Criminal Law (Underlying) Flashcards
What are the key elements of criminal liability?
Actus Reus
Mens Rea
Absence of Valid Defence
What is a result crime?
D must cause a particular result.
For example, murder, criminal damage, ABH
Causation is part of the actus reus of result crimes
What aspects of causation must be proved for a result crime?
Factual Causation - the acts/omissions were factually the cause of the consequence
and
Legal Causation - the acts/omissions were a legal cause
What is the factual causation test?
But for the acts or omissions of the accused, the consequences would not have occured as they did
What is the test for legal causation?
Is Ds act the operating and substantial cause of the prohibited consequence?
When proving legal causation, what are the five ‘novus actus interveniens’ and what effect do they have?
- Medical Negligence
- Acts of third parties
- Acts of the victim
- Thin skull rule
- Natural events
… Could break the chain of causation
Will medical negligence break the chain of causation?
The courts are reluctant to allow medical malpractice to break the chain of causarion
It will only break the chain if the negligent treatment is so independent that they regard the defendants contribution as insignificant.
When will the acts of a third party break the chain of causation?
Only if the acts of the third party are free, deliverate and informed.
For example, a police officer returning fire and killing a hostage is part of self-presservation and therefore not free and deliberate.
What are the three situations whereby the acts of the victim could potentially break the causal chain?
- Fright and Flight Cases
- Refusing Medical Treatment
- Suicide
When will a victim break the causal chain due to their ‘fright and flight’ ?
If the escape/response of the victim was reasonably forseeable, the chain will not be broken.
If the response is not reasonably forseeable, there will be no legal causation.
When asking what is forseeable, the jury take the knowledge the defendant had at the time of the act, and consider characteristics visible to a reasonable man.
For example, jumping out of a car where the driver was making unwanted sexcual advances did not break the chain and D was convicted of ABH
When will a victim refusing medical treatment, resulting in their death, break the chain of causation?
Very unlikely to be a novus actus interveniens. Following cases….
- JW refused to have a blood transfusion on religious grounds and died - D convicted because you must take your victim as you find them including mind and body.
- A surgeon advised a victim to have a finger amputated. They refused and weeks later died of indection. The court held D was still responsible ebcause it doesn’t matter whether the wound is instantly mortal or becomes a cause following refusal of treatment
Will a victims suicide break the chain of causation?
Suicide will not break the chain of causation if
- Ds unlawful act was a significant and operating cause of death; AND
- At the time of the attack, it was reasonably forseeable that the victim would bie by suicide as a result of the injuries
Applying this, it may break the chain if…
- The injuries inflicted by D have healed but the victim commits suicide anyway
- It was a voluntary, informed decision of the victim
What is the thin skull rule?
A person inflicting harm cannot escape liability if the victim, owing to some pre-existing infirmity, suffers greater harm that would ahve been expected
You take the victim as you find them
For example, you cannot escape liability because someone dies from a heart abnormality simply because you didn’t expect them to suffer from such a condition
When will a natural event break the chain of causation?
Onyl if the event is extraordinary and not reasonably forseeable
For example, if you knock V unconscious and leave her on a beach, the fact a tide comes in and drowns her is reasonably forseeable. However, if you were in the UK and knocked someone unconscious, and a once in a lifetime hurricane kills her, that could be an intervening event.
What is the general rule about omissions?
A defendant cannot be criminally liable for a failure to act as there is no general duty to prevent harm
What are the 6 circumstances whereby failure to act may give rise to criminal liability?
- Statutory Duty
- Special Relationship
- Voluntary Assumption
- Contractual Duty
- Creating Dangerous Situation
- Public Office
When will a special relationship allow for criminal liability for an omission?
Relationships such as….
* Doctors and Patients
* Parents and Children
* Spouses
…. In Hood D (husband) failed to summon medical help for his wife who fell. Liability arose from their marriage.
What is the consequence of a person voluntarily assuming a duty towards another and then failing to act?
The law helds a person who voluntarily assumes a duty liable if they fail to carry it out.
