Criminal liability Flashcards
1
Q
Assault (simple assault/technical assault/common assault):
A
Assailant intentionally OR recklessly causes the victim to apprehend immediate AND unlawful personal force.
2
Q
Assault:
Defendant need to touch the victim?
A
no
3
Q
Assault:
unlawful force?
A
personal violence such as non-consensual contact.
4
Q
Assault:
Intention?
A
defendant intended to cause the victim immediate AND unlawful force
5
Q
Assault:
Recklessness?
A
defendant foresees the victim might have this result (subjective).
6
Q
Assault:
Apprehension?
A
expectation of unlawful force (not fear) is required.
7
Q
Assault - Apprehension
No violence, touching, injury, OR harm needs to be caused.
Correct?
A
yes
8
Q
Assault:
Assault by words OR silence?
A
words alone OR silence can amount to assault
9
Q
Assault - mens rea
Assault by words OR silence?
A
To cause the victim to apprehend immediate AND unlawful personal force
10
Q
Assault:
Immediacy?
A
victim MUST apprehend immediate violence, NOT future violence.
Immediate DOESN’T mean instantaneous.
Conditional threats CAN satisfy the immediacy criteria.
11
Q
Assault:
What type of offence?
sentence?
consent a defence?
A
Summary only offence.
6 months imprisonment AND/OR fine.
yes
12
Q
Battery (physical assault/common battery)?
A
An act OR omission which always involves a physical contact between assailant AND victim.
Infliction of unlawful personal force.
13
Q
Battery (physical assault/common battery) -
Unlawful force?
Examples?
A
infliction of unlawful personal force.
physical contact hitting, pushing etc (with or without a weapon), throwing an object, spitting, OR setting a dog on the person.
14
Q
Battery:
Intention?
A
intentionally inflicting unlawful force NOT just apprehension
15
Q
Battery:
Recklessness?
A
defendant foresees that he might apply unlawful force (subjective).
16
Q
Battery:
Harm?
A
even the slightest, most trivial touch will do.
DON’T need to establish harm.
17
Q
Battery:
Recklessness?
A
defendant foresees that he might apply unlawful force (subjective).
18
Q
Battery:
What type of offence?
Sentence?
Consent a defence?
A
Summary only offence.
6 months imprisonment AND/OR fine.
yes
19
Q
s.47, OAPA 1861 (assault occasioning actual bodily harm):
A
Assault OR battery occasioning actual bodily harm.
The harm MUST amount to actual bodily harm (aggravated assault/battery).
20
Q
s.47, OAPA 1861:
Assault OR battery?
A
Either of these has occured
AND
harm has been caused to the victim.
21
Q
s.47, OAPA 1861:
What must be proven for assault?
A
mens rea of assault.
22
Q
s.47, OAPA 1861 -
assault?
A
Intending the victim to cause the apprehension of unlawful force
OR
Foreseeing that the victim might be caused such apprehension.
23
Q
s.47, OAPA 1861:
Occasioning?
A
causing harm
24
Q
s.47, OAPA 1861:
Battery?
A
MUST prove mens rea of battery.
Intention
OR
subjective recklessness as to whether unlawful force will be applied.
25
s.47, OAPA 1861:
Actual bodily harm?
any hurt OR injury calculated to interfere with the health OR comfort of the victim.
Includes psychiatric harm BUT NOT fear, distress, OR panic.
26
No need to show defendant intended additionally to cause actual bodily harm.
Need ONLY...
intend OR be reckless as to the assault OR battery.
27
s.47, OAPA 1861:
What type of offence?
Sentence?
Consent a defence?
Either way offence.
5-year imprisonment (max).
no
28
s.20, OAPA 1861 (wounding or inflicting grievous bodily harm):
unlawfully AND maliciously wounding OR inflicting any grievous bodily harm.
29
s.20, OAPA 1861:
Grievous bodily harm?
really serious harm (e.g., fractured skull, internal injuries, broken limbs, broken cheek, ribs, serious psychiatric harm etc).
