Criminal Law (Underlying) Flashcards
1
Q
What are the key elements of criminal liability?
A
Actus Reus
Mens Rea
Absence of Valid Defence
2
Q
What is the direction/test for gross negligence manslaughter?
A
Whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount to a criminal act or omissionsection 5(4) Theft Act 1968.
3
Q
What question does the jury ask in cases of voluntary intoxication>
A
In cases of voluntary intoxication, a jury should consider whether the defendant would have seen the risk had he not been intoxicated.
4
Q
What is a result crime?
A
D must cause a particular result.
For example, murder, criminal damage, ABH
Causation is part of the actus reus of result crimes
5
Q
What is the correct standard of proof that the jury must apply when determining the defendant’s guilt and the validity of the self-defence claim?
A
The prosecution must prove the defendant’s guilt beyond reasonable doubt
The defendant must raise enough evidence to suggest self-defence applies, and then the prosecution must prove beyond reasonable doubt that it does not.
In other words, once the defence raises the possibility of self-defence, the prosecution must disprove it beyond reasonable doubt for the jury to convict the defendant.
6
Q
What aspects of causation must be proved for a result crime?
A
Factual Causation - the acts/omissions were factually the cause of the consequence
and
Legal Causation - the acts/omissions were a legal cause
7
Q
What is the factual causation test?
A
But for the acts or omissions of the accused, the consequences would not have occured as they did
8
Q
What is the test for legal causation?
A
Is Ds act the operating and substantial cause of the prohibited consequence?
9
Q
When proving legal causation, what are the five ‘novus actus interveniens’ and what effect do they have?
A
- Medical Negligence
- Acts of third parties
- Acts of the victim
- Thin skull rule
- Natural events
… Could break the chain of causation
10
Q
Will medical negligence break the chain of causation?
A
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.
11
Q
When will the acts of a third party break the chain of causation?
A
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.
12
Q
What are the three situations whereby the acts of the victim could potentially break the causal chain?
A
- Fright and Flight Cases
- Refusing Medical Treatment
- Suicide
13
Q
When will a victim break the causal chain due to their ‘fright and flight’ ?
A
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
14
Q
When will a victim refusing medical treatment, resulting in their death, break the chain of causation?
A
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
15
Q
Will a victims suicide break the chain of causation?
A
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
16
Q
What is the thin skull rule?
A
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
17
Q
When will a natural event break the chain of causation?
A
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.
18
Q
What is the general rule about omissions?
A
A defendant cannot be criminally liable for a failure to act as there is no general duty to prevent harm
19
Q
What are the 6 circumstances whereby failure to act may give rise to criminal liability?
A
- Statutory Duty
- Special Relationship
- Voluntary Assumption
- Contractual Duty
- Creating Dangerous Situation
- Public Office
20
Q
When will a special relationship allow for criminal liability for an omission?
A
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.
21
Q
What is the consequence of a person voluntarily assuming a duty towards another and then failing to act?
A
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)
22
Q
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
A duty can be owed via a contractual duty (e.g. the employment contract)
23
Q
When will the creation of a dangerous situation give rise to criminal liability in the context of omissions?
A
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
24
Q
What is direct intent?
A
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?
25
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"
26
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
27
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
28
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)
29
What is the definition of murder?
It is a common law offence defined as "unlawful homicide with malice aforethought"
30
What are the four components to the actus reus of murder?
* Unlawful
* Killing
* Of a Human Being
* Under the Kind's Peace
31
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
32
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,
33
Is it possible to murder a corpse?
No
Death occurs at the moment a brain dies.
34
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.
35
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.
36
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.
37
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
38
Is diminished responsibility available as a partial defence to a charge of attempted murder?
No.
It does not apply to **attempted** murder
39
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
40
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.
41
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
42
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
43
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**
44
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)
45
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
46
What are the two qualifying triggers for the defence of loss of control?
1. **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
2. **Anger Trigger** > Things said or done that constitute circumsatnces of a **grave** nature **cause D to have a jurisifiable sense of being seriously wronged**
47
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
48
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
49
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
50
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
51
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.
52
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**
53
For Unlawful Act Manslaughter, need the criminal act be serious?
No. The unalwful act need not be serious - it could be common assault.
54
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?
55
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.
56
If D directly administers drugs to V (e.g. a syringe) can this be unlawful act manslaughter?
Yes
57
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
58
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
59
For gross negligence manslaughter, is a positive act required?
No. Omission is sufficient if the omission breaches a duty
60
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
61
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**
## Footnote
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.
62
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)
63
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.
64
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
65
What is the mens rea of assault?
Basic Intent Crime - intention or recklessness will suffice
66
What is battery?
