injury which interferes with the health/comfort of the victim;
  • Must be more than transient or trifling.
  • Can include psychiatric harm.

Medical evidence would be required for mental harm. Must be recognisable clinical condition.

66
Q

Wounding or inflicting GBH (s.20 OAPA)

Are wounding/GBH summary, either-way or indictable only offences? What is the maximum sentence?

A

Either-way offence. 5 years imprisonment is the maximum sentence.

67
Q

Wounding or inflicting GBH (s.20 OAPA)

What are the MR and AR of GBH?

A

MR: Intention/Recklessness as to causing ABH

AR: GBH - Really serious harm.
Wounding - Cutting of both layers of the skin.

68
Q

How is “really serious harm” defined?

A

By whatever the magistrates/jury regard as serious enough, taking account the effects of the injuries of the particular victim.

69
Q

How is wounding defined?

A

Breaking of both layers of the skin resulting in bleeding.

Oddly, a minor cut would therefore be sufficient, but not bruising or internal bleeding.

70
Q

Wounding or GBH with intent (s.18 OAPA)

Is Wounding/GBH with intent a summary, either-way or indictable-only offence? What is the maximum sentence?

A

Indictable-only. Maximum sentence of life imprisonment.

71
Q

What are the MR and AR of Wounding or GBH with intent?

A

MR: a) intent to cause GBH or
b) intent to resist/prevent lawful apprehension or detention of any person, coupled with the intention/recklessness as to causing some harm.

AR: Same as for s.20.

72
Q

John is called to attent a fight outside a pub. He tells Tracey that he is arresting her for a public order offence. Tracy lashes out at him in an attempt to escape, causing a deep scratch to John’s face, which draws blood.

A

MR: Intention to resist arrest. While she did not intend some bodily harm, she was reckless as to it as she foresaw that some harm would be caused.

73
Q

Consent as a defence

What is the position regarding consent to simple assault and battery?

A

Consent can be a defence.

Common sense approach - e.g. public transport.

74
Q

For statutory assaults, what is the general rule about consent?

A

The general rule is that consent is not available as a defence to any assault where harm is intended or caused.

75
Q

What are the exceptions to the general rule that consent is not a defence to statutory assaults?

4 exceptions

A
  • Surgery
  • Dangerous exhibitions
  • Sport (provided it is properly conducted).
  • Piercings and tattooing.
76
Q

Consent as a defence

What are the two limits to the exceptions?

A
  • Sado-masochism
  • Body modification
77
Q

Consent is only valid if…

A

…freely given by a fully informed and competent adult.

78
Q

Consent is not valid if….

A

…obtained by fraud as to:

  • the identity of the defendant; or
  • Nature and quality of the act.