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SQE1 FLK1 > Criminal Liability > Flashcards

Criminal Liability Flashcards

1
Q

Where the defendant wishes to rely on an exception within an element of an offence, or when raising some defences, they will have to prove it. What is the standard to which they must prove?

A

Balance of probabilities

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2
Q

What defences must the prosecution disprove?

A

Self-defence, and loss of control

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3
Q

What must the jury be to convict someone beyond a reasonable doubt?

A

The jury must be sure that the defendant did it

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4
Q

What are the three elements of actus reus?

A
  1. Conduct (acts or omissions)
  2. Circumstances (facts making defendant liable)
  3. Result (outcome)
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5
Q

What are the two requirements for a failure to act to amount to a criminal offence?

A

Defendant:
1. Had a duty to act
2. Breached the duty by failure to act sufficiently

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6
Q

What are the five situations in which a duty to act will arise?

A
  1. Statute, e.g. to stop at scene of accident
  2. Special relationship, e.g. parent-child, doctor-patient
  3. Voluntarily assumed duty of care for victim
  4. Contract, e.g. railway guard
  5. Defendant created dangerous situation and is aware of having done so
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7
Q

What are the two stages in the test for causation?

A
  1. Factual causation
  2. Legal causation
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8
Q

What does factual causation consider?

A

Whether the result would have occurred but for the defendant’s conduct

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9
Q

If there is more than one cause, and defendant’s action slightly accelerates the result, is there sufficient factual causation?

A

Yes.
Compare with legal causation under which the cause must be substantial.

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10
Q

What is the purpose of legal causation?

A

The prevent factual causation test from being over-inclusive, where issues like lack of foreseeability would make conviction unfair

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11
Q

What are the two requirements of a defendant’s action before it will be a legal cause?

A
  1. Substantial, i.e. more than minimal, slight, or trifling, and
  2. Operative, i.e. actually cause the result and is negated by a more substantial intervening act or event
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12
Q

However, what is the thin skull rule which is somewhat of an exception to the intervening act part of legal causation?

A

Causation is not negated if the defendant does more damage than expected due to the particular vulnerabilities of the victim, or a victim’s condition worsens because they refuse medical treatment on religious grounds

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13
Q

When will medical treatment break the chain of causation?

A

When the treatment is so bad that the original injury becomes the background

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14
Q

What is required for intervention of the following parties to break the chain of causation?
1. Defendant
2. Natural event
3. Victim
4. Third party

A
  1. Defendant: New act
  2. Natural event: Unforeseeable
  3. Victim: Voluntary, and unforeseeable, i.e. so daft as to be unforeseeable
  4. Third party: Free, deliberate, and informed
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15
Q

What are the two types of intention?

A
  1. Direct
  2. Indirect (oblique)
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16
Q

When will a defendant directly intend an outcome?

A

When the outcome is the defendant’s aim or purpose

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17
Q

When will a defendant indirectly intend an outcome?

A

When the outcome is a virtual certainty of the act, and the defendant realises this

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18
Q

What are the only offences indirect intention is available for?

A

Specific intent offences only, not basic intent

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19
Q

What is available instead of indirect intent for basic intent offences?

A

Recklessness

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20
Q

What is a specific intent offence?

A

An offence which can only be committed with intent, not recklessness

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21
Q

As an important aside, is attempt a specific or basic intent offence?

A

Specific intent, even if the offence attempted is a basic intent offence.
This means that you cannot commit attempt recklessly and to sustain a conviction, it must be shown that the defendant had the specific intent to commit the offence they were attempting.

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22
Q

What is the doctrine of transferred malice?

A

If defendant has intent to commit an offence against victim A, but inadvertently commits the offence against victim B, the intent is transferred and the offence is completed in the same way

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23
Q

What is the limitation on transferred malice?

A

The offence must be the exact same.
E.g. the intent to commit a battery whilst throwing a rock at someone’s head would not transfer and sustain a criminal damage charge if the rock actually breaks a window instead.

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24
Q

Where a person is guilty of a crime under transferred malice, what other crime will they usually also be guilty of?

A

Attempt against victim A

25
Q

What is the two step test for recklessness?

A
  1. Defendant foresees any risk from the act, and
  2. In the circumstances subjectively known to the defendant, this is an objectively unreasonable risk to take
26
Q

What is the two step test for negligence in criminal law?

A

Defendant:
1. Owes a duty a care, and
2. Breaches the expected standard of care

27
Q

What is not available in the case of strict liability offences, and why?

A

Defences that negate state of mind, because state of mind is irrelevant to strict liability

28
Q

Under the identification doctrine, what is required to hold a corporation liable for criminal acts?