An intentional or reckless application of unlawful force
67
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.
68
Can a touch of a persons clothes whilst weating them constitute battery?
Yes - even a touch over clothes
69
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
70
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
71
What is the mens rea of battery?
Intention or recklessness
(Basic Intent)
72
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
73
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.
74
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.
75
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
76
What is the mens rea of OAPA s.47 (ABH)
No mens rea is required for the actual bodily harm
All that is needed is mens rea for assault or battery
77
What offence does s.20 OAPA create?
Malicious wouinding or infliction of GBH
D must (a) wound; or (b) inflict GBH, with an intent or recklessness as to causing **some** harm
78
What is the definition of 'wound' for s.20 OAPA?
There must be a break in the continuity of both layers of skin - dermis and epidermis
The rupture of blood vessels internally cannot constitute a wound.
79
What does the 'infliction of GBH' mean?
GBH is 'really serious harm'
Psychiatric injury can constitute GBH if it is sufficiently serious
80
What is the intention of s.20 OAPA?
D must intend or be reckless as to causing SOME harm
It need not be shown that D intended or could forsee the gravity of the harm actually caused. Minor harm is sufficient for mens rea.
81
What is s.18 of OAPA?
s.18 is like s.20 in that the actus reus is to wound or cause GBH. The difference is the mens rea....
**D must intend to cause GBH** (not just 'some' harm)
It is not enough to intend some harm not amounting to GBH. Likewise, it is not enought to be reckless as to the harm caused. However, the intention could be oblique.
82
What are some examples of harm held to be GBH?
* Permanent loss of sensory function
* Permeanant disability
* Broken bones
* Fractured Skull
* Substantial Blood Loss
83
What are the elements to basic criminal damage (s.1 CDA)
D **destroys or damages** property **belonging to another** without lawful excuse and does so **intentionally or recklessly.**
84
What constitutes damage?
* It need not be permanent (e.g removable pain/mud on walls)
* It can impair value and usefulness (e.g. temporarily blocking a toilet)
* To 'destroy' means the property ceases to exist
85
What constitutes property for CDA?
All tangible property including....
* Money
* Tamed Wild creatures
However, mushrooms, plans and shrubs growing on wild land cannot constitute property
The properrty must belong to another - for example, this limb is satisfied even if D is part-owner so long as there is a co-owner. Likewise, if the property is morgaged, since it belongs to the bank, D can damage his 'own' house
86
Where is arson charged under?
Both s.1 and s.3 CDA
The destruction or damage must occur by fire.
87
When will D NOT have committed criminal damage despite satisfying the elements of the offence?
| Hint - L.E
If D has a 'lawful excuse' per s.5(2)
There are two defences...
(a) D believes the owner would have consented; or
(b) D acts to protect their or another's property
88
D smashes a window thinking (in a drunken state) it was the house of his friend whom she was living with and that she wouldn't mind.
Is this an offence contrary so s.1 CDA?
No. s.5(2)(a) applies as a lawful defence since D thought V would consent even though this was a belief that may not have been reasonably held.
So long as it is a genuine belief!
89
When does s.5(2)(b) act as a lawful excuse to criminal damage?
Where D acts to protect their or another's property.
* D must act to protect property
* D must believe the property was in immediate need of protection (subjective test)
* D must believe the means adopted were reasonable (subjective test)
* The damage caused must be objectiely capable of protecting property
90
When will criminal damage constitute 'aggravated criminal damage' contrary to s.1(2) CDA?
D must destroy or damage property with an intention or recklessess as to both (a) the destruction/damage; and (b) as to the **endangerment of life by the damage/destruction**
Importantly no life *actually* needs to be endangered
91
What is the definition of theft?
D, with the intention to permanently deprive, dishonestly appropriates property belonging to another
Actus Reus - appropriation of property belonging to another
Mens Rea - Dishonestly, with intention to permanently deprive
92
What constitutes appropriation for theft?
Any assumption of the rights of an owner
For example, taking a product to the till and paying a lower price.
Any assumption of rights such as selling, hiring, giving away or destroying.
93
Can there be an appropriation with the consent of the owner?
Yes - D can appropriate property even with the consent of the owner.
| Gomez
94
What if D forms the mens rea later? Since there is no coincidence, can this be theft?
Yes, s.3(1) provides that it is theft if D comes by property (innocently or not) without stealing it and later assumpes a right by keeping or dealing with it as an owner.
For example, you accidentally leave a shop with an unpaid good. Rather than returning it, you keep it - s.3(1) operates to turn an innocent act into an appropriation
95
What if someone purchases goods in good faith and later discovers they were stolen goods? Does that person then become liable for theft due to s.3(1)?
s.3(2) exemts D from liability for theft if they keep the goods after finding out they were stolen.