For example, if you undertake to care for an ailing relative, a duty arises. If they die due to neglect, the omission can give rise to liability (e.g. manslaughter)
An employee is tasked with operating the train level crossing gates. He fails to do so, causing a crash and killing 10 people
How is he liable for the omission?
A duty can be owed via a contractual duty (e.g. the employment contract)
When will the creation of a dangerous situation give rise to criminal liability in the context of omissions?
If D creates a dangerous situation (e.g. starting a fire) they have to take reasonable steps to counteract the danger (e.g. extinguish the fire)
The steps need to be reasonable - they need not risk their own life but ought to summon help, warn occupants of the house etc….
If someone inadvertently sets into motion a chain of dangerous events, and beocme aware of what is happening, omission to prevent further damage and danger can become a criminal offence
What is direct intent?
The consequence is what D aims to happen - it is the purpose and objective.
This is a subjective test - what did D aim to do? Does D want to achieve injury?
What is oblique intent?
The conseqeucne is not Ds purpose but a side effect that D accepts as an inevitable or certain consequence. It need not be desired and may even be incidental.
It is rare to use and can only be raised where intention is the mens rea - it cannot be used if recklesness is an option - limited to s.18 OAPA and murder.
Where the charge is murder and direct intention is insufficient, the jury should be given a Woollin Direction…
“They are not entitled to find the necessary intention unless they feel sure that the death or serious bodily harm was a virtual certainty as a result of the defendants actions and the defendant appreciated that such was the case”
What is recklessness?
- D does not intend to cause a harmful result
- However, D forsees a risk of harm and goes ahead with the act anyway; and
- In the circumstances known to D, it was an unreasonable risk to take
Can D be liable of a criminal offence if the mens rea forms during the actus reus (not before?)
Yes, by virtue of the continuing act theory (Fagan)
You need the mens rea at some time during the continuance of the act
What is the doctrine of transferred malice?
It doesn’t matter if D intends to kill X but misses and kills Y > the mens rea against X tranfers to allow it for Y.
The doctrine has been used for murder, manslaughter and OAPA (s.18/20)
It CANNOT be used for an offence with different mens rea. If D intends to hurt a crowd by throwing rocks but misses and smashes a window, transferred malice will not assist where D has mens rea for one crime (intention to injure) and the actus reus for another (criminal damage)
What is the definition of murder?
It is a common law offence defined as “unlawful homicide with malice aforethought”
What are the four components to the actus reus of murder?
- Unlawful
- Killing
- Of a Human Being
- Under the Kind’s Peace
When will a killing not be unlawful so as to fall outside the scope of murder?
- Killing an enemy solider in battle
- For the advancement of justice (e.g. in countries with the death penalty - not UK)
- Self-Defence
What is the causation requirments for murder?
Factual - But for the acts/omissions of D, V would not have died
Legal - Ds act was the substantial cause of the prohibited har,
Is it possible to murder a corpse?
No
Death occurs at the moment a brain dies.
Is it possible (for the offence of murder) to ‘murder’ a child in the womb?
The child muyst be fully expelled from the mother and be born alive.
However, it is not encessary for the umbilical cord to have been cut.
For example, stabbing a preganant laby in the abdonmen, causing a child to be born prematurley and die cannot be murder since, when stabbed, the child was not a living person.
What is the mens rea for murder?
Malice Aforethought meaning…
(a) Intention to Kill; or
(b) Intention to cause GBH (serious harm)
If Ds aim/purpose is not death or GBH, juries are only entitled to find oblique intention if death or serious injury was a virtual certainty and D appreciated that.
What is diminished responsibility and when can it be used?
It is a partial defence that can only be used as a defence to murder.
If successful, D is not acquitted but convicted of voluntary manslaughter - avoiding the mandatory life sentence.
What is the burden (and on whom does it fall) to show diminished responsibility?
The burden is on the defence to prove on the balance of probabilities D was acting under diminsihed responsibility
Is diminished responsibility available as a partial defence to a charge of attempted murder?
No.
It does not apply to attempted murder
What are the four elements of diminished responsibility?
- Abnormality of Mental Functioning
- Arising from Recognised Medical Condition
- Having substantially impaired D ability to understand the nature of the conduct
- Provide an explaination for Ds conduct
What constitutes an abnormality of mental functioning for diminished responsibility?