30
s.20, OAPA 1861:
Maliciously?
intentionally OR recklessly as to actual bodily harm.
31
s.20, OAPA 1861:
Wounding?
breaking of both layers of the skin (e.g., cut, scratch with blood).
NOT bruising OR internal bleeding.
32
s.20, OAPA 1861:
MUST the defendant intend or foresee some harm NOT NECESSARY...
to prove defendant intended OR foresaw really serious harm.
33
34
s.20, OAPA 1861:
What type of offence?
Sentence?
Consent a defence?
Either way offence.
5-year imprisonment (max).
no
35
s.18, OAPA 1861 (wounding or causing grievous bodily harm with intent):
wounding OR causing grievous bodily harm WITH intent to resist
OR prevent the lawful apprehension
OR detention of any person.
36
s.18, OAPA 1861:
Grievous bodily harm?
really serious harm (e.g., fractured skill, internal injuries, broken limbs, broken cheek, ribs, serious psychiatric harm etc).
37
s.18, OAPA 1861:
Intention to cause grievous bodily harm?
MUST intend to cause grievous bodily harm.
Intention to cause a lesser wound WILL NOT suffice
OR
Intention to resist OR prevent arrest – defendant intended to resist/prevent lawful arrest
AND
Intended OR foresaw some actual bodily harm would be caused.
38
s.18, OAPA 1861:
Wounding?
breaking of both layers of the skin (e.g., cut, scratch with blood).
NOT bruising OR internal bleeding.
39
s.18, OAPA 1861:
Intention to resist OR prevent arrest?
defendant intended to resist/prevent lawful arrest
AND
Intended OR foresaw some actual bodily harm would be caused.
40
s.18, OAPA 1861:
What type of offence?
Sentence?
Consent a defence?
Indictable only offence.
Life imprisonment (max).
no
41
s.1 TA 1968 (theft):
dishonestly appropriates property belonging to another with the intention of permanently depriving.
42
s.1 TA 1968 (theft):
Appropriate?
any assumption of rights of the owner
e.g., sells, hires, destroys etc.
defendant need to assume any one right.
Including later appropriation – person comes by the property WITHOUT stealing BUT later keeps OR deals with it as an owner.
43
s.1 TA 1968 (theft):
Dishonesty?
not dishonest if person believes
* He has the legal right to the property.
OR
* Has the owner’s consent
OR
* Owner can’t be found taking reasonable steps.
Person can be dishonest EVEN THOUGH they are willing to pay.
44
Guidance on honesty set out in Ivey v Genting Casinos, where a test for dishonesty was applied?
Subjective – what was the person’s knowledge OR belief OR belief of as to the facts?
AND
Objective – was the person’s conduct dishonest by the standards of ordinary decent people?
45
s.1 TA 1968 (theft):
Property?
includes money, real property, personal property, things in action, AND other intangible property.
46
s.1 TA 1968 (theft):
Belonging to another?
includes ownership, possession, control, AND a proprietary interest in the property.
47
s.1 TA 1968 (theft):
Intention to permanently deprive?
ordinary meaning applied.
IF borrowing OR lending can amount to deprive if person treats the property as his own REGARDLESS of the owner’s rights.
48
s.1 TA 1968 (theft):
What type of offence?
Sentence?
Either way offence.
7-years imprisonment (max).
49
s.8 TA 1968 (robbery):
person is guilty of robbery IF he steals AND immediately before OR at the time of doing so,
he uses force on any person OR puts any person in fear of being subject to force.
50
Robbery is theft + force =
Aggravated theft
51
Which two elements of theft need to be present?
Actus Reus
Mens Rea
52
s.8 TA 1968 (robbery):
Force used OR threatened?
question of fact for the jury.
MUST be more than negligible BUT need not be serious.
NEED NOT be directed at the person to whom the property belongs BUT any person.