96
Can land be stolen?
Generally land cannot be stolen, subject to the below:
D can be guilty of theft if they
* Are allowed to sell land but sell more than authorised
* Are a trespasser and removes a fence or lavender plant
* Are a tenant and removes/sells a greenhouse
97
When will D be guilty of theft of wild plants?
D will not be guilty of theft if they pick mushrooms, flowers, fruit or foilage from a wild plant
D will be guilty of theft if they pick the wild plant as a reward, to sell or for commercial purpose. Likewise, it is theft to uproot or cut parts of the plant, and to pick cultivated plants.
98
When will D commit theft of a wild animal?
D will not be guilty of theft of untamed animals, or/and animals not ordinarily kept in captivity
However, you can be guilty of theft of...
* Tamed animals
* Animals kept in captivity (e.g. zoo)
* Animals in the course of being reduced into possession (e.g. been trapped)
99
Aside from plans and wild animals, what other property cannot be stolen?
* Electricity
* Corpses and Body Parts unless in a hospital or given to blood banks or for teaching
* Confidential information
* Services
100
Can you steal abandoned property?
No. Property ceases to 'belong to another' when abandoned.
However, abandonment is rare.
Property is not abandoned just ebcause someone stopped searching for it. It depends on the intention of the owner.
101
Can you steal your own property?
Belonging to another is defined as 'possession and control'
If you give 'possession and control' to another, it is possible you could steal your own property
For example, you give your car to a local garage. You return and take the car without paying the bill. Since the car was in possession and control of the garage, the car 'did belong to another'
102
What if D is given property to use for a specific purpose but uses it differently - could this be theft?
Yes.
s.5(3) TA operates where D is under a legal obligation to use the property for a specific purpose. If used otherwise, this is theft
For example, D raises money for a charity. He uses the money for his own benefit. Under s.5(3) he appropriated the money when putting into his own bank.
103
What is the test of dishonesty for theft?
| Ivey v Genting etc...
Stage 1: Do any s.2(1) exceptions apply? D will NOT be dishonest if appropriating property in the genuine belief that (a) they have a right in law to deprive a person of the property; (b) D would have the others consent if they knew; or (c) the person to whom it belongned cannot be discovered by taking reasonable steps.
Stage 2: If (a) - (c) do not apply, ask whether D was dishonest per Ivey v Genting...
(i) What was Ds knowledge and belief as to facts?
(ii) Given that knowledge/beliefs, was D dishonest by the standards of ordinary decent people?
104
If D is willing to pay for the property, can they be convicted of theft?
Per s.2(2) a person willing to pay for property can still be liable for theft if they appropriated property dishonestly
105
Is there an ITPD if you sell the owner their own property?
Yes p s.6(1) covers situations where you steal and then offer them back to the owner
For example, steal from a shop and return for a 'refund' the next day
106
Is there an intention to permanently deprive in ransom cases
If ot can be shown that a condition can be met so as to ensure the return of the property, it is possible that an ITPD is NOT made out
107
Is there an Intention to Permanently Deprive if you treat the property in a manner that risks loss?
Yes - if you deal with it in a way that you know it could be lost, that is an ITPD
108
Can borrowing amount to theft if you intend to return the property?
Per s.6(1) borrowing or lending can amount to theft if the lending is for a period and in circumstances making it outright to taking or disposing of the property.
The question to ask is whether the intention was to return it **minus** all its goodness, virtue and practical value. If yes, this is the same as 'outright taking and disposal'
109
Can there be theft if you take property with the intention of replacing it with equivalent property?
Intending to return notes/coins of an equivalent value is not sufficient - it is theft!
Arguably this applies across the board - you can't take a pint of milk and intend to replace it like-for-like
110
What are the elements of robbery?
* Actus reus of **theft**
* **Use of Force or Threat of Force**
* Immediately before or at the time of stealing
111
What three ways can the 'force or threat of force' element of robbeery be satisfied?
* **Use** of Force
* **Puts** a Person in fear of being subject to force
* **Seeks** to put a person in fear of being subject to force
112
What is the difference betweern putting and seeking to put a person in fear for robbery?
Putting = no phsyical force is needed. It is enough the threat causes the fear
Seeking = D can be liable even if V is not aware they are being threatened with force, but D intends to make that person think they are being subject to force
113
What is the mens rea of robbery?
