criminal law, part b Flashcards
defendant
the person who committed the crime
prosecution
the state bringing the case to court
actus reas
guilty act
mens reas
guilty mind
omission
failure to act
causation
the cause and effect of the event or action of a crime, and the result causing harm or damage
thin skull rule
concept under causation: the defendant must take them as they find them, if the victim has something unusual about their physical or mental state, they may make the injury worse
chain of causation
must be a direct link from the defendants conduct to the consequence. if the chain breaks, there could be a “new intervening act”
act of a third party
medical treatment unlikely to break the chain. the intervening act must make the defendants actions insignificant
causation in law
defendant can be guilty even though his conduct was not the only cause of the consequence
causation in fact
the actual evidence or facts of the case that prove a party is at fault for causing the other persons harm, damages or losses
chain of causation
must be a direct link from the defendants conduct to the consequence. if the chain breaks, there could be a “new intervening act”
victims own act
if the defendant causes the victim to react in a foreseeable way then any injury to the victim will be caused by the defendant. if the victims reaction is unreasonable, it may break the chain of causation
highest form of mens rea
intention
direct intent
the defendant desires a specific outcome, set out to achieve a particular result, hardest to prove
oblique intent
the outcome was not the defendants desire BUT the jury can “infer intention”
lower form of mens rea
recklessness
recklessness
covers situations where the defendant has taken an unjustified risk. a subjective test (based on what the defendant was thinking) not as serious as intent
transferred malice
the mens rea can be transferred to another
contemporaneity rule
defendant must have actus reas and mens rea at the same time, continuing act
cases for statutory duty (1)
dangerous dogs act 1991
cases for act of third party (3)
r v jordan, r v cheshire, r v malcherek
cases for victims own act (2)
r v williams, r v roberts
cases for the mens rea- intention, direct (1)
r v mohan
cases for the mens rea- oblique, (2)
r v woollin, r v nedrick
cases for recklessness (1)
r v cunningham
cases for transferred malice (1)
r v latimer
cases for contemporaneity rule (2)
r v fagan, thabo meli v r
assault and battery
criminal justice act 1988
section 47 (2)
-assault occasioning actual bodily harm
-any hurt or injury that interferes with the health and comfort of the victim
section 20
malicious wound or inflict (cause) GBH (no intention)
section 18
malicious wound or inflict GBH with intent
assault
the defendant must intentionally or subjectively recklessly put or seek to put another person in fear of apprehending immediate unlawful personal violence
fear of violence
act or words must cause the victim to fear that immediate force is going to be used against them
cases for fear of violence (5)
r v smith, r v ireland, r v ireland, r v lamb, tuberville v savage
mens rea of assault
either 1) intention to cause (direct, r v mohan, desired consequence) another to fear immediate unlawful personal violence/seeking to put in fear OR 2) recklessness (r v cunningham) as to whether such fear is caused. subjective test- the defendant must realise the risk of his actions/words could cause another to fear unlawful personal violence
battery
defendant directly intended (r v mohan) or subjectively recklessly applies unlawful force to another (r v cunningham, unjustified risk) must be some force, slightest touch
battery cases (5)
DPP v K, r v haystead, DPP v santa- bermudez, collins v wilcock, r v Thomas
section 47
assault occasioning actual bodily harm (ABH)
section 47: actus reus
an assault and/or battery that occasions actual bodily harm
section 47: mens rea
intention (r v mohan) or recklessness (r v cunningham) as to the assult and/or battery
actual bodily harm
any hurt or injury calculated to interfere with the health or comfort of the victim. covers: bruises, scratches, broken bones. may also include psychiatric injury- but not mere distress or panic. doesn’t have to intend
section 47: actus reas cases (3)
r v smith, r v chan-fook, t v dpp
section 47: mens rea
defendant must intend (r v mohan) or be subjectively reckless (r v cunningham) as to whether the victim fears or is subjected to unlawful force (battery)
section 47: mens rea cases (2)
r v savage, r v roberts
two offences which involve wounding or GBH
section 20 and section 18 offences against person act 1861. actus reas same for both offences- only mens rea is different
case for “inflict” and “cause” meaning the same thing (evaluation) case
r v burstow
actus reas: section 20 and section 18, wound and GBH definitions
wound: cut or break in the skin- internal bleeding not specific
GBH: serious harm- does not have to be life-threatening (hospitalised)