A state of mind so different from an ordinary human that the reasonable man terms it abnormal
However it must be CAUSED by a recognised medical condition
It is not enough to be suffering from an abnormality and have a condition- it has to be caused by the condition. Hatred, jelousy, temper are insufficient.
Can intoxication constitute a recognised medial condition for diminished responsibility?
Voluntary intoxication alone is unsufficient
However, Alcohol Dependency Syndrone (ADS) is a medically recognised condition
For diminished responsibility, what must the abnormality of mental functioning caused by a recognised medical condition, substantially impair?
To impair Ds ability to. do one or more of the following…
- Understand nature of Ds conduct
- Form rational judgment
- Exercise self-control
What is the defence of loss of control and what are the three elements?
It is a partial defence to murder that reduced it to voluntary manslaughter.
The three requirments are…
* D lost self-control
* D acted as a result of a qualifying trigger
* A normal person might have done the same
Unlike Diminished responsibility, on whom does the burden of proof rest for the defence of loss of control?
Once the issue is raised, the burden rests on the prosecution who need to prove that only one of the components is absent for the defence to fail (e.g. a normal person would not have done the same thing)
What constitutes ‘loss of self control’ for the partial defence of loss of control?
- D must be unable to restrain themselves.
- A mere loss of temper is insufficient
- It need not be sudden
- The defence is lost if acting out of revenge
What are the two qualifying triggers for the defence of loss of control?
- Fear Trigger > D must act due to a fear of serious violence - covering situations where D may be justified using foce but the level is unreasonable so as to prevent self-defence; or
- Anger Trigger > Things said or done that constitute circumsatnces of a grave nature cause D to have a jurisifiable sense of being seriously wronged
When is the ‘loss of control’ anger trigger unavailable?
- If D incited the thing said/done as an excuse to use violence; or
- If the thing said/done constituted sexual infidelity
What is the ‘normal person test’ when considering the defence of loss of control
Might a normal person have acted similarly in the situation?
- The normal person will have ordinary powers of tolerance and restraint
- The jury must exclude characteristics such as temper, intoxication, extreme sensitivity, PTSD and personality disorder
However, is a mental disorder has relevance, it can be taken into account only when the jury consider the magnitute and gravity of the qualifying trigger to a person in Ds circumstances
What impact does intoxication have on murder?
Even though intoxicated, did D form the mens rea of intention to kill or cause GBH?
A drunken intent is still intent
What impact does intoxication have on the defence of loss of control?
An intoxicated person is not precluded from using the defence.
Ds alcohol/drug addiction can be taken into account when considering the gravity of the qualifying trigger if D was taunted about the addiction
Likewise, if D is addicted to drugs or alcohol this will be a characteristic given to the normal person but the normal person will still have normal levels of tolerance and self-restraint and be sober
Can voluntary intoxication found the defence of diminished responsibility?
On its own, voluntary intoxication is insufficient.
If D has an abnoormality of mental functioning and is voluntarily intoxicated, the AMF must provide the explaination for the conduct, not alcohol alone. However, DR can still be made out if alochol is another reason - AMF needs to be a cause, not the only cause.
If Ds AMF arises from alcohol dependency syndrome, that is sufficient.
What is unlawful act manslaugthter?
The accused lacks the mens rea for murder but kills someone in the course of intentionally committing an unlawful act
For Unlawful Act Manslaughter, need the criminal act be serious?
No. The unalwful act need not be serious - it could be common assault.
Is recklessness or negligence sufficient for unlawful act manslaughter so that a lawful act committed recklessly sufficer?
For example, driving recklessly therby killing a pedestrian?
No - the unlawful act cannot be become unlawful due to negligent or reckless performance. It must intrinsically be unlawful.
Further, an omission is insufficient.
For example, driving recklessly therby killing a pedestrian?
When will an act be ‘dangerous’ so as to establish Unlawful Act Manslaughter?
An objective test asks if a reasonable person would recognise that the act would subject the vitim to at lease the risk of some physical harm, albeit not serious harm.
