Criminal law semester 2 Flashcards

Question

What are the regulation of solicitors?

Answer 1

The law society  represents interests of solicitors Solicitors’ regulation authority  regulation of solicitors

Answer 2

- Qualifying Law Degree/ Graduate diploma in Law (GDL) - Legal Practice Course (LPC) - Two-year training contract

Answer 3

- Degree in any subject or apprenticeship/experience - SQE assessments 1 and 2 - Qualifying work experience

Answer 4

- Advocates in civil and criminal courts - Self-employed in Chambers - Employed in-house

Answer 5

- Higher rights of audience – provide specialist advocacy - Provide specialist legal advice  Advice  Opinion - Instructed/briefed by a solicitor (usually)

Answer 6

- Barristers practice in different regions known as circuits - Six different circuits

Answer 7

- Gray’s Inn - Lincoln’s Inn - Middle Temple - Inner Temple

Answer 8

- Summary of a case by a solicitor requesting actions from a barrister - Usually accompanied by the brief – case documents, e.g. witness statements - Direct/Public Access barristers can accept instructions directly from a lay client

Answer 9

- The bar council  Represents interests of barrister - Bar Standards Board (BSB)  Regulation of barristers - BSB handbook  standards of professional conduct for barristers

Answer 10

- Golden rule, applies to barristers only, not solicitors - Advocates are there to represent people, not to judge them - A barrister must accept instructions specifically addressed to them irrespective of:  The identity of the client  The nature of the case  Whether it is being paid for privately or publicly  Any belief of opinion which s/he may have formed as to the character, reputation, cause, conduct, guilt or innocence of the client - Barristers cannot discriminate between clients. They must take on any case, provided it is within their competence and they are available and appropriately remunerated

Answer 11

- Qualifying Law Degree / Graduate diploma in law (GDL) - Bar Course / Bar Practice Course / Bar Training Course - One year pupillage at a barristers’ Chambers

Answer 12

- Start off with modest earnings – increase as become more experienced - Most barristers are self-employed  Can be precarious, particularly in early years of lower-paid (legal aid) areas of law e.g. crime  Difficult bar (and other legal aid work) vs commercial bar – huge discrepancy in pay

Answer 13

- Development of the Royal Courts - Development of the writ system - Greater reliance on itinerant justice - Emergence of a professional judiciary - Dispensation of justice more centralised and less subject to local variation – a law common to all

Answer 14

- Reign of Edward 1: a ‘golden age of statute’ - Changes in both private and public law - Role of judges: interpreters of statue law

Answer 15

- Writ system: became rigid over time - Claimants sought a remedy from the chancellor - Courts of Chancery: developed as source of law alongside the Royal Courts - Development of a new body of law: equity - Late 19th Century: formation of the High Court of Justice

Answer 16

- Statutory Authority (Legislation) - Case law - International documents. E.g. Treaty

Answer 17

- Textbooks (aren’t really sources of law but can help us understand the law) - Academic: monographs and journals - Professional commentary and case notes - Legal encyclopaedias (i.e. Halsbury’s laws)

Answer 18

- System of treating cases alike - Stare decisis: ‘let the decision stand’ - Ratio Decidendi: the ratio decidendi forms the binding part of the judicial decision - Obiter dicta: obiter remarks may prove persuasive in later cases

Answer 19

- Case law dependant on utilisation of court system:  Expense  Time  ADR  Cannot be used to develop law without a relevant case - Parliament: has wide-ranging sovereign powers alongside greater pool of ideas

Answer 20

- Acts of Parliament and secondary legislation - Existing Acts of Parliament provide a foundation upon which an intricate web of laws spread out from - A bill is there forever, unless it is changed, repealed or another bill adds another layer of law

Answer 21

- Constitutional principle: UK parliamentary sovereignty - Primary legislation: Scotland Act 1998 - Queen/King speech – sets out government’s agenda for the next year - Hybrid legislation: The Channel Tunnel Act 1987 and High-Speed Rail (London-West midlands) Act 2017: Private and Public - PMB - Response to court decisons

Answer 22

- Roman law - Authorities’ texts (e.g. Blackstone commentaries) - Custom traditional and early common law - Equity: legal principles of common law supplement strict rules to avoid harshness

Answer 23

- Academic publications: monograph - Journal articles - Textbooks

Answer 24

- Monarchs had previously required the support of both the Barons (the magnate class) and the Church in order to reign successfully - Monarchs thus had Great Councils whom they would consult with and receive consent for their actions - During the reign of Henry III, Parliament emerged from the Great Council - Henry required the Shires to send Knights to the council (freemen of the shires) in addition to the magnate class. - Magnate class = barons and people high up in the church - During the reign of Henry III the term parliament became more widely used