actus reas, section 20 and section 18, wound cases (1)
r v eisenhower
men’s rea, section 20 and section 18, GBH cases (4)
r v dica, r v golding, r v bollom, r v brown and stratton
men’s rea section 20
defendant must intent to cause another person some harm or be subjectively reckless as to whether he suffers some harm. no need for defendant to foresee serious injury but must realise the risk of some injury
men’s rea section 20 cases (1)
r v parmenter
mens rea section 18 (2)
- defendant must intend to do some GBH
- oblique intent applies to section 18: so if that act that the def does is virtually certain to cause GBH and the defendant REALISES this, this is evidence that the defendant had a mens rea for section 18
resist or prevent the lawful apprehension or detainer of any person case (1)
r v morrison
defence of consent (4)
-where the victim agrees to suffer an injury
-a defence to some,less serious,non-fatal offences
-consent is not a defence, in legal terms
-the other person consents to being touched-there is no battery and no unlawful force
defence of consent means the actus reas is not present case
r v donovan
what are the 3 key rules when consent is never allowed
- never available to murder for section 18
- consent is never available to sado-masochisnic acts (pain for pleasure)
-consent is never available to street fighting
consent is never available to street fighting case
AGs Ref No. 6
consent to minor injuries (2)
-always allowed for a battery
-only allowed for sec 47 or sec 20 if one of the exceptions apply
5 expections to consent to minor injuries
-properly conducted sports and games
-surgery
-piercings and tattoos
-dangerous exhibitions eg. boxing, cage fighting
-horseplay (messing around)
implied consent (2)
- some situations where consent is implied by the courts
- minor touching: these are everyday situations where there is a crowd of people and it is impossible not to have some contact
defence of consent cases (8)
r v wilson, wilson v pringle, r v jones, r v barnes, r v slingsby, r v tabassum, r v olugboja, r v burrell and harmer
when is self-defence used? (3)
-defendant admits to committing the actus reas with the necessary mens rea, but says it was self-defence
-defendant can use force which is reasonable in the circumstances
-defendant can defend himself, another or his property
common law is now clarified in?
section 76 Criminal Justice and Immigration Act 2008: declares the section is not intended to change the law, but to clarify it
self-defence: force
“such force as its reasonable in the circumstances as he genuinely believes them to be in the defence of himself or another
definition of reasonable force
degree of force must be reasonable and not disproportionate
doing what the person honestly and instinctively thought was necessary for a legitimate purpose
case for reasonable force (1)
r v hussain
definition of force must be necessary
necessity of force- subjective based on defendants honest, genuine belief as to the facts
case for force must be necessary
r v gladstone williams
force used must be reasonable: what do the jury have to decide? (2)
-what is reasonable? (subjective test)
-no characteristics are taken into account
cases for force used must be reasonable (2)
r v martin, r v clegg
what does sec 76(5A) state? (4)
-in a householder case, degree of force will not be regarded as reasonable, only where it was ‘grossly disproportionate’
1. force must be used by defendant while in or partly in a building that is a dwelling
2. defendant must not be a trespasser
3. defendant must have believed that victim was a trespasser
householder case (1)
collins v secretary of state
section 76 cjia 2008 (2)
- degree of force used must be reasonable not disproportionate/excessive (r v martin) (r v clegg)
- doing what the person honestly and instinctively thought was necessary for a legitimate purpose
section 76(3) cjia 2008
defendant is judged on the facts as he/she genuinely believed them to be (r v gladstone williams) no characteristics can be taken into account (r v martin)
section 76(6)(a)
defendant is not under a duty to retreat when acting for a legitimate purpose. the possibility the defendant could have retreated is considered when deciding whether the degree of force used was reasonable (r v bird)
section 76(5) cjia 2008
if mistake is made because defendant is intoxicated, then he/she cannot relay in this mistake
defence of intoxication (4)
- intoxication by alcohol or drugs
- relevant as whether the defendant has the mens rea of the offence
- not have the mens rea due to intoxicated state he may not be guilty
- partial defence
whether the defendant is guilty or not depends on 2 things: (intoxication)
1) whether the intoxication was voluntary or involuntary
2) whether the offence charged is one of specific or basic intent
specific intent offences
those which require specific intention for their mens rea (theft, robbery, burglary or sec 18)