A

Prosecution must identify a controlling mind, whose actions and mental state can be said to be that of the corporation as a whole

29
Q

What are the four steps for the crime of murder?

A

A defendant commits murder when they:
1. Cause
2. The death of another human
3. Unlawfully
4. With intent to kill or cause GBH

30
Q

When can the physical act causing murder be an omission?

A

When the defendant has a duty to care for the victim

31
Q

Is a fetus a human being for the purposes of murder?

A

No

32
Q

When does death occur?

A

When the victim is medically brain dead

33
Q

When does voluntary manslaughter arise?

A

When actus reus and mens rea of murder are made out, but there are partial defences available to the defendant to reduce their liability

34
Q

What partial defences will reduce murder to voluntary manslaughter?

A
  1. Diminished responsibility
  2. Loss of control
35
Q

What are the four requirements for diminished responsibility?

A
  1. Defendant had abnormality of mental functioning
    and the abnormality must:
  2. Arise from a recognised medical condition
  3. Substantially impair their ability to understand their conduct, form rational judgment, or exercise self-control, and
  4. Provide an explanation for the killing
36
Q

Who must prove diminished responsibility and to what standard?

A

Defendant, on balance of probabilities

37
Q

What is loss of control the modern name for?

A

Provocation

38
Q

What are the three requirements for loss of control?

A
  1. Defendant’s role in killing resulted from loss of self-control
  2. Loss of control was caused by a qualifying trigger, and
  3. A hypothetical person of the defendant’s age and sex might have reacted the same way
39
Q

What are the two things which amount to a qualifying trigger?

A
  1. Fear of serious violence from victim against defendant or another identified person
  2. Something said or done constituting a circumstance of an extremely grave character which gave defendant a justifiable sense of being wronged
40
Q

Who must prove loss of control and to what standard?

A

The prosecution must prove beyond reasonable doubt that defendant did not lose control

41
Q

What is specifically excluded as a qualifying trigger?

A

Discovering sexual infidelity

42
Q

When does involuntary manslaughter occur and what are the two types?

A

When the mens rea of murder is not made out
1. Unlawful act manslaughter
2. Gross negligence manslaughter

43
Q

When does unlawful act manslaughter arise?

A

Defendant, with the relevant mens rea, commits a dangerous criminal offence, that carries an objective risk to the victim and they die as a result

44
Q

What are the four requirements of the act for unlawful act manslaughter to apply?

A
  1. D must intend the act
    and the act must be:
  2. Unlawful
  3. Dangerous and
  4. The cause of death (applying factual and legal causation)
45
Q

Can unlawful act manslaughter be committed by omission?

A

No, it requires an unlawful act

46
Q

When does gross negligence manslaughter arise?

A

Defendant does not commit an offence or knowingly take a risk, but breaches a duty in such an extremely negligent way that they are deemed criminally culpable.
There must be a serious and obvious risk of death, whether or not D realises.

47
Q

What are the three elements of gross negligence manslaughter?

A
  1. D owes duty of care to victim, breaches it and it causes death
  2. Serious and obvious risk of death (whether or not D was aware)
  3. Breach was so bad as to give rise to criminal culpability
48
Q

Can gross negligence manslaughter be committed by omission, and why?

A

Yes, because it is based on a duty, and where there is a duty to act, failure to do so will be a breach

49
Q

In establishing whether duty was breached, to what standards are the defendant’s actions compared?

A

Standards of a reasonable person with the same duty of care and applicable expertise

50
Q

When does assault occur?

A

When defendant intentionally or recklessly causes another person to apprehend immediate unlawful personal force (i.e. a battery)

51
Q

Does the victim need to be afraid?

A

No. Apprehension goes to belief, not fear.

52
Q

Can words amount to an assault?

A

Yes, if they cause the victim to believe a battery is imminent

53
Q

How can words negate assault?

A

When they stop the victim from believing a battery is imminent

54
Q

Can a conditional threat be an assault?

A

Yes, because victim can have the apprehension that the battery will occur if the condition is met

55
Q

How is intent and recklessness applied to assault?

A

Intent: Defendant intends the victim to apprehend a battery, or
Recklessness: Defendant foresees the risk that their actions could make the victim apprehend a battery and this risk is unreasonable

56
Q

When does battery occur?

A

When defendant intentionally or recklessly applies unlawful personal force to another person

57
Q

Can indirect contact amount to battery?

A

Yes, contact can be direct and indirect

58
Q

What is an example of how battery can be delayed?

A

If defendant sets a trap for the victim, which eventually causes unlawful force to be applied to the victim

59
Q
A

SQE1 FLK1 (2 decks)

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