Answer 25

- King Edward I of England conquered Wales in 1282 - Union between England and Wales unilaterally recognised by two Acts of the English Parliament in 1536 and 1543 - English law accordingly applied in Wales, thus creating the jurisdiction of England and Wales - This jurisdiction remains to this day despite the introduction of Welsh devolution beginning in the late 1990s, however… - Wales Act

Answer 26

Bill of rights 1689 Act of settlement 1701 Union with Scotland Act 1706

Answer 27

- Act of the English Parliament which implemented the 25 Articles of Union, also known as the Treaty of Union, thereby creating the Kingdom of Great Britain, later the UK. - The Scottish Parliament implemented the treaty of Union, bypassing the union with England Act 1707 - Article III created a new Parliament of Great Britain, thereby extinguishing the Parliaments of England and Scotland - However, only the Parliament of Scotland closed (and is now the home of the Court of Session). - The English Parliament became the British Paliament, and Scottish MPs took up seats in the Chamber

Answer 28

- England has no devolution - UK parliament doubles as English government - Key Government departments, such as Health, Education, and Justice, apply to England only as these are matter otherwise devolved to Scotland, Wales and Northern Ireland

Answer 29

Public bills, private members bills and private bills

Answer 30

Bills which have general application and are prepared by parliamentary counsel and presented to Parliament by Government Ministers e.g. the EU (Withdrawal) Act 2018

Answer 31

Prepared and presented by individual MPs successful in a ballot e.g. the Abortion Act 1967

Answer 32

Proposed by local authorities or public companies which affect only the body proposing it

Answer 33

First reading Second reading Committee stage Report stage Third reading House of Lords

Answer 34

- Title of proposed Bill read to the House

Answer 35

- Proposals are debated by the House - Amendments may be tabled and voted on - Main vote is on whether the Bill should proceed any further

Answer 36

- Bill is sent to a committee (usually an ad hoc committee) and undergoes detailed examination - Committee may recommend additional amendment be made to the Bill

Answer 37

 Committee ‘reports’ to the House  Any proposed amendments are voted on

Answer 38

- Bill then presented to House for a final vote

Answer 39

- If a Bill passes the Commons, it will then go to the House of Lords for consideration. - Process in House of Lords is near-identical. - Should the Bill pass Third Reading, it may have been amended by the Lords. - If so, it goes back to the House of Commons for consideration and approval. - If the House of Commons rejects the amendments it will then go back to the House of Lords for reconsideration. - This process, known as ‘ping pong’, will repeat until an agreement is reached, parliamentary time runs out, or the parliament Acts procedure is invoked.

Answer 40

- Also known as ‘delegated’ or ‘subordinate’ legislation - An Act of Parliament (primary legislation known as a ‘Parent Act’ or ‘Enabling Act’) can authorise another person or body, usually a Secretary of State, to pass laws - Secondary legislation can be known as the following:  Regulations  Orders  Rules  Orders in Council (must be approved by the Privy Council)

Answer 41

- Statutory Instruments (SIs) - A commonly used method of recording the many types of delegated legislation - The making of SIs is governed by the Statutory Instruments Act 1946 - It also makes provisions for the scrutiny and approval of SIs by parliament (albeit limited)

Answer 42

- Usually highly technical, designed to save Parliament’s time and allow them to focus on bigger issues. - BUT there can be concerns about: - Accountability - Abuses - Henry VIII clauses

Answer 43

- Joint Committee on Statutory Instruments (House of Commons Select Committee on Statutory Instruments when only Commons required to consider delegated legislation) - Provides technical scrutiny of delegated legislation i.e. is it within the scope of the powers conferred by the Enabling Act - Does not consider merits of delegated legislation

Answer 44

 SI laid before both Houses of Parliament  Has legal effect unless …  Within a 40 day period, either House votes to annul it  If no motion to annul is passed, SI remains law

Answer 45

- 10% of SIs subject to this procedure - Each House must expressly approve SI - Debate in Chamber (90 mins) or scrutiny by the Delegated Legislation Committee (DLC) for 90 mins followed (no amendments permitted) - House then votes on motion to approve or reject the SI

Answer 46

- ‘These rules are a procedural code with the overriding objective enabling the court to deal with cases justly and at proportionate cost’

Answer 47

1. Prior to proceedings 2. Between start of proceedings and trial 3. Civil trial 4. Awarding costs 5. Enforcement of civil judgements - Appeal (can be multiple appeals) - But litigation should only be commenced as a last resort

Answer 48

- Court excepts parties to have exchanged sufficient information to:  Understand each other’s positions  Make a decision about how to proceed  Try to settle without proceedings  Consider a form of ADR  Support the efficient management of these proceedings  Reduce the cost of resolving the dispute

Answer 49

- Kings bench - Chancery - Family division

Answer 50

- One national civil court: local jurisdiction - Governed by: County Courts Act 1984 - Hears entire range of cases in civil matters - Where to commence proceedings, High Court of Country Court? Relevant factors include financial value of claim; complexity; importance of claim

Answer 51

- In most cases, the claimant has a choice of which court to commence proceedings. Must not go to the high court unless there is a monetary value of more than £100,000. Must go to the high court if it is a personal damages case of more than £50,000.