basic intent offences
those which recklessness is sufficient for the mens rea (sec 47/20, assault/battery)
voluntary intoxication
only available for specific intent offences-if the mens rea is negated
voluntary intoxication case
r v sheerhan and moore
voluntary intoxication, mens rea is not negated case
r v gallagher
voluntary intoxication is never a defence to basic intent crimes case
r v majewski
involuntary intoxication (2)
-covers situations where the defendant did not know he was taking an intoxicated substance
-also covers where prescribed drugs have an unexpected effect of making defendant intoxicated
what is the TEST for intoxication
did the defendant have the necessary mens rea
involuntary intoxication is a defence to all crimes but mens rea must be negated case
r v kingston
involuntary intoxication covers both specific and basic intent crimes case
r v hardie
what is the defence of insanity based on (4)
-case of M’Naughten (1843)
-suffered from extreme paranoia
-thought he was being persecuted by the tories. he tried to kill a member of parliament but killed his secretary instead
-due to his mental state he was found not guilty of murder, and instead got taken to a mental hospital
what are the 3 elements in insanity that need to be considered
- a defect of reason
- must be the result of a disease of the mind
-this causes the defendant not to know the nature and quality of his act or not to know that what he was doing was wrong
insanity: burden of proof
burden of providing insanity is on the defence, who must prove it on the balance of probabilities. where a defendant is found to be insane the verdict is, ‘not guilty by reason of insanity.’
insanity: defect of reason (2)
- defendants powers of reasoning must be impaired
- if defendant is capable of reasoning, but has failed to use those powers, then this is not a defect of reason
insanity: defect of reason case
r v clarke
insanity: disease of the mind (2)
-defect of reason must be due to disease of the mind
-legal term, not medical
insanity: disease can be mental or physical case
r v kemp
insanity: epilepsy does come under insanity case
r v sullivan
insanity: sleep-walking within the legal defence of insanity case
r v burgess
insanity: defendant cannot use defence defence of insanity due to voluntary intoxication and causing a psychiatric episode case
r v coley
hypoglycaemia
low blood sugar, taken insulin-not eaten =insane automatism
hyperglycaemia
high blood sugar, not taken insulin = insanity
diabetes cases (2)
- r v quick
- r v hennessy
not knowing that nature and quality of the act or not knowing that it is wrong (4)
-nature and quality refers to the physical character of the act
-2 ways in which the defendant may not know the nature and quality of the act
- because he is in a state of unconsciousness or impaired unconsciousness
- or where he is conscious but due to his mental condition he does not understand or know what he is doing wrong
insanity: defendant must ejther not know the nature and quality of their act case
r v windle
special verdict (4)
- when a defendant successfully proves insanity, then the jury must return a verdict of ‘not guilty by reason of insanity.’
-up till 1991 the judge then just had to send the defendant to a mental hospital, regardless of the cause of the insanity or the offence committed - not suitable for cases where the defendant suffered from diabetes, epilepsy or hardening of the arteries
- in the criminal procedure (insanity or unfitness to plea) act 1991 was passed to extend the options for the judge
leading case of automatism
bratty
insane automatism
where the cause of the automatism is a disease of the mind within the McNaughten rules-defence will be insanity and the verdict not guilty by reason of insanity (external factor, trigger, disease of the mind)
non-insane automatism, case and examples (5)
defence because actus reas done by defendant is not voluntary. the defendant does also not have required mens rea for the offence. (hill v baxter) examples: 1. a blow to the head 2. an attack by swarm of bees 3. sneezing 4. hypnotism 5. the effect of a drug
automatism: exceptional stress can be an external factor
r v t
automatism: reduced or partial control of one’s actions is not sufficient to constitute non-insane automatism
AG’s Ref No 2
self induced automatism
defendant knows that his conduct is likely to bring on an automatistic state eg. diabetic failing to eat after taking insulin
self induced automatism case
r v bailey
murder
killing someone with intention
voluntary manslaughter
charged with murder but can raise a defence, had intention
involuntary manslaughter
no intention to kill
murder: 4 points to remember
- common law offence
- not defined by parliament
- defined by judges decisions
- definition based on one given by 17th century- Lord Coke
Lord Coke- 17th century
‘the unlawful killing of a reasonable person in being and under the kings peace with malice aforethought, express or implied.’