53
s.8 TA 1968 (robbery):
Force or threats made immediately before or at the time of the theft?
use OR threat of force MUST generally be simultaneous with the act of theft to constitute robbery
AND MUST be to steal.
NO ADDITIONAL mens rea for the force element.
54
s.8 TA 1968 (robbery):
What type of offence?
Sentence?
Indictable only offence.
Life imprisonment
OR an unlimited fine
OR both.
55
s.9 TA 1968 (burglary):
s.9(1)(a)?
entering a building OR part of a building as a trespasser with intent to commit theft, grievous bodily harm, OR criminal damage
56
s.9 TA 1968 (burglary):
s.9(1)(b)?
having entered a building OR part of a building as a trespasser,
stealing/attempting to steal OR inflicting/attempting to inflict grievous bodily harm.
57
When is s.9(1)(a) committed?
at the point of entry
58
When is s.9(1)(b) committed?
at the point of ulterior offence is committed.
59
trespass + criminal intent of ulterior offences (formed at entry or later on) =
Burglary
60
s.9(1)(a) -
Actus Reus?
person MUST enter building/part of, as a trespasser.
Offence is committed at the point of entry.
61
s.9(1)(a) -
mens rea?
person MUST have
* Knowledge OR recklessness as to being a trespasser at the time of entry
AND
ON ENTRY:
* Intend to commit theft, grievous bodily harm, OR criminal damage.
Actual commission of offences NOT required intention is to make the person liable under s.9(1)(a).
62
s.9 TA 1968 (burglary):
What type of offence?
Sentence?
Either way offence.
10 years imprisonment (max) – increasing to 14 years (max) in burglary of a dwelling.
63
s.9(1)(b) -
Actus Reus?
person MUST:
* Enter building/part of, as a trespasser
AND
* Commit OR attempt to commit theft OR grievous bodily harm.
Offence committed at point the ulterior offence is committed.
64
s.9(1)(b) -
mens rea?
person MUST HAVE:
* Knowledge OR recklessness as to being a trespasser at the time of entry
AND having entered the property:
* Formed the mens rea for the ulterior offence of:
Theft/attempted theft
AND
Grievous bodily harm/attempted grievous bodily harm.
65
s.9 TA 1968 (burglary):
What type of offence?
Sentence?
Either way offence.
10 years imprisonment (max), increasing to 14 years (max) in burglary of a dwelling.
66
s.10, TA 1968 (aggravated burglary):
Burglary committed at the time with any firearm, imitation firearm, OR weapon of offence.
This offence requires proof of all the elements of burglary.
Defendant MUST be in possession of a weapon at the time of the burglary.
67
Examples of s.10, TA 1968 (aggravated burglary):
machete, hammer, handcuffs, rope etc.
68
s.10, TA 1968:
s.9(1)(a) - at the time must...
have a weapon with them at the time of entry.
69
s.10, TA 1968:
s.9(1)(b) - at the time must...
have a weapon when the ulterior offence of theft, grievous bodily harm, attempted theft, attempted grievous bodily harm is committed.
70
s.10, TA 1968:
What type of offence?
Sentence?
Indictable only offence.
Life imprisonment (max).
71
s.1(1) Criminal Damage Act 1971 (simple criminal damage):
Person who without lawful excuse destroys OR damages any property belonging to another,
intending to destroy
OR damage any such property
OR being reckless as to whether any such property would be destroyed
OR damaged.
72
s.1(1) Criminal Damage Act 1971:
Destroy or damage?
destroy means to render useless (e.g., demolishing, burning, or killing a pet).
Damage can be temporary OR permanent.
Generally, involves the diminishing of value OR usefulness OR where time, effort AND expense is involved to rectify the damage.
73
s.1(1) Criminal Damage Act 1971:
Intend the destruction OR damage of property belonging to another?
deliberately inflict
OR
Recklessness as to the destruction OR damage of property belonging to another – subjective test based on the accused state of mind.