Answer 52

- Claimant (plaintiff): person making the claim - Defendant: person claim made against - Proceedings begin once form ‘issued’: dated and stamped by court (CPR, part 7) - Serve claim form on defendant within 4 months of claim being issues

Answer 53

- CPR: Part 10-20 - Disputing, admitting, unable to admit/deny - Default judgement - Counter claim:

Answer 54

when the defendant responds by disputing the claim and the defendant bringing forward another claim against the claimant

Answer 55

Small claims Fast track Intermediate track Multi-track

Answer 56

claims less than £10,000, designed for low value cases to be dealt with quickly and at low cost, informal hearings, evidence does not need to be said under oath. E.g. incomplete work to a car

Answer 57

more than £10,000 less than £25,000, small personal injury claim

Answer 58

claims between £25,000 and £100,000, personal injury claim

Answer 59

over £25,000 for the most complex cases

Answer 60

- Claimant’s witnesses go first:  Examination  Cross examination  Reply

Answer 61

Appeal of law not evidence.

Answer 62

The conduct element

Answer 63

The mental element - D's state of mind. E.g. intention, recklessness, negligence, belief, knowledge

Answer 64

Assault and battery Assault occasioning bodily harm Wounding or inflicting Grievous bodily harm Wounding or causing GBH with intent

Answer 65

Summary - 6 months and or fine

Answer 66

Triable either way, 5 years

Answer 67

Triable either way, 5 years

Answer 68

Indictable only, max life imprisonment

Answer 69

 An assault is committed when D intentionally or recklessly causes another to apprehend immediate and unlawful violence

Answer 70

 A battery is committed when D intentionally or recklessly inflicts unlawful force.

Answer 71

D does an act which causes V to apprehend (expect) immediate and unlawful personal violence

Answer 72

: D intestinally or recklessly causes V to have this apprehension

Answer 73

- Raising fists at someone; - Waving a knife or a gun in a threatening manner; - Shouting aggressively at someone.

Answer 74

No, apprehension of violence is enough

Answer 75

No, just anticipation

Answer 76

 Self-defence (if reasonable force)  Conduct which is consented to  Conduct to effect a lawful arrest

Answer 77

Positive acts

Answer 78

- The actus reus of a battery is the infliction of unlawful force on another person.

Answer 79

D does so: - Intentionally Or - Recklessly

Answer 80

The blow has to land, a battery requires the actual application of physical force to the victim. No harm in necessary - degree of force can be slight

Answer 81

where a police officer lawfully arrests a person; * where a child is subjected to reasonable punishment; and * where reasonable force is used in self-defence or the prevention of crime.

Answer 82

- A battery may also be committed by striking another person with an instrument or by throwing an object at a person.

Answer 83

AR of assault or battery which occasions ABH

Answer 84

MR of assault or battery

Answer 85

bodily harm must be more than trivial or trifling.

Answer 86

Unlawfully wounding or inflicting GBH on another person

Answer 87

Unlawfully’ means that there is no lawful justification for the wound or GBH, i.e. harm not inflicted in self defence or defence of another

Answer 88

- The actus reus of this offence may be committed in one of two ways: by the defendant wounding the victim, or by inflicting GBH on the victim.

Answer 89

- A wound requires the continuity of the skin to be broken - The continuity of the whole skin must be broken; both the epidermis and the dermis must be broken a ‘slight scratch’ was not sufficient to constitute a wound. - In Wood; McMahon (1830) 1 Mood CC 278, V’s collarbone had been broken, but there was no break in the continuity of the skin and, therefore, no wound.

Answer 90

‘grievous bodily harm’ should be given its ordinary and natural meaning. ‘Grievous’ = ‘really serious’.

Answer 91

- Where a defendant, knowing that he was HIV positive, recklessly transmitted the virus to someone else, he could be guilty of inflicting GBH. - Consent to sexual intercourse was not consent to the risk of disease. - However, the Court held that there would be a defence available to s.20 if V did consent to the risk of a sexually transmitted disease.