actus reas of murder (5)
-the unlawful killing of a reasonable person in being
-under the kings peace
-can be an act or an omission
- must cause the death, causation will apply
-murder = result crimes
mens rea of murder
malice aforethought express or implied
reasonable person in being and the two problems
- means human being
1. is a foetus in the womb a reasonable being 2. brain dead or life support
foetus
homocide offence cannot be charged in respect of killing a foetus, but If foetus injured and born alive, but died afterwards as a result of injuries then can be acts real for murder or manslaughter
murder: foetus is not a ‘reasonable person in being’ until it takes its first breath case
AG’S REF NO.3
murder: kings peace (3)
- killing an enemy in course of war not murder
- killing prisoner of war would be sufficient for actus reas of murder
- a soldier on leave will not have the right to kill - ao2 establish that defendant is not a soldier
murder: malice aforethought express (4)
-intention
-direct (mohan-desired consequence)
- or oblique (woolin-outcome of death is virtually certain)
- not recklessness
murder: malice aforethought implied (3)
- intention
- direct or oblique
- to cause GBH: knowing death would result
murder: the intention to cause GBH is enough for a conviction of murder. defendant must be aware that the action could of resulted in death case
r v vickers
intention for murder can be…
direct: desired consequence ( r v mohan)
OR
oblique: jury can infer intention (r v woolin) if the outcome of death or serious harm is virtually certain and the defendant realises this
voluntary manslaughter: a person charged with murder will have the charge reduced to manslaughter if he satisfies the requirements of either: (2)
- diminished responsibility
- loss of control
these cannot be used elsewhere
diminished responsibility: statutes
section 2 (1) homocide act 1957 as amended by section 52 coroners and justice act 2009
homocide act 1957- amended by section 52, coroners and justice act 2009: section 52 (1)
a person who kills or is a party to the living of another is not to be convicted of murder if defendant was suffering from an abnormality of mental functioning
homocide act 1957- amended by section 52, coroners and justice act 2009: section 52(1)(a)
arose from a recognised medical condition
homocide act 1957- amended by section 52, coroners and justice act 2009: section 52 (1) (b)
substantially impaired defendants ability to do one or more of the things mentioned in subsection 19
homocide act 1957- amended by section 52, coroners and justice act 2009: section 52 (1) (c)
provides an explanation for defendants act and omissions in doing or being a party to the willing
homocide act 1957- amended by section 52, coroners and justice act 2009: section 52 (1)(A)
(a) to understand the nature of the defendants conduct
(b) to form a rational judgement
(c) to exercise self control
homocide act 1957- amended by section 52, coroners and justice act 2009: section 52 (1)(B)
for the purpose of subsection (1) (c) an abnormality of mental functioning provides an explanation for the defendants conduct if it causes or is a significant contributing factor in causing defendant to carry out that conduct
definition of the abnormality of the mind: a state of mind so different from that of a reasonable person case
r v byrne
abnormality of mental functioning
the defendant must prove that the condition was excessive when compared to that experienced by a reasonable person
arising from a recognised medical condition
section 52(1)(a)- abnormality of mental functioning must arise from a recognised medical condition
pre-menstrual tension is a recognised medical condition case
r v smith
loss of control: battered wife syndrome is a recognised medical condition case
r v aluwalia
loss of control: severe depression is a recognised condition case
r v gittens
loss of control: jealousy is a recognised medical condition cases (2)
r v vinagre, r v miller
must substantialy impair the loss of control: defendants ability to one or more of the three things listed in section 52 (1)(A)
-to understand the nature of his conduct
-to form a rational judgement
-to exercise self control
substantial does not mean total nor trivial or minimal- something in-between as is for the jury to decide cases (2)
r v lloyd, r v gold
understand the nature of his conduct (manslaughter)
covers situations where defendant is in an automatic state and don’t know what they are doing
ability to form a rational judgement (manslaughter)
are they suffering from paranoia, schizophrenia?