D must act with the mens rea of theft AND intend to use force in order to steal
114
When will D have committed burgalrly contrary to s.9(1)(**a**)
| Intent upon entry
* D entered as a **trespasser**
* Has the intention to commit an **ulterior offence**: (a) steal; (b) inflict GBH; (c) unlawfully damage property
The burglarly is committed at the point of entry - it matters not whether they do not go onto commit the ulterior offence.
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When will D have committed burgalrly contrary to s.9(1)(**b**)
* D entered as a trespasser; and
* Once inside, (a) steals or attempts to steal; or (b) inflicts or attempts to inflict GBH
The burglary is committed at the point of attempt or commission, not at the point of entry.
116
When does someone 'enter' for s.9(1)(a)
When any part of a persons body entered a buildinf.
A partial prescence is all that is required and it does not matter than D was not physically able to steal anything (e.g. stuck in the window)
117
When does D enter as a trespasser? Does it matter?
Yes, for burglarly it must be proved that a person entered a building (or part of a building) as a trespasser.
Where, at the time of entry, a person is not a trespasser - but later becomes one (e.g. exceeding permission) there can be no burglary
Simply, they cannot have consent to enter the building/part of a building
118
Can you be a trespasser if you only have permission to enter part of a building?
Yes
For example, D entered a shop lawfully with permission and entered the cash till area that he knew he had not permission to be in. Court held he was a trespasser of that part of the building .
119
What happens if your entry is in execess of authority? Are you a trespasser and therefore able to secure a conviction of burglarly?
Yes - if you enter a premises or part of a premises knowing you are in excess of permission given (or reckless as to it) then that is sufficient to be a trespasser
For example, D entered the home of his father and took a TV. This was burglarly because, despite having permission to enter the home, the entry was in excess of consent given.
120
What if the intention of D is to have a look inside the property and only steal something if they find something worth stealing? Is this an offernce contrary to s.9(1)(a)?
Yes - this is conditional intent
121
What is the difference between s.9(1)(a) and (b) for burglarly?
s9(1)(a) only requires intention to commit an ulterior offence at the point of entry (e.g. stealing, Gbh, damage...)
s9(1)(b) actually requires a theft or GBH to be attempted or committed. Note criminal damage is not included for s.9(1)(b)
122
When will D have committed **aggravated** burglarly contrary to s.10 TA?
* D must have committed burglarly under s.99(1)(a) or (b)
* D must have with them, at the time of the burglary, a **(a) firearm or imitation firear; (b) Weapon of offence; or (c) explosives**
Max sentence is life imprisonment - longer than the 14/10 years for s.9
123
What are the elements of Fraud by False Representation?
D **dishonestly** makes an express or implies representation that is **untrue and misleading** (e.g. overcharging for a service) with an intention to make a gain or cause a loss
124
What are the elements of Fraud by Failure to Disclose?
* There must be a legal duty to disclose (e.g. contractual duty, fiduciary relationship etc...)
* A failure to disclose information to another person
* Done so dishonestly; and
* An intention to make a gain or cause a loss
For example, a Dr contracts with an agency to inform them of any disciplinary hearings. He failed to disclose and was found guilty of s.3
125
What are the elements of Fraud by Abuse of Position?
* D must occupy a position which requires D to look after vs financial wellbeing (e.g. professional, or even familial)
* D abuses that position dishonestly, with an intention to make a gain or cause a loss
126
When will intoxication operate to negate mens rea?
* Any crime where it is **involuntary** (e.g. spiking)
* Intoxication caused by drugs taken voluntarily but in good faith pursuant to **medical treatement** and advice
* Intoxication caused by non-dangerous drugs taken voluntarily (e.g. not illegal or alcohol.... calpol)
* In crimes where a specific intent is required that cannot be committed recklessly
127
Whare are the three stages of questioning when determining if intoxication negates MR?
1. Is voluntarily or **involuntarily** intoxicated?
2. Is the intoxicant a dangerous drug + alcohol, or a **non-dangerous drug?**
3. Is it a crime of **basic intent or specific intent?**
128
For what offences is the defence of involuntary intoxication available?
Any offence
Basic and Specific Intent
129
If D is aware they are drinking alcohol but is mistaken as to the strength, is this involuntary intoxication?
No - Voluntary
130
When is a crime one of basic intent?
If it can be committed **recklessly**
This includes....
* Unlawful Act Manslaughter
* Gross Negligence Manslaughter
* s.20 Wounding/GBH
* Battery
* Assault
* Basic Criminal Damage
* Aggravated Criminal Damage
* Burglary under s.9(1)(b) where D causes GBH
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When is a crime one of specific intent?
Intention is the only form of mens rea - recklessness is insufficient
This includes....