Answer 92

Unlawfully wounding or causing GBH to a person

Answer 93

Key difference is that GBH must be caused. House of lords has held that the two can be used interchangeably

Answer 94

Slightly more complicated than mere intention - Several possible forms of mens rea that may be charged.  Intention to cause GBH (most common)  Intention to resist arrest; or  Intention to prevent the lawful apprehension of a person

Answer 95

For a specific intent offence, recklessness is not sufficient - D will have direct intent in relation to causing GBH if it’s D’s aim or purpose to do so.

Answer 96

an intention to resist arrest or to prevent the lawful apprehension or detainer of a person; and  recklessness as to whether some harm was caused, albeit not serious harm

Answer 97

- Consent is a defence to assault and battery - BUT it will only be a defence to more serious offences in certain circumstances - Consent must be valid and even an adult may be unable to give valid consent (e.g. if they are highly intoxicated or lack mental capacity). - V must have sufficient understanding of the nature of the act proposed and also have the freedom and capacity to choose to consent to it.

Answer 98

 If lack of consent is part of the actus reus then it must be proved by the prosecution.  If consent is a defence, then the defendant has an evidential burden to prove it.

Answer 99

- V’s consent is not a defence where actual bodily harm (ABH) or greater is intended and/or caused, unless the activity falls within a list of exceptional cases where the activity is deemed to be in the public interest

Answer 100

 Boxing and other contact sports such as rugby.  Surgery performed by medical professionals.  Tattooing (including DIY tattooing (see Wilson [1997] QB 47).  Stunts (e.g. circus acts);  ‘Undisciplined horseplay’ (e.g. children throwing each other into the air for fun);  Ear piercing; and  Circumcision (male).

Answer 101

Murder Manslaughter Infanticide Offences of causing death while driving

Answer 102

unlawfully killeth … any reasonable creature in rerum natura under the King’s peace”. - In modern language, this is simplified as: - The defendant causes the victim (a human being) to die

Answer 103

- The mens rea of murder is an intention to kill or cause GBH

Answer 104

Voluntary and involuntary

Answer 105

- Voluntary manslaughter – where D would be guility of murder but for the existence of a special defence: (i) Loss of control (ii) Diminished responsibility (iii) Suicide pact (iv) Infanticide

Answer 106

(i) Constructive/unlawful act manslaughter (ii) Gross negligence manslaughter (iii) Reckless manslaughter

Answer 107

- Partial defence - Act results from loss of self control - The loss of control has a qualifying trigger - Only available in terms of murder, reduces it to manslaughter

Answer 108

- Available where the defendant killed the victim, and: (1) The defendant had lost self-control (2) The loss of self-control was caused by a ‘qualifying trigger’ and (3) A person of D’s age and sex with a normal degree of tolerance and self-restraint, and in the circumstances of D, might have reacted in the same or similar way

Answer 109

Fear of serious violence Serious wrong trigger

Answer 110

- “(3) This subsection applies if D’s loss of self-control was attributable to D’s fear of serious violence from V against D or another identified person.” - Only need fear of serious violence (even if mistaken) – no need to show that there was violence. - Must be fear of serious violence, not just fear of a minor act of violence - Fear of violence can be of violence towards D or another person.

Answer 111

- “(4) This subsection applies if D’s loss of self-control was attributable to a thing or things done or said (or both) which— - (a) constituted circumstances of an extremely grave character, and - (b) caused D to have a justifiable sense of being seriously wronged.”

Answer 112

“person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D”. - objective question - If someone with normal powers of tolerance and self-restraint would not have responded to the qualifying trigger by killing, then D cannot rely on the defence

Answer 113

- The burden of proof in relation to loss of self-control lies on the prosecution. - Where there is sufficient evidence of the defence (whether raised by D or another witness), the prosecution must disprove it beyond reasonable doubt.

Answer 114

1. The defendant was suffering from an abnormality of mental functioning caused by a recognised medical condition; 2. As a result of the abnormality, the defendant’s ability to do one of these three things was substantially impaired: a. understands the nature of their conduct, b. form a rational judgement, or c. exercise self-control. 3. That the abnormality of mental functioning provided an explanation for the defendant’s conduct, in that it was a significant contributory factor in carrying it out.

Answer 115

Substantially impair their ability to do one of the following:  understand the nature of their conduct;  form a rational judgement; or  exercise self-control.

Answer 116

- Diminished responsibility is not available in cases of voluntary acute intoxication alone - However, if D was intoxicated and suffering from a mental condition, but it was a mental condition that caused them to commit the murder, not the intoxication. - If D can show they have brain damage as a result of drug or alcohol misuse, this can count as an abnormality of mental functioning. - Rarely, diminished responsibility could be used where D’s addiction amounted to a medical condition and was so severe that they were unable to stop themselves from taking drink or drugs.