ability to exercise self control (manslaughter)
do they know what they are doing? can they control themselves?
section 52 (1) (B), explanation is provided if the abnormality: (3)
(1) causes,
(2) or was at least a significant contributory factor in causing,
(3) the defendant to carry out the conduct
diminished responsibility and intoxication: two situations which can arise
(1) defendant is suffering from diminished responsibility and is intoxicated
(2) the intoxication is due to an addiction (ADS) alcohol dependant syndrome
diminished responsibility and intoxication: the jury must
disregard intoxication (existing case law) and decide whether the abnormality of mental functioning itself substantially impaired defendants ability
the jury should disregard intoxication (existing case law) and decide whether the abnormality of mental functioning itself impaired defendants ability case
r v dietschmann
transient effect of drink or drugs on the brain must be disregarded case
r v dowds
the intoxication is due to an addiction, the jury must consider… (2)
(1) was syndrome such an extent that is constituted an abnormality of mind induced by illness or disease, if yes,
(2) then was defendants mental responsibility at the time substantially impaired
test for alcohol dependant syndrome case
r v wood
if intoxication caused a disease of the mind, then diminished responsibility case
r v inseal
clarification of alcohol dependant syndrome case
r v stewart
3 stage test for r v stewart
(1) was the defendant suffering from an ‘abnormality of mental functioning?’
(2) if so, was defendants abnormality caused by alcohol dependant syndrome
(3) if so, was defendants mental responsibility impaired?
relevant issues the court will consider: diminished responsibility (4)
-the extent of and of seriousness of defendants dependency
-extent to which defendants ability to control his drinking, or to choose whether to drink or not was reduced
- whether defendant was capable of abstinence from alcohol and if so, how long?
- whether defendant was choosing for a particular reason, such as a celebration
loss of control (3)
-defence to only murder, will reduce the charge to voluntary manslaughter
-statute: section 54 of the coroners and justice act
- involves snapping, in fear for life
loss of control: section 54(1)
where a person (d) like or is a party to the killing of another (v) d is not convicted of murder if…
loss of control: section 54 (1)(a)
defendants acts and omissions in doing or being a party to the killing resulted from defendants loss of self control
loss of control: section 54(1)(b)
the loss of self control has a qualifying trigger set out in sec 55(3)-(5)
loss of control: section 54(1)(c)
a person of defendant sex and age with a normal tolerance of self-restraint and in the circumstances of defendant, might have reacted in the same or in a similar way to the defendant
defendant must have lost self-co trip, feeling unwell or unable to think straight is not sufficient case
r v jewell
there can be a time lapse in loss of control, but threat must still be hanging over you 54(2) case
r v ibrams and gregory
qualifying triggers: sec 55(3)
defendants fear of serious violence from victim against defendant or another identified person
qualifying triggers: sec 55(4)
thing(s) done/ said which not only constituted circumstances of an extremely grave character but also caused defendant to have a justifiable sense of being seriously wronged
qualifying triggers: section 55(5)
a combination of section 55(3) and section 55(4)
fear of violence on another person is sufficient 55(3) case
r v ward
sec 55(4)- 2 points which have to be shown if defendant is relying on things said or done
(1) they were of an ‘extremely grave character’ and
(2) they caused the defendant to have a justifiable sense of being seriously wronged
if defendant has incited the violence, then defendant cannot rely on the qualifying trigger of fear of violence sec 55(6)(a) case
r v dawes
things said or done - circumstances must be extremely grave and defendants sense of being seriously wronged must be justified case
r v hatter
things said done must constitute circumstances of extremely grave character or sense of being seriously wronged, must be directed at defendant cases (2)
r v zebedee, r v bowyer
excluded matters: voluntary man slaughter which the courts will not accept (3)
- 55(6)(a) defendants fear of serious violence is to be disregarded if defendant incited something to be done or said to provide him with the excuse to use violence