* Murder
* Wounding/GBH s.18
* Theft
* Robbery
* Burglary s.9(1)(a)
* Burglary s.9(1)(b) where D steals, or attempts to cause GBH
* Attempts
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If D is intoxicated but formed the mens rea, is there criminal liability?
Yes - if MR is formed, a drunk intent is still an intent
133
If D is voluntarily intoxicated and commits a crime of basic intent, how do the courts deal with mes rea?
The question is whether D would have forseen the risk of harm IF SOBER.
If yes.... D will be criminally liable
If no... D will not be criminally liably
134
D is voluntarily drunk and throws stones at a window which smashes
When will he be criminally liable?
Since this is a crime of basic intent, D will be liable if they would have realised the risk of smashing the window had they been sober.
If, however, the window smashes because he tripped on if they were sober, they would not be liable.
135
If D is voluntarily intoxicated and commits a crime of specific intent (e.g. murder) what impact does intoxication have?
Intoxication is a defence to specific intent if the intoxication negages the mens rea
There is no need to consider the basic intent question of 'what would happen if sober' - the defence is available so long as d didn't actually form the necessary mens rea.
136
When is consent a defence to an offence against the person?
D will have a defence if V consented, or D honestly believed V consented to an act occasioning **assault or battery. **
If the offence is MORE than assault or battery, the court must ask whether D intended to cause ABH (or worse)...
If yes, consent is unavailable unless and exception applies,
If no, consent is available
137
Can a victim consent to ABH?
If D intended to cause ABH, consent is only available if D did not see the risk that ABH could be caused (e.g. they thought the act would not reach such a threshold)
If D did intend to cause ABH, consent is not a defence unless an exception applies (e.g. sports, horesplay etc...)
138
What are the exceptions to the general rule that consent can only be a defence to assault and battery?
A victim can consent to offences of ABH under the following situations...
* Medical Treatment
* Sports
* Horesplay
* Tatooing and Body Piercing
* Sexual Gratification
* Accidental infliction of Harm
139
What is the 'horesplay' consent exception?
Horesplay resulting in ABH + can give rise to the defence of consent
For example, some boys threw two boys in the air resulting in a spleen injury and broken bones. The rough undiciplied horesplay was a defence,
140
Is body modification (e.g. removal of a nipple or division of a tongue) an exception to the defence of consent?
No. Whilst tatooing and body piercing is, modifications such as removal and division is not according to R v BM
141
What is the law relating to consent and sexual gratification
It used to be that D could have a defence in consent to accidental injury during consensual sex.
However, s,71 Domestic Abuse Act means that a person cannot consent to harm resulting in ABH+ for the purpose of obtaining sexual gratification
An exception that STILL remains is of the risk of a sexually transmitted infection
142
Can you consent to the risk of contracting HIV or an STD?
It is possible consent to run the **risk**.
However, it is not possible to consent to deliberate HIV infection since that is GBH
143
What is self defence?
Covers a number of defences where D acts to protect themselves, other persons, property, or to prevent a crime.
The defence is a common law defence, sipplemented by statutory s.3 CLA
144
For self defence, when must the 'threat' occur to protect yourself, another or property?
It must be protection from imminent attack
145
Can self defence be used to prevent psychological harm?
No - Only physical
146
What is the test for using one of the self defence defences?
| Trigger > Response
* *Trigger*: D honestly believed that the use of **force was necesssary**; and
* *Response*: The **level of force** used was objectively reasonable in the circumstances as D believed them to be
147
If D mistakenly believes they are being attacked with a deadly weapon, can the self defence trigger be met?
Yes - it is immaterial if D is mistaken (e.g. in reality there was no deadly weapon) so long as D honestly believed the force was necessary
The trigger is subjective
148
Is a mistaken belief fue to voluntary intoxication sufficient to meet the self defence trigger?
No. A mistaken belief caused by voluntary intoxication means D cannot rely on their mistake to satisfy the self defence trigger
149
Is there a duty to retreat when considering self defence?
No - When D is attacked, failure to withdraw if an opportunity arises will not automatically disqualify the defence.
However, it may be considered as a relevant factor as to reasonableness of force (the response)
150
Can D make the first blow and still rely on self defence?
Yes - this is called 'aanticipatory self defence'
If D makes the first blow with the object of protecting himself, others, property against imminent apprehended attack, that is acceptable.
You do not need to wait for the assailant to strike the first blow.
151
Can self defence be used by an antagonist?
For example, D is the initial aggressor and V retaliates
Yes - it is available to a person who starts the fight if the person whom they attacked, not only defendds themselves but **goes over to the offensive** - out of proportion to what the original aggressor did
152
When could self defence be used against an innocent party?
Rare situations where D feels the need to protect themselves, others or property.