Answer 117

- If D killed the victim in the course of a suicide pact, then D will be guilty of manslaughter rather than murder.

Answer 118

- Can be a charge of infanticide, or a partial defence, reducing murder to manslaughter. Available where:  Mother has killed her own child (under 12 months)  The mother does not have a younger child  “The balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child”. - Cannot be used by the father.

Answer 119

- Involuntary manslaughter is homicide committed without the mens rea for murder (i.e. an intention to kill or cause GBH).

Answer 120

 Constructive / unlawful act manslaughter  Gross negligence manslaughter; and  Reckless manslaughter.

Answer 121

1. The defendant does an intentional act; and 2. That act is a crime; and 3. That act is dangerous (likely to cause harm to someone); and 4. That act causes the victim to die

Answer 122

- Intentional (deliberate), not negligent. - Omission probably not sufficient – where there is an omission, only reckless or gross negligence manslaughter likely to be available

Answer 123

- It must be a criminal act - Prosecution must prove a complete base crime has been committed: - means both the actus reus and mens rea of the base crime - D must not have a defence for the base crime - The defendant does not need to forsee death

Answer 124

E.g. - D appealed against conviction on basis that throwing a dead body into a river cannot be dangerous to that body. Appeal dismissed. - In assessing dangerousness, the perspective of a sober and reasonable person at the scene is relevant, not someone with special knowledge. Would a sober and reasonable person recognise that the act might subject V to the risk of some physical harm.

Answer 125

- Prosecution must prove that D’s unlawful and dangerous act caused the victim to die. - Not quite the same as saying D must cause the victim’s death. - E.g. where D does some acts to V which are unlawful and dangerous, and some which are not. It is the unlawful act which must cause death, not the unlawful non- dangerous acts. - No need to establish that the victim was the intended victim of the unlawful act. - No need for the unlawful act to be dangerous to V, as long as it is dangerous to someone:

Answer 126

1. The defendant owes the victim a duty of care. 2. The defendant breaches that duty of care. 3. Obvious risk of death at the time the defendant breaches their duty 4. The breach of duty causes death. 5. The breach was so gross as to justify a criminal conviction

Answer 127

- The “duty of care” usually has the same meaning as in the tort of negligence – duty of care owed to anyone who may foreseeably be harmed by your actions, - e.g. Driver owes a duty of care to other road users; Doctor owes a duty of care to a patient.

Answer 128

- If D has done something (or not done something) and their conduct falls far below that of an ordinary person, the duty is breached - Professional defendant expected to live up to the standard expected of a reasonable professional in their position

Answer 129

- Objective requirement: it does not need to be shown that D realised that there was a risk of death. It just needs to be shown that a reasonable person in D’s position would have realised. - The jury must be satisfied that the breach of duty involves an obvious and serious risk of death

Answer 130

- The prosecution must prove that the defendant caused the victim to die

Answer 131

The breach was so gross as to justify a criminal conviction.

Answer 132

- Actus reus: the prosecution must prove that D caused V to die. - Mens rea: D was reckless as to the risk of serious harm or death to V.

Answer 133

Unlawfully causing death of a human being

Answer 134

Intention to kill or cause GBH

Answer 135

- Sentence for murder is currently a mandatory sentence of life imprisonment - A tariff will be set, i.e. the minimum term to be served - On expiry of the tariff, D will continue to serve time in prison unless and until the Parole Board considers D to be no longer a danger to the public - Once released from prison, D will remain ‘on licence’ for the rest of their life

Answer 136

- Whole life orders are reserved for the most serious cases of murder. The offender will spend the rest of their life in prison

Answer 137

- “Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum natura under the king’s peace, with malice aforethought, either expressed by the party or implied by law

Answer 138

 No valid defence, e.g. self defence or defence of another  Can the defence of necessity be relied on? Sometime in specific cases

Answer 139

- The prosecution must establish that but for the defendant’s act or omission, the death would not have occurred

Answer 140

- D’s conduct needs not be the sole cause of death, but it must make a significant contribution to the death of the victim - A novus actus interveniens can break the chain of causation

Answer 141

- V must be a human being - Not usually an issue, but can arise at each of the ends of the spectrum of life

Answer 142

Once the child has completely left the mothers womb and has lived outside the womb, it is capable of being a victim of murder the child is ‘in being’ even if the umbilical cord has not been cut

Answer 143

- Where D kill kills an enemy combatant during times of war, he has a defence to a charge of murder.