-55(6)(b) makes same point, if defendant incited a thing to be done or said that caused in him a sense of being seriously wronged
-55(6)(c) anything said or done in connection with sexual infidelity is to be disregarded
sexual infidelity alone cannot amount to a qualifying trigger 55(6)(c) case
r v clinton
standard of self control (3)
-2009 act requires that whichever qualifying trigger is relied on, it is necessary for the defendant to show that
- a person of defendants sex and age , with a normal degree of tolerance and self-restraint, might have reacted in the same or similar way
- defendant is expected to show a normal degree of tolerance, the fact that defendant is particularly hot-tempered cannot be taken into account
objective test is compared to a person of defendants sex and age with a normal degree of tolerance, hot tempered cannot be taken into account case
r v mohammed
intoxication must be disregarded, it is not a circumstance case
r v asmelash
involuntary manslaughter: 4 elements of unlawful act (constructive)
- unlawful criminal act
- act must be ‘dangerous’ (risk of seeing some harm
- causation: act must cause the death
- defendant must have the mens rea for the unlawful act
first element: must be a criminal, unlawful act case
r v lamb
first element: civil wrong is not enough case
r v franklin
first element: there must be an act, an omission is not enough
r v gibbons and procter
the definition of dangerous is
objective
second element: the act must be dangerous: ‘reasonable person needs to be at a risk of some harm resulting from the act’ case
r v church
second element: it is not necessary for the reasonable person to forsee that particular type of harm, enough to force harm case
r v jm and sm
second element: the ‘risk of harm’ must must be physical- something which causes fear and apprehension is not sufficient case
r v dawson
second element: act does not have to be aimed at a person, can be aimed at a property case
r v goodfellow
third element: where a reasonable person would be aware of the victims frailty and the risk of physical harm the defendant will be liable case
r v watson
fourth element: it is not necessary for the defendant to realise that the act is unlawful or dangerous
r v newbury and jones
gross negligent manslaughter (4)
- defendant breaking a duty that is owed to the victim
- based on tort (civil wrong)
- leading case = adomako
- causing death to the victim
4 point test: 1. duty of care 2. defendant breaches duty 3. breaches duty in a very negligent (gross) way and causes death 4. risk of death from omission case
r v adomako
duty of care (2)
- a duty of c are must be owed to the victim by the defendant
- basic principles of CAPARO
duty of care: proximity
relationship in time and place, could be the same road, room consumer of product
duty of care: foreseeable harm
based on the situation, harm must be foreseeable (r v adomako) does not have to be specific harm
duty of care: fair, just and reasonable
is it fair to put the duty on the defendant
there is a duty owed by the landlord to maintain property to a safe standard case
r v singh
duty based on policy, moral duty case
r v wacker
defendant must breach their duty and it must cause the death, what is a breach?
going below the standard of a reasonable person doing that task
the breach must be ‘gross’. what is the definition of gross?
showed such disregard for the life and safety of others as to amount to a crime against the state
definition of gross case
r v adomako
the breach must be gross case
r v bateman
risk of death (4)
- not totally clear whether there has to be a risk of death
- of if the risk needs only be to health and welfare
- r v stone and dobinson- health and welfare
- matter now resolved on r v mirsa
must be a risk of death from the defendants omission case
r v misra
what is an attempt/preliminary offence? (2)
-where a person tries to commit an offence
- but fails to complete it
definition of attempt
- sec 1(1) of the criminal attempts act 1981
- ‘if, with intent, to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence.’
the act must be more than merely preparatory cases (2)
r v campbell, r v gullefer
an attempt begins when, ‘the merely preparatory acts have come to an end and the defendant embarks upon the crime proper case
r v geddes
attempts should be considered by asking 2 questions:
(1) had the accused moved from planning or preparation to execution and implementation?