For example, a police officer bundling a passerby out of the way to get to a suspect he believed was about to commit a crime (e.g. detonate a bomb)
153
Once the self defence trigger has been satisfied, what constitutes the 'response' to decide if the defence is made out?
The jury must consider the level of force used.
The level must be objectively reasonable in the circumstances and danger as the defendant subjectively believed them to be
Reasonable Force is difference as between (a) non householder cases; and (b) hosueholder cases
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When is force used in self defence reasonable in non-householder cases?
Force will not be reasonable if dosproportionate.
* This is decided on the basis of what force would be proportionate in the danger and circumstances D thought (subjectively) he was face with
* The defendant can be mistaken as the the danger and this DOES NOT need to be reasonable
* Evidence of a person having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken
155
Who has the burden of proving/disproving self defence?
Once raised, it is for the prosecution to disprove that D acted in self defence.
156
What is the effect of self defence?
It is an all or nothing defence
D is either acquitted or the defence fails
157
What is a 'householder' self defence case?
The defendant...
* Act to protect themselves or another
* Uses force while in or partly in a building that is a dwelling
* Is not a trespasser at the time the force is used; and
* Believed the victim to be in, or entering the building or part as a trespasser
158
How do 'householder' self defence cases differ in approach?
The trigger remains the same as non-householder cases
The 'response' is more lenient towards households
159
What is the test for the jury considering the 'response' of self defence in a householder case?
Was the force grossly disproportionte in the circumstances as D believed them to be? If so, there can be no defence.
If not grossly disproportionate, was the level of force reasonable. The jury should consider unexpected anguish and responses that may siggest reasonableness (e.g. the stock of coming upon an intruder, the time of day, vulnerability of occupants such as children)
= More lenient
160
When does an inchoate offence occur?
Once steps have been taken to commit the offence, and incohate offence (e.g. attempt) has been committed
Merely thinking about committing an offence is insufficient.
161
What are the basic requirments for criminal liability for an **attempt**?
AR: An act which is **more than merely preparatory** to the commission of an offence
MR: An **intention to commit the full offence**
162
When is an attempt merely prepatatory (not an attempt)
Examples...
* Stood outside post office with a threatening note and take gun was not attempted robbery
* Being in school toilets with a knife and rope but no school children was not attempted imprisonment
It seems preparing the equiptment, and event being nearby the location of the intended offence, may not be sufficient for an attempt since it is preparatory
163
When is an act more than merely preparatory and therefore an attempt?
Examples....
* Getting into a car with a loaded gun and pointing it at the victim was attempted murder
* Looking at a padlock with cutting equiptment in the hedge was attempted burglarly
In these cases, preperation had finished, and D was about to commence the commission (e.g. pointing the gun, about to cut the padlock etc...)
164
What is the mens rea of an attempt?
The accused must intend to bring about the consequences required for the FULL offence
For example, for attempted murder, it is necessary to prove that D intended to kill.
Importantly, **it is not enough to show that D intended to cause GBH for murder!** It must be shown that there is an intention to kill.
165
Where D sets out on a crime which is IMPOSSIBLE to commit, can D be convicted of an attempt?
There are three type sof impossibility...
* **Non-Existent Crimes** > D *cannot* be liable for attempting to commit a lawful act (a crime that doesn't exist)
* **Inadequacy** > If the crime is feasible but D adopts a method that cannot work (e.g. trying to poison someone with a harmless substance) D *can* still be convicted of an inchoat offence.
* **Factual** > If D believes a factual state (that is untrue) this *can* still be an attempt. For example, if D stabs V with an intention to kill, but V is already dead, this is still an attempt.
166
Who is the principal participant of a crime?
The person who, with mens rea, commits the actus reus of the offence
You can have more than one principal.
For example, A & B break into a house, both with an intention to steal. They are joint principals for burglarly
167
When will someone be guilty as principal even if another person commits the actus reus?
| Innocent Agent Doctrine
If A is under the age of criminal liability, or is decieved as to the act, and they commit the actus reus, B (the instigator with the mens rea) can be charged as principal even though it was the 'innocent agent' who committed the actus reus
For example, a woman gave a child poison and the child gave it to a victim. The woman was the principal offender.
168
What constitutes a secondary party?
Someone who...
* Aids
* Abets
* Counsels
* Procures
* Are Party to a Joint Enterprise
Mainly, a secondary assits and encourages the commission of the principal offence
169
What mens rea is required by a secondary participant
* An **intention to assist or encourage** the principals conduct
* If the crime requires mens rea, an intention that the principal will do the actus reus with the mens rea
* **Knowledge of existing facts or circumstances for the offence to be criminal**
170
Can a secondary party change their mind and withdraw?