Answer 144

- This rule was abolished by the Law Reform (Year and a Day Rule) Act 1996, due to medical advances, e.g. life-support machines can keep a person alive for longer than a year and a day after D’s conduct). - However, where the death occurs 3 years after the act or omission of the defendant, the permission of the Attorney General must be sought for a prosecution for murder to be brought (s.2 Law Reform (Year and a Day Rule) Act 1996).

Answer 145

1) express malice—intention to kill; 2) implied malice—intention to cause GBH

Answer 146

A person's aim or purpose

Answer 147

 Requires the defendant to foresee the consequences of his actions as virtually certain to occur

Answer 148

1) desires and foresees the death of V; or 2) desires and foresees that V will suffer GBH; or 3) does not desire the death of V but foresees it as virtually certain to occur; or 4) does not desire to cause V GBH but foresees it as virtually certain to occur.

Answer 149

Currently no defence of 'mercy killing'

Answer 150

 Intention to cause fear of serious harm, including disease transmission  Victim obviously vulnerable due to age, personal characteristics or circumstances  Prolonged/ persistent assault  Use of substantial force  Strangulation/ suffocation/ asphyxiation  Threatened or actual use of weapon or weapon equivalent*  Leading role in group activity

Answer 151

 Lesser role in group activity  Mental disorder or learning disability, where linked to the commission of the offence  Excessive self defence  All other cases not captured by category A factors

Answer 152

- In assessing the level of harm, consideration should be given to: the number of injuries; severity of injury and pain suffered; duration or longevity of any psychological harm or distress caused

Answer 153

- Category 1  More than minor physical or psychological harm/distress - Category 2  Minor physical or psychological harm/distress - Category 3  No/very low level of physical harm and/or distress

Answer 154

- Previous convictions - Offence committed whilst on bail - Offence motivated by, or demonstrating hostility based on any of the following characteristics or presumed characteristics of the victim: disability, sexual orientation or transgender identity - Offence was committed against person providing a public service, performing a public duty or providing services to the public

Answer 155

- No previous convictions or no relevant/recent convictions - Remorse - Positive character and/or exemplary conduct (regardless of previous convictions) - Significant degree of provocation - Age and/or lack of maturity (which may be applicable to offenders aged 18-25) - Mental disorder or learning disability, where not linked to the commission of the offence - Sole or primary carer for dependent relative(s) - Determination and/or demonstration of steps taken to address addiction or offending behaviour - Serious medical conditions requiring urgent, intensive or long-term treatment - Pregnancy, childbirth and post-natal care - Difficult and/or deprived background or personal circumstances - Prospects of or in work, training or education

Answer 156

- Conduct amounting to theft can include: shoplifting, picking someone’s pocket - But can also potentially be theft if:  The true owner gives the property to the defendant  D finds the item  D does not leave the premises where they have taken the goofs; or  D borrows the item

Answer 157

1. Appropriation (actus reus) 2. Property (actus reus) 3. Belonging to another (actus reus) 4. Dishonesty (mens rea) 5. Intention permanently to deprive (mens rea)

Answer 158

- Section 3(1) Theft Act 1968: “Any assumption by a person of the rights of an owner amount to an appropriation”. - The ‘rights of an owner’ may include rights such as the right to sell property, hire it out, give it away, lend it, mortgage it, damage it, destroy it, or throw it away

Answer 159

- “‘Property’ includes money and all other property, real or personal, including things in action and other intangible property”.

Answer 160

- “Property shall be regarded as belonging to any person having possession or control of it or having in it any proprietary right or interest …”.

Answer 161

- Dishonesty - Section 2 of the Theft Act 1968 does not define dishonesty. It states three situations when D is not dishonest, if he appropriates property in the belief that: (a) he has in law the right to deprive the other of it, or (b) he would have the other’s consent if the other knew, or (c) the person to whom the property belongs cannot be discovered by taking reasonable steps. - Phrased in terms of D’s actual belief, so provided the jury is satisfied that D had that belief, he is not dishonest.

Answer 162

- Ivey v Genting Casinos (UK) Ltd., [2017] UKSC 67 (civil case and obiter); and - R v Barton, [2020] EWCA Crim 575 (Court of Appeal adopted Ivey reasoning). Barton/Ivey test

Answer 163

- “A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force”.

Answer 164

- Indictable only, max sentence of life imprisonment

Answer 165

Theft + force or the threat of force + Immediately before or at the time of stealing and in order to steal = robbery

Answer 166

- Theft is part of the offence - No theft = no robbery - All elements of theft must be present along with the force in order for robbery to take part

Answer 167

- Indictable only. Maximum sentence of life imprisonment

Answer 168

- Prosecution will need to prove an assault and that this was done with the intention to rob - It will be charged where the defendant does not actually commit theft but does assault the victim while attempting to steal.