If D directly administers drugs to V (e.g. a syringe) can this be unlawful act manslaughter?
Yes
How do the courts treat cases whereby D supplies drugs to V but V administers the drugs themselves?
If the victim is deceived or unaware they are taking drugs, this could be contrary to s.23 OAPA and form a conviction of UAM
However, if the deceased is aware - they are fully informed and a responsible adult, this cannot constiute UAM
What are the requirments of gross negligence manslaughter?
- Existence of a duty of care
- Breach of duty
- Breach causes death
- There was a risk of death
- The breach was grossly negligent
For gross negligence manslaughter, is a positive act required?
No. Omission is sufficient if the omission breaches a duty
Can there ever be a duty of care between parties to a criminal enterprise for gross negligence manslaughter?
Yes - it has been held that a lorry diriver smuggling 58 immigrants who were suffocated had a duty of care towards them even if such a duty would not exist in tort due to the principle of ex turpi causa non oritur actio
What is the test for ‘risk of death’ when assessing gross negligence manslaughter?
There must be an obvious and serious risk not merely or injury or even serious injury but of death
For example, in the case of an optometrist who failed to spot a condition that led to death, CA held that the test is whether a competent optometrist would have seen an obvious and serious risk of death at the time of breach. Held that they would not since only a mere possibility of risk was insufficient.
When can an act be ‘grossly negligent’?
Case law has held breaches to be gross in a variety of situations…
- D responsisble for a series of acts/omissions
- A signle devestating act so serious
- Mistakes that are part brought about by misteks of others (sometimes reason for not convicting)
What are the requirments for common assault?
Intentionally or recklessly causing V to apprehend immediate and unlawful personal violence
- Apprehension = expect or anticipate immediate unlawful violence.
- Words alone and silence are sufficient
- However, words can negate an assault (e.g. be quiet, and I won’t hurt you)
- Immediare can be immediate future or imminent (e.g. sufficient if you fear someone could turn up at your house at any point in the coming hours)
- When considering personal violence, all the victim has to anticipate is an unwanted touch.
What does apprehension require for assault?
- D must cause V to believe D can and will carry out the threat of force
- If V does apprehend the threat, it is irrelevant that D does not have any means to actually carry it out
- Physical gestures, words and silence can cosntitute assault
- However, words to the effect of negating assault, implying that no physical action would be taken, can negate an assault
What is the mens rea of assault?
Basic Intent Crime - intention or recklessness will suffice
What is battery?
An intentional or reckless application of unlawful force
What are the components of the actus reus of battery?
Battery is unwanted touching, inflicted either directly, indirectly or by omission.
It must be unlawful (e.g. not done with consent or in self-defence) and not implied consent to everday contact.
Force need not be hostile - the mearest touch is sufficient.
Can a touch of a persons clothes whilst weating them constitute battery?
Yes - even a touch over clothes
How can an omission constitute battery?
If you create a danger that fails to be averted.
For example, police officer asks if D has any needles on his body prior to a search. D says no and D pierces himself on a needle = battery
Can force constitute battery if applied indirectly (e.g. throwing a stone)
Yes - it need not be direct force.
For example, turning the lights out and causing a scare leading to victims falling is sufficient to constitute battery
What is the mens rea of battery?
Intention or recklessness
(Basic Intent)
What is ABH (s.47) ?
D must cause an assault occassioning actual bodily harm.
The mens rea is that of assault/battery - intention or recklessness to cause V to apprehend unlawful immediate violence, or to apply unlawful force
What does ‘occasioning’ require for ABH?
The assault or battery must actually result in actual bodily harm
Not simply a fear of harm, or a touching.
The injury need not be permanent but it should not be so trivial so as to be insignificant.
Can loss of consciousness constitute ABH?
Yes, applying T v DPP
If it involves an injurious impairment of sensory functions, ABH can be made out.
Does ABH need to pierce any skin?
When is harm too trivial?
No skin needs to be pierced.
Cutting off hair (dead tissue) is sufficient for ABH since it is still part of the body.
Chan-Fook extended ABH to include psychiatric injury - however, it does not include ‘mere emotion’ such as fear or panic - it must be clinical