If so, how and when?
It is not enough to simply change your mind.
There must be an act of withdrawal, or at the very lease the withdrawal must be communicated.
For example, if the secondary simply fails to show up, that isn't withdrawal. Some communication of withdrawal is nedded. Further steps may also be necessary to neutralise actions taken.
171
When can a secondary participant withdraw for the offence of assistance?
Assistance is at the point of assisting, not when the principal commits the crime.
Therefore, withdrawal must take place before assistance.
For example, B gave A a knife to use on anyone interuppting the planned burglarly. When disturbed, B said 'lets go' and left. The court held that something much more effective would be needed to withdraw. Obiter suggested the only way would be to physically intervene, stop A attacking the victim and getting between them.
172
How can you withdraw from spontaneous violence?
If violence happens to errupt (e.g. outside a football match) then communication is not required to withdraw
Communication is only needed for pre-planned violence
173
Can a secondary participant be convicted if the principal is acquitted?
Yes - as long as it is clear someone has committed the offence to which D was a secondary party, D can be convicted
174
What happens if there are two people, and it cannot be proven who committed the crime?
If it cannot be proven that both were involved, but the court are unsure which one was involved, both must be acquitted
However, if it can be proved that the one who did not commit the crime as principal was a secondary party (even if they cannot decipher who was the official 'principal') then both can be convicted.
For example, two parents were convicted of manslaughter after their baby died of an overdoe even though the court couldn't prove which parent gave the dose. The conviction was secured for both since they knew that the 'other parent' aided and abetted.
175
Is it an offence to attempt to aid, abet, counsel or procure?
No.
176
Is it an offence to aid. abet, counsel or procure and attempt?
Yes
177
What does it mean to aid an offence?
Giving help, support, assistance before or at the time of the offence
For example, providing informatiom, supplying tools, driving the principal
there need be no consensus - D can aid even if the 'aid' is unforseen, unwanted or unknown by P
178
What does it mean to abet an offence?
Incite, institgate, encourage P **at the time of the offence** which must be communicated to P
Mere prescence at the scene insufficient. For example, P sang a concern without ppermission to enter the country. D wrote a favourable review and this was held to constitute 'abetting'
Whereas counselling encourages before the offence, abettign encourages during the offence.
179
What does it mean to counsel an offence?
Giving P advice or encouragement **before** the offence is committed
There must be contact and consensus between P and D
180
What does it mean to PROCURE an offence?
To procure by endevour
For example, D adds alcohol to Ps drink without his consent. P later drives. D has procured p to commit a drink drive offence
181
What does it mean to be a party to a joint enterprise?
For a joint enterprise...
* There must be 2+ people committing a crime together (O1)
* They have the mens rea for that offence (O1)
* At the time of the offence, one of the participants commit an incidental offence (02)
* All participants are liable for O2 as an accessory
Remember, the crime committed (O2) must be in the course of or be incidental to the intended crime (O1)
For example, P and D commit burglary as principals, P murders the homeowner, D becomes an accessory to murder since this is incidental to the burglary
Contrast, P & D beat up a man. On the way home, P throws a brick through the window causing damage, killing the owner. D cannot be liable for the damage since this is not incidental to the beating.
182
Can a new party joining an enterprise be liable as an accessory for offences committed before they joined?
No. They willl only be liable for offences committed after they joined the enterprise
183
What is the mens rea for aiding and abetting?
D must intend to do the act which aids or encourages, and by doing so intend that it aids or encourages the commission of the crime.
184
Can D be liable for greater harm than intended for crimes where the MR does not correspond with the AR?
Yes - an intention that the principal will do the actus reus with that mens rea is sufficient
If D intends P to do serious harm, and P does serious harm resulting in Vs death, DA is liable as an accessory to murder
185
Who carries the burden of proving the defence of diminished responsibility, and to what standard?
When the defendant raises the defence of diminished responsibility, the burden of proof lies with the defendant.
The standard of proof required in such a case is 'on the balance of probabilities'
186
# ****
D was going to commit burglary.
He attends with the tools.
Just as D is about to undo the latch and push open the door, he sees the policeman cycling along the road.
The neighbour panics and runs away
Is this an attempt?
Yes
The defendant has done an act, which is more than merely preparatory to the commission of the offence, with the intention of committing the offence.
Attending with the tools and getting to the point of trying the door it is arguable that he has done acts which are more than merely preparatory.
187
If D tells her friend she will kill her husband, and the friend says "yes, he deserves it" - is she a secondary party to murder if the woman carries it out?
Yes
The friend has encouraged the client to commit the offence.