(2) had the accused done an act showing that he was actually trying to commit the full offence, or had he got only as far as getting ready or putting himself in a position to do so?
the act has to be more than merely preparoty (actus reas) must embark on the crime proper cases (3)
r v boyle and boyle, r v tosti, r v jones
for attempted theft, if the defendant had conditional intent and this can be proved, then they are guilty cases (2)
r v husseyn, r v easom
mens rea for attempted murder (3)
- involves proving a higher level of intention then for a full offence of murder
- full offence requires that the prosecution proves the defendant had the full intention to kill
- malice aforethought express
for attempts murder, we need to prove the intention to kill case
r v whybrow
recklessness is not sufficient, need desired consequence case
r v millard and vernon
for attempted theft, if defendant had a conditional intent, and this can be proved, then they are guilty case
r v AG’s REF No 1+2
recklessness is not sufficient for an attempt, only exception is that if it endangers life case
AG’s REF No3
sec1(2) criminal attempts act
a person may be guilty of an attempt offence…even though the facts are such the commission of the offence is impossible
criminal attempts act sec 1(2) case
anderton v ryan
can be guilty for attempting the impossible case
r v shivpuri
sec 1 theft act 1968
‘a person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it’
theft: section 3 appropriation
any assumption by a person of the rights of the owner
theft: rights of an owner include… (4)
- selling the property
- destroying
- lending
- hiring
theft: rights can be all or part case
r v morris
theft: consent can amount to appropriation case
r v lawrence
theft: “dishonest appropriation” can be with consent of the owner case
r v gomez
theft: “dishonest appropriation” can be with consent of the owner case
r v gomez
theft: appropriation can be with the consent of the owner, even if it was given as a gift case
r v hinks
theft: property sec 4(1)
‘property includes money and all other property real or personal, including things in action and other intangible property.’
5 main types of property
- money: coins, bank notes
- real property
- personal property: all moveable items: books, ads,cars,jewellery
- things in actions
- other intangible property (can pick up and move)
dead bodies and body parts are personal property case
r v kelly and lindsay
you cannot steal knowledge/information case
Oxford v moss
flowers and wild animals section 4(3)
plants and fungi growing wildly, unless for commercial purposes
flowers and wild animals section 4(4)
wild creatures, but not for commercial purposes
property section 5 (1)
‘property shall be regarded as belonging to to any person having possession or control of it, or having in it any prophetary right or interest.’
what is possession and control? (2)
- owner of the property normally has possession and control
- many situations in which a person can have either possessions control eg. hire a car, have possessions and control , but if someone steals, its theft from hirer
you can steal your own property (possession and control) case
r v turner
obligation to deal with property in a certain way section 5(3) case
r v davidge and bunt
property obtained by mistake section 5(4) case
r v AGS ref No.1
property obtained by mistake, except in gambling situations, section 5(4) case
r v gilks
theft: section 2(1) dishonesty
‘it is immaterial whether the appropriation is made with a view to gain, or is made for the chiefs own benefit.’
behaviour that is not dishonest (based on the honest belief of the defendant) section (1)(a)
he was in law the right to deprive the other of it
behaviour that is not dishonest (based on the honest belief of the defendant) section (1)(b)
he would have the owners consent if the other knew of the appropriation
behaviour that is not dishonest (based on the honest belief of the defendant) section (1)(c)
the person to whom the property belongs to cannot be discovered by taking reasonable steps
definition of dishonesty case
r v barton and booth
theft act section 6
defendant must have the intent to permentantly deprive, intent to never return
you must replace the item with the exact same item case
r v velumyl
theft act section 6 definition
if we can prove appropriation, it is probably enough to satisfy section 6
dispose is extended to mean deal case
r v lavender
there is an intention to deprive if the goodness or practical value has gone from the article case
r v eason
where can robbery be found?