Did the defendant foresee the risk of criminal damage and go on to take it?
AND
Knowledge OR belief that the property belongs to another – defendant neither knew NOR believed the property belonged to another,
they AREN’T liable for criminal damage.
Such belief DOESN’T need to reasonable OR justified BUT honest.
74
s.1(1) Criminal Damage Act 1971:
Property?
tangible property (e.g., real property and personal property).
intangible property (e.g., bank account OR copyright).
Animals BUT ONLY if a pet OR kept in a zoo.
Flowers/Plants – if in garden BUT not in the wild.
75
s.1(1) Criminal Damage Act 1971:
Belonging to another?
property MUST belong to someone else.
This person can have ownership, custody, or control, proprietary right or interest OR a charge, over the property.
76
s.1(1) Criminal Damage Act 1971:
Knowledge OR belief that the property belongs to another?
defendant neither knew NOR believed the property belonged to another,
they AREN’T liable for criminal damage.
Such belief DOESN’T need to reasonable OR justified BUT honest.
77
Without lawful excuse – statutory defence to criminal damage (two lawful excuses):
* Belief in consent – honest belief he has owner’s consent OR would have consent, to damage AND destroy the property.
It is irrelevant if belief is mistaken OR unjustified, as long as it’s honestly held (subjective test)
OR
* Lawful protection of property – damage or destruction done necessary to protect the property belonging to himself OR another (objective test).
AND
Belief that the property was in immediate need of protection (subjective test)
AND the means adopted were reasonable (objective test).
78
s.1(1) Criminal Damage Act 1971:
What type of offence?
Sentence?
If damage exceeds £5,000, either way offence. 10 years (max).
Damage less than £5,000, summary only offence. 3 months AND/OR fine.
79
s.1(2) Criminal Damage Act 1971 (aggravated criminal damage):
Offence of destroying OR damaging property with intent to endanger life.
80
s.1(2) Criminal Damage Act 1971:
Intention OR recklessness as to the endangerment of life of another by the damage OR destruction?
defendant MUST intend
OR be reckless as the endangerment to life caused by that destruction
OR damage
AND not the act that caused the destruction/damage.
81
s.1(2) Criminal Damage Act 1971:
Belonging to himself OR another?
property can belong to himself OR another.
82
Lawful excuses DON’T apply to aggravated criminal damage.
Correct?
yes
83
s.1(2) Criminal Damage Act 1971:
What type of offence?
Sentence?
Indictable only offence.
Life imprisonment (max).
84
s.1(3) Criminal Damage by 1971 (arson):
Where either s.1(1) OR s.1(2) is committed by fire, the charge is arson.
Criminal damage by fire.
85
Arson?
Fire – MUST be fire that causes damage.
Damage caused by smoke from fire NOT arson.
Applies to both types of Arson.
86
Lawful excuse available since linked to simple criminal damage.
Correct?
yes
87
Lawful excuse NOT available since linked to aggravated criminal damage.
Correct?
yes
88
s.1(3), Criminal Damage by 1971:
What type of offence?
Sentencing?
Indictable only offence.
Life imprisonment (max).
89
Murder (common law offence):
Unlawful killing of a human being under the King’s peace with malice aforethought.
90
Murder:
Unlawful?
MUST be no available defence OR justification.
91
Murder:
Intention to kill?
* Direct intention to kill
OR
* Indirect intention – death is NOT the aim BUT virtually certain result of their actions AND the defendant appreciates this.
92
Murder:
Intention to cause grievous bodily harm?
* Direct intention to cause really serious bodily harm
OR
* Indirect intention – serious bodily harm NOT the aim BUT serious injury is a virtual certainty AND defendant appreciates this.
93
Murder:
Causes death?
MUST be proven that the defendant was the factual and legal cause of the death.
94
Murder:
Human being?
victim MUST be a person.
Foetus NOT a person.
95
Murder:
Under the King’s peace?
excludes the killing of enemy forces during war.