The secondary party is likely to be guilty of abetting the offence- that is to encourage or assist the commission of the offence.
Here, there is encouragement to commit the offence knowing that the wife intended to carry out the offence.
188
What classification is common assault?
Summary Only
189
What classification is criminal damage where the value is £5,000 or less and not caused by arson?
Summary Only
190
What classification is robbery?
Indictable Only
191
What classification is rape?
Indictable Only
192
What classification is wounding/GBH with intent (s.18 OAPA)?
Indictable Only
193
What classificarion is murder and attempted murder?
Indictable Only
194
What classification is manslaughter?
Indictable Only
195
What classification is theft?
Either-Way
196
What classification is burglary?
Either Way
197
What classification is fraud?
Either Way
198
What classification is sexual assault?
Either Way
199
What classification is ABH per s.47 OAPA?
Either Way
200
What classification is wounding and GBH per s/20 OAPA?
Either Way
201
What classification is possession of class A and B drugs?
Either Way
202
What classification is possession with intent to supply class A and B drugs?
Either Way
203
What classification is criminal damage with a value exceeding £5,000
Either Way
204
What classification is criminal damage caused by arson irrespective of value?
Either Way
205
D cuts a handbag from V. V feels nothing.
Is this 'force' sufficient for robbery?
No. If the indirect contact felt by the victim was minimal this will not be enough to constitute force.
206
If D recieves too much change (e.g. from a taxi driver) but does not return it because he honestly believes the person to whom the property belongs cannot be discovered by taking reasonable steps, is there a defence to theft?
Yes, s.2(1)(c) applies - no liability if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.
207
At what point must someone enocurage for it to constitute 'abettment'?
Abetting is incitement or encouragement at the time the offence is committed.
It is not abetting if the encouragement happens before. It would be counselling.
208
When will an intoxicated defendant be deemed to be reckless as to causing criminal damage (basic intent)?
If they would have seen the risk of causing damage when sober.
Simply, the defendant must see the risk, in this case of causing damage to property belonging to another, and it must be an unreasonable risk to take in the circumstances known to the defendant.
209
If someone threatens an owners dog, can this constitute robbery?
For example "Give me your handbag or I will kick your dog."
No. Making a person fear a dog would be subjected to force isn’t included in the definition of 'force' for robbery.
The force must be used or threatened against a person, not property
210
Is there a robbery if someone threatens V with force V doesn't hear?
For example, the man leans forward and says to her, ‘if you don’t let me take your handbag, you will get punched!’ The lady is hearing impaired so does not hear what the man has said.
Yes. D sought to put the lady in fear of being then and there subjected to force. She need not hear or be aware.
211
D asks V for money and lies. V knows it is a lie and gives the money.
Can D be liable for theft since V consented?
Yes.
It was held in R v Gomez that you can appropriate with the owner’s consent as appropriation is an objective description of the act done independent of the mental state of either the owner or the defendant.
Following on from this reasoning, the House of Lords said in R v Hinks that it is possible to appropriate a gift.
212
What is the self-defence test in a householder case?
The jury will be asked to consider if the force was grossly disproportionate, and if not, was it reasonable?
213
When will psychiatric harm constitute GBH?
Grievous bodily harm means serious harm.
A recognised psychiatric illness can be actual bodily harm or grievous bodily harm if serious.
214
For the defence of lawful excuse to criminal damage per s.5(2)(a), what must be established?
The defendant acts in the belief that the owner consents to the damage or would do so if he knew of the damage and its circumstances.
It is immaterial whether the belief is justified or not, so long as it is honestly held, and it does not matter that the man makes a mistake due to intoxication.
215
What is the doctrine of anticipatory self-defence ?
It allows for pre-emptive action if there is an imminent and immediate threat.
216
What is the doctrine of anticipatory self-defence fail to establish a defence?
If the threat had not yet materialised and the force used was premature
For example, a homeowner receives a credible threat and prepares by placing a heavy object near the entrance and, on hearing noises swung towards the door, injuring a neighbour checking on the homeowner’s safety. This is premature.
217
Who carries the burden of proving the defence of diminished responsibility, and to what standard?
The defendant, on the balance of probabilities.
218
What is the correct standard of proof that the jury must apply when determining the defendant's guilt and the validity of the self-defence claim?
The prosecution must prove the defendant's guilt beyond reasonable doubt
While the defendant must raise enough evidence to suggest self-defence applies, the prosecution must prove beyond reasonable doubt that it does not.
219
What is the test the jury consider in 'flight or fright' cases?
If the jury decide that what the man did was **so daft and unexpected that no reasonable person could have foreseen it**, then the drug dealer will not have caused the man serious harm
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