sec 8 theft act 1968
definition of robbery
you will be found guilty of robbery if you steal and immediately before or at the time of doing so use force or put or seek to put any person in fear of violence
actus reas of robbery: 2 elements
- completed theft
- force or putting or seeking to put any person in fear of violence
when does the robbery need to occur? (2)
- immediately before
- at the time off the theft
mens rea of robbery (2)
- mens rea of theft
- intention to use the force in order to steal
theft: there must be a completed theft case
r v corcoran and anderton
theft: force can be minimal case
r v dawson and james
theft: force can be indirect case
r v clouden
theft can be ongoing cases (2)
r v hale, r v lockley
theft: force in order to steal (2)
- force must be used in order to steal
- if force is not used for this purpose, then any later theft will not make it a robbery
mens rea for robbery (4)
- def must have the mens rea for theft
- eg. he must be dishonest and must intend to deprive and the other of the property permenantly
- must intent (Mohan)
- include dishonesty and intention to permenantly deprive (sec 2 and 6)
burglary: sec 9(1)(a) (4)
- enters a building or part of a building as a trespasser with the intention to:
1. steal
2. inflict gbh
3. do unlawful damage
burglary: sec 9(1)(b) (3)
- having entered a building or part of a building as a trespasser
- steals or attempts to steal or
- inflicts or attempts to inflict gbh
burglary: entry can be effective or substantial case
r v collins
burglary: entry can just be effective case
r v brown
burglary: entry does not have to be effective case
r v ryan
burglary: a building is a solid structure, has doors and locks and connected to utilities case
r v leathley
burglary: a building is a solid structure, has doors and locks and connected to utilities case
r v leathley
burglary: if the structure is mobile then it is not a building case
r v seekings and gould
part of a building definition
defendant may have permission to be in one part of the building, but not the other
part of a building definition case
r v walkington
definition of a trespasser: someone who does not have permission to be there case
r v collins
burglary: if you go beyond the permission given, you will become a trespasser case
r v smith and jones
mens rea of burglary (2)
- enter as a trespasser
- the ulterior offence
9(1)(a)
defendant must have the intention to steal, commit gbh or cause criminal damage, don’t have to do it, jusr intention
9(1)(b)
defendant must have the men’s rea for theft and a trespasser, steals or attempts to steal, inflicts or attempts to inflict gbh
defence of duress (2)
- based on the fact that the defendant has been forced to commit the crime
- defendant must be threatened with death or serious injury
duress was held to not be a defence: what did lord hailsham say?
‘the ordinary man of reasonable fortitude is not supposed to be capable of heroism if he is asked to take an innocent life rather than his own’
the defence of duress cannot be used for murder case
r v howe
duress cannot be used for murder or attempted murder case
r v wilson
obiter dicta
statements or remarks made by a judge, considered persuasive but not legally binding
ratio decidendi
legal principle or rule that is the basis for a courts decision in the case
duress: threats (2)
- must be a threat of death or serious injury
- must cause the defendants will to be so over born by the threats that they commit an act which they will not otherwise do
accumulative effect of threats can be considered case
r v vaderrama-vega
subjective test- graham test
was the defendant compelled to act as he did because he reasonably believed he had good cause to fear serious injury or death
objective test- graham test
if so, would a sober person of reasonable firmness, sharing the same characteristics as the confused have responded in the same way?
2 stage gets (subjective and objective) case
r v graham
jury can take into account any special characters the defendant may be suffering from (2)
r v martin
if the police protection is possible then the defendant cannot rely on duress case
r v gill
how is age a relevant characteristic in duress
very young people and the very old could be more susceptible to threats
how is pregnancy a relevant characteristic in duress
there is the additional fear for the safety of the unborn child
how is serious physical disability a relevant characteristic in duress
could make it more difficult for the defendant to protect himself
how is recognised medical condition a relevant characteristic in duress
could include ptsd or any other disorder which meant that a person might be more susceptible to threats
how is gender a relevant characteristic in duress
although the court of appeal thought that many women might have as much more courage as men
the threat need not be immediate - but had to be imminent in the sense that is was hanging over them case
r v abdul-hussain
defence can only be used if the threats are in order to make him commit a specific offence case
r v Cole
self induced duress cases (2)
r v sharp, r v shepherd
duress of circumstance
a defendant may be forced to act because of the surrounding circumstances
the circumstance is life threatening, so the defendant has committed an offence cases (3)
r v willer, r v conway, r v martin
defence of circumstances is a defence to all crimes but murder and attempted murder, which is down for the jury to decide case
r v pommell
your honest belief as to the threat case
r v cains