96
Murder:
What type of offence?
Indictable only.
97
Voluntary manslaughter:
Actus reus AND mens rea of murder has been proven,
can be possible for the offence to be reduced to voluntary manslaughter
with the application of the following partial defences.
98
Diminished responsibility:
Statutory defence.
Partial defence providing a justification for the defendant who is suffering an abnormality of the mind
BUT not a total loss of control.
99
Diminished responsibility -
Abnormality?
defendant MUST suffer from an abnormality of mental functioning.
100
Diminished responsibility -
Medical condition?
abnormality MUST arise from a recognised medical condition
NOT voluntary drinking/drug taking OR intoxication
101
Examples of medical conditions of diminished responsibility?
battered spouse syndrome, psychopathic personality disorder, depression, epilepsy, diabetes, alcohol dependency syndrome.
102
Diminished responsibility -
Substantial impairment?
abnormality MUST cause a substantial impairment of the defendant’s ability to understand their conduct
AND/OR form a rational judgment
AND/OR exercise self-control.
103
Diminished responsibility -
Link?
abnormality provides an explanation of the killing (MUST be a link between the medical condition and their act of killing).
104
Burden of proof regarding diminished responsbility:
Burden of proof lies with the defendant.
Defendant MUST prove (balance of probabilities) that all elements of diminished responsibility apply.
Burden of proof DOESN’T shift back to the prosecution to disprove this defence.
105
Loss of control:
Statutory defence.
Partial defence.
106
Loss of control -
Loss of self-control?
defendant must lose self-control
more than serious irritation or anger,
MUST lose the ability to think clearly.
Defendant can snap OR be a reaction to a culmination of events
107
Loss of self-control example?
domestic abuse over time BUT NOT considered desire for revenge.
108
Loss of control -
Qualifying trigger?
loss of control MUST have a qualifying trigger of either,
fear of serious violence
OR anger of having been seriously wronged BUT sexual infidelity on its own as a trigger is excluded.
109
Loss of control:
Self-restraint?
person of the defendant’s sex and age with a normal degree of tolerance
AND self-restraint
AND in the circumstances of the defendant might have reacted in the same way
OR similar way (reasonable person test, defendant is expected to exercise the same standard of tolerance OR self-restraint as a member of society).
110
Burden of proof regarding loss of control:
Burden of proof lies on the prosecution.
Defendant can produce some evidence that raises the defence,
Burden of proof shifts back to the prosecution to disprove loss of control beyond reasonable doubt.
Prosecution fails to do so, the defence stands.
111
Involuntary manslaughter -
Unlawful Act Manslaughter:
This offence constructs liability for manslaughter from the commission of a criminal offence in circumstances
defendant DIDN’T possess the intention to kill OR cause serious bodily harm.
112
Unlawful Act Manslaughter:
Unlawful act?
act done MUST be an unlawful criminal offence
Forms the base crime for Unlawful Act Manslaughter.
113
Examples of unlawful act mens rea and actus reus?
physical assault, burglary, robbery, theft, criminal damage etc.
114
Unlawful Act Manslaughter:
Unlawful act -
Crimes of negligence DON’T qualify.
Failure to act (omission) DON’T qualify.
correct?
yes
115
Unlawful Act Manslaughter:
Act is objectively dangerous?
objective test (all sober AND reasonable people would inevitably recognise that it MUST subject the other person to, at least, risk of some harm).
NOT serious harm.
116
Unlawful Act Manslaughter:
Causes death?
act has (in fact and in law) caused the victim’s death.
117
What type of offence is unlawful act manslaughter?
Indictable only.
118
Manslaughter by gross negligence:
Duty of care owing to the victim has been breached.
Person CAN’T have consciously risked harm BUT his conduct caused the death
AND whether his conduct can be characterised as grossly negligent.
Often used in cases where death is caused by medical professionals.
119
4 elements to establish manslaughter by gross negligence:
Duty of care
Breach
Causation
Grossly negligent
120
Manslaughter by gross negligence -
Duty of care?