Answer 169

receive, undertake, assist, or arrange for the retention, removal, disposal or realisation of goofs which are stolen by, or the benefit of, another person

Answer 170

: proof of dishonesty AND knowledge or belief that goods are stolen

Answer 171

A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen goods he dishonestly receives the goods, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so”.

Answer 172

“money and every other description of property except land, and includes things severed from the land by stealing

Answer 173

- Usually triable either way (Magistrates or Crown Court) - Indictable only (Crown Court only) in some circumstances - Maximum penalty for non-domestic burglary is 10 years imprisonment - Maximum penalty for burglary of a dwelling is 14 years imprisonment - Section 314 Sentencing Act 2020: minimum 3 years custodial sentence for third qualifying domestic burglary

Answer 174

Burglary with intent Burglary after having entered a building

Answer 175

1) A person is guilty of burglary if – (a) he enters any building or part of a building as a trespasser and with intent ot commit any such offence

Answer 176

 (1) A person is guilty of burglary if - …(b) having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm

Answer 177

- A B, on the ___ day of ___, 20_, entered as a trespasser a building [or “part of a building”], being a dwelling, known as ___, with intent to steal therein [or “to inflict grievous bodily harm on C D, a person therein”] [or “to do unlawful damage to the said building”].

Answer 178

- A B, on the ___ day of ___, 20_, having entered as a trespasser a building [or “part of a building”], being a dwelling known as ___, stole therein _____ and £___ in money [or “attempted to steal therein”] [or “inflicted grievous bodily harm upon C D, a person therein”].

Answer 179

 Stealing (theft)  Inflicting GBH  Unlawful damage to the building/anything in the building (i.e. Criminal damage)

Answer 180

- D must enter (part of) the building as a trespasser. (no need to show intent at this time) - Must be shown that D then went on to:  Commit GBH; or  Attempt GBH; or  Steal; or  Attempt to steal

Answer 181

- Entry - A building / part of a building - As a trespasser - Awareness of being a trespasser - AND EITHER - S.9(1)(a) – intent to commit certain offences on entry to the building - OR - S.9(1)(b) – commission/attempted GBH or stealing

Answer 182

Building’ includes offices, factories and outbuildings, as well as domestic properties/homes - ‘Building’ includes vehicles or vessels as long as they are inhabited (s.9(4)TA 1968)

Answer 183

- D only needs to enter part of a building as a trespasser. E.g. Private office within a public building. - The jury may sometimes need to determine whether part of a building is sufficiently segregated to amount to a distinct “part of the building”.

Answer 184

- Burglary from a dwelling is more serious - Not normally dwellings: warehouse, factory, garden shed, car. BUT could still be a dwelling if someone has made it their home (not just occasionally sleeping there).

Answer 185

- (1) A person is guilty of aggravated burglary if he commits any burglary and at the time has with him any firearm or imitation firearm, any weapon of offence, or any explosive, and for this purpose

Answer 186

- Indictable only. Max sentence of life imprisonment

Answer 187

Weapon of offence” can include an otherwise ordinary item, if intention of D is to use it to cause injury or incapacitate someone (at some point in time).

Answer 188

- Timing of when D needs to have the weapon/firearm, etc  For s.9(1)(a) it must be in D’s possession at the time of entry  For s.9(1)(b) it must be in D’s possession at the time the further offence is committed/attempted

Answer 189

- (1) A person commits an offence if– (a) he is a trespasser on any premises, (b) he intends to commit a relevant sexual offence on the premises, and (c) he knows that, or is reckless as to whether, he is a trespasser. - (2) In this section–  “premises” includes a structure or part of a structure;  “relevant sexual offence” has the same meaning as in section 62;  “structure” includes a tent, vehicle or vessel or other temporary or movable structure. - Irrelevant whether or not the sexual offence is actually committed. - Not just buildings – can be trespass on any land.

Answer 190

- Section 1 Fraud Act 2006: - (1) A person is guilty of fraud if he is in breach of any of the sections listed in subsection (2) (which provide for different ways of committing the offence). - (2) The sections are— - (a) section 2 (fraud by false representation), - (b) section 3 (fraud by failing to disclose information), and - (c) section 4 (fraud by abuse of position).

Answer 191

Fraud by false representation Fraud by failing to disclose information Fraud by abuse of position

Answer 192

False representation - ten years Failing to disclose info - 10 years Abuse of position - 5 years

Answer 193

- Fraud is a conduct crime (D does something) - Fraud is not a result crime (e.g. D caused V to give D something by a deception) - In a case of fraud, the prosecution does not have to prove D caused a particular result

Answer 194

Knowledge Intention Dishonesty

Answer 195

1. Knowledge that the representation was false  Not enough to show that D ought to have known that what they were saying was untrue

Answer 196

2. Intention to make a gain, or cause a loss or expose another to a risk of loss

Answer 197

3. Dishonesty  Same test of dishonesty as in theft (Ivey/Barton test)  But the exceptions set out in s.2 Theft Act 1968 (when D would not be dishonest) don’t apply to fraud.

Answer 198

- Section 3 of the Fraud Act 2006: - “A person is in breach of this section if he— - (a) dishonestly fails to disclose to another person information which he is under a legal duty to disclose, and - (b) intends, by failing to disclose the information— - (i) to make a gain for himself or another, or - (ii) to cause loss to another or to expose another to a risk of loss”.

Answer 199

D fails to disclose to another person information which he is under a legal duty to disclose

Answer 200

Dishonestly, and intends by the failure – to make a gain for himself or another; or to cause loss to another or to expose another to a risk of loss

Answer 201

- 1. Intention to make a gain or cause a loss, or expose V to the risk of loss - 2. Dishonesty - No additional requirement that D know/ought to know that they are under legal duty to disclose information

Answer 202

- Section 4(1), Fraud Act 2006: - “A person is in breach of this section if he— - (a) occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person, - (b) dishonestly abuses that position, and - (c) intends, by means of the abuse of that position— - (i) to make a gain for himself or another, or - (ii) to cause loss to another or to expose another to a risk of loss”.

Answer 203

D, while occupying a position in which he is: expected to safeguard; or not act against, the financial interests of another person, by act or omission abuses that position

Answer 204

Dishonestly, and intends by means of the abuse of position— to make a gain for himself or another; or to cause loss to another or to expose another to a risk of loss.

Answer 205

D, by an act, obtains services for himself or another. the services are made available on the basis that payment has been, is being, or will be made for or in respect of them; and he obtains them without any payment having been made for or in respect of them or without payment having been made in full

Answer 206

D acts dishonestly. knowing either that the services are being made available on the basis that payment has been, is being, or will be made for or in respect of them or that they might be being made available on that basis; and intends that payment will not be made, or will not be made in full

Answer 207

1. The basic offence “Simple criminal damage”: s. 1(1) CDA 1971 2. The aggravated offence “Destroying or damaging property with intent to endanger life”: s.1(2) CDA 1971. 3. The basic offence by fire “arson”: s.1(3) CDA 1971. 4. The aggravated offence by fire “aggravated arson”: s.1(3) CDA 1971.

Answer 208

- Simple criminal damage and arson are triable either way - If value of the damage is less than £5000, the case must be tried summarily max 3 months imprisonment/fine up to £2500 (unless damage by fire) - The aggravated form is indictable only, max sentence life imprisonment - In 2022, special provision brought in for damage to a memorial, so not limited to summary trial where damage under £5000 - Even if damage to a memorial is under £5000, can still be tried on indictment – max 10yrs imprisonment.

Answer 209

The defendant without lawful excuse, destroys or damages, property, belonging to another

Answer 210

Defendant does so intentionally or recklessly

Answer 211

Its a question of fact and degree Damage does not need to be permanent. It can include temporary harm, or impairment of the value/usefulness of the property If the owner incurs expense to restore property to its previous condition, a jury could conclude that criminal damage has been caused

Answer 212

- Applies to tangible property - Excludes intangible property and things in action - Applies to land - Excludes mushrooms growing wild on any land or flowers, fruit, or foliage of a plant growing wild on any land

Answer 213

honest belief D had the consent of the owner of the property, or would have had the consent of that person to destroy or damage the property, had D known of the circumstances. D will have lawful excuse if D acted in order to protect property in the honest belief it was in immediate need of protection and that the means of protection adopted were or would be reasonable having regard to all the circumstances.

Answer 214

- Arson is criminal damage by fire – s.1(3) CDA 1971 - A defendant will be guilty of arson if D commits an offence of criminal damage under either s.1(1) or s.1(2) CDA 1971 by fire. - Simple criminal damage by fire is charged under s.1(1) and s.1(3) CDA 1971. - Triable either way - Aggravated criminal damage by fire is charged under s.1(2) and s.1(3) CDA 1971 - Indictable only

Answer 215

 Network security and resilience  Wi-Fi on transport  Emergency services – critical communications and emergency alerts

Answer 216

 Fraud, including robo-calling campaigns and live calls to harvest personal information and/or trick people into transferring money