Examples?
Defendant owed the victim a duty of care
Duty of care owed for acts AND omissions.
doctor and patient, tradesman and homeowner, landlord and tenant.
121
Manslaughter by gross negligence - Breach?
defendant breached that duty.
Has the defendant’s conduct fallen short of what would be expected of a reasonable person in the circumstances?
Professional person will be judged against professional standards.
122
Manslaughter by gross negligence - Causation?
breach caused the death of the victim.
Apply principles of actus reus for murder.
123
Manslaughter by gross negligence - Grossly negligent?
defendant’s conduct was grossly negligent.
Conduct of the defendant so bad in all the circumstances as to amount to a criminal act OR omission?
MUST be a risk their conduct would cause an obvious AND serious risk of death.
NO NEED to prove intention OR recklessness.
124
s.2 Fraud Act 2006 (Fraud by false representation):
Person dishonestly MAKES a false representation AND intends, by making that representation,
either to make a gain for themselves or another,
OR to cause loss to another
OR to expose another to a risk of loss.
125
False representation been made knowing it OR might be untrue OR misleading.
Irrelevant if...
anyone is misled by the misrepresentation.
Whether the victim relied on it OR if it resulted in any gain OR loss.
126
False declaration
representation means orally, in writing OR by conduct, OR posted on a website.
Can be express OR implied.
127
False
untrue OR misleading.
128
Knowledge the representation is OR can be false.
What must be shown?
that the defendant knew the representation is false OR misleading.
Defendant ought to have known OR suspected (not a test).
129
s.2 Fraud Act 2006 (Fraud by false representation):
Dishonesty?
apply test from Ivey v Genting Casinos.
130
Intention to make a gain for oneself OR another OR to cause loss to another OR to expose another to a risk of loss:
NO actual loss required.
131
Intention is enough.
Intention of the gain OR loss can be...
permanent OR temporary.
132
Gain?
keeping something you have AND gaining something you don’t have.
133
Loss?
losing something you have OR something you might get.
134
Gain or loss?
MUST relate to money OR property NOT services.
135
s.2 Fraud Act 2006 (Fraud by false representation):
What type of offence?
Trible either way.
136
s.3 Fraud Act 2006 (fraud by failing to disclose information):
Person dishonestly fails to disclose to another person information which they are under a legal duty to disclose.
AND intend by such failure to disclose, to make a gain for themselves OR another
OR to cause loss to another
OR to expose another to a risk of loss.
137
Legal duty to disclose information which has been...
breached by failing to disclose it.
138
Failing to disclose information which the defendant is under a duty to disclose.
Disclose?
remaining silent, stating that there is nothing to disclose, or partial disclosure.
139
Failing to disclose information which the defendant is under a duty to disclose.
Legal duty?
legal duty to disclose such as under statute, contract, fiduciary relationship, OR transaction of good faith.
140
s.3 Fraud Act 2006 (fraud by failing to disclose information):
What type of offence?
Trible either way.
141
s.4 Fraud Act 2006 (fraud by abuse of position):
Person occupies a position in which they are expected to safeguard, or NOT to act against the financial interests of another person,
dishonestly abuses that position AND intends by that abuse of position to make gain for themselves
OR another
OR to cause a loss to another
OR to expose another to a risk of loss.
142
Defendant has been in a position of financial trust, which has been abused by failing to safeguard
OR...
acting against the interest of the other person.
143
Occupying a position in which they are expected to safeguard OR NOT to act against, the..
financial interest of another person
144
s.4 Fraud Act 2006 (fraud by abuse of position):
Examples of occupying a position?
trustee/beneficiary, director/company, professional person/client, agent/principal, employer/employee
145
s.4 Fraud Act 2006:
Abuse of that position can be...
an act OR omission.
146
s.4 Fraud Act 2006 (fraud by abuse of position):
What type of offence?
Trible either way.
