Criminal Liability Flashcards
1
Q
What two elements must be proved by the prosecution to show that d is guilty
A
Actus reus and mens rea
2
Q
Actus reus
A
Physical element of the crime
3
Q
Mens rea
A
Mental element of the crime
4
Q
What must ds act/omission be to prove the actus reus
A
Voluntary, if D has no control over his actions then he is not at fault as has not committed the actus reus
5
Q
In what case did the court hold that the driver of the vehicle could not be driving voluntarily
A
Hill V Baxter
6
Q
In which situations does hill v Baxter state that driver has no actus reus when losing control of the vehicle as a result of
A
Stung by swarm of bees
Struck on the head by a stone
Had a heart attack while driving
7
Q
Where can involuntary conduct occur
A
In assaults
8
Q
Examples of where involuntary conduct occurs in assaults
A
Person A pushes person B causing them to bump into victim- not guilty of assault
D hits V due to a reflex action/muscle spasm- d not in control of his own body? Defence of insanity/automatism
Abscence of fault if there is a threat that D will be killed if he does not commit an assault- defence of duress
9
Q
What does the prosecution have to show where the actus reus requires a consequence to be proved
A
D conduct factual cause, legal cause and there was no intervening act which broke the chain of causation from Ds conduct to consequence
10
Q
Factual cause
A
Consequence wouldn’t have happened ‘but for’ Ds conduct
11
Q
Which case illustrates factual cause
A
Pagett
12
Q
What happened in pagett (fc)
A
D used his pregnant girlfriend as a shield while he shot at armed policemen
Police fired back and girlfriend was killed
D convicted of manslaughter- she would not have died but for him using her as a shield in the shoot out
13
Q
Legal cause
A
If Ds conduct is more than a minimal cause of the consequence
Others may contribute to the consequence
14
Q
Which case illustrates legal causation
A
Benge
15
Q
What happens in benge (LC)
A
D was a foreman charged with manslaughter where railway tracks were not relaid in time and train crashed as a result- killing people
D argued that although he was negligent the flag man had not gone far enough up the track and train driver not paying attention
D still a legal cause of the deaths as his conduct was more than a minimal cause
16
Q
What must there be a direct link between in order to prosecute D
A
From Ds conduct to the consequence
Must not be an intervening act which breaks this chain of causation
17
Q
4 examples that won’t break chain of causation
A
- Ds conduct causes reasonably foreseeable action by third party
- medical negligence
- vs own conduct
- thin skull rule
18
Q
Which case illustrates reasonably foreseeable action by third party
A
Pagett
19
Q
Medical negligence is unlikely to break the chain of causation unless…
A
It is so independent of Ds act and in itself so potent in causing death that Ds acts are insignificant
20
Q
Which cases illustrate medical negligence
A
Cheshire and Jordon
21
Q
Cheshire
A
D shot V who died later in hospital due to his windpipe becoming obstructed where surgery had been performed
Doctors negligently failed to spot complications
Although gunshot wounds no longer life threatening at the time of death, D liable for murder
Medical complications were direct consequnece of the shooting and Ds act still a significant cause of Vs death
22
Q
Jordon
A
D stabbed V, V treated in hospital and was recovering
Doctors gave him antibiotics which he was allergic to twice and he died as a result
Negligence ‘palpable’ and he was recovering, chain of causation broken.
23
Q
Vs own conduct unlikely to break chain of causation unless…
A
It is so daft that a reasonable person would not have foreseen V reacting in that way
24
Q
What case illustrates vs own conduct
A
Roberts
25
Roberts
Girl jumpers from car to escape sexual advances of D, car travelling 20-40mph and the girl injured
D held liable for her injuries as her reaction was reasonably foreseeable
26
Thin skull rule
Chain of causation will not be broken if V has something unusual about them which makes them more vulnerable, d must take V as he finds him
27
Examples of what could make V more vulnerable
Inability to swim, certain religious beliefs etc
28
Which case illustrates thin skull rule
Blaue
29
Blaue
D held to have caused the death of a jehovas witness whom he had stabbed
Young woman refused a blood transfusion on religious ground that would have probably saved her life
He had to take victim as he found her
30
Normal rule of omission
Omission cannot make a person guilty of an offence
31
Under which two pieces of legislation will require d to act
Statute/common law- omitting to do so will satisfy the actus reus
32
Example of a stature that may require d to act
Road traffic act requires d to drive with insurance
If without, omission causes him to commit offence
33
Under which 5 duties can omission make D liable for committing actus reus
- contractual duty
- duty to act because he has set in motion a chain of events
- family duty
- duty to act because he has voluntarily promised to care for V
- duty to act through official position
34
Which case demonstrates failure to carry out contractual duty
Pittwood:
-railways crossing keeper omitted to shut gates so that a person crossing line was struck and killed by a train
-keeper guilty of manslaughter because his duty to act was arising from his contract of employment
35
Which case demonstrates Ds duty to act because he has set in motion a chain of events
DPP v SANTANA-BERMUDEZ
- police officer wanted to search Ds pockets
- asked him whether he had any sharp objects, D said no
- police officer cut by syringe he had in his pocket
-d liable for ABH because he had a duty to prevent the harm to police officer by warning her about the needle and had failed to do so
36
Which cause illustrates family duty
GIBBINS AND PROCTOR:
- father deliberately starved his child to death
- failure to feed his own child was an omission which made him satisfy actus reus of murder
37
Which case illustrates duty to act because of voluntary promise to care for V
Stone and dobinson:
- stones elderly sister came to live with Ds
- became ill
- due to incompetence and forgetfulness, both Ds failed to care for her/summon help when she became helpless and V died
- both Ds convicted of manslaughter
- by allowing v to come and live with them they had promised to care for her and then had omitted to do so
38
Which case illustrates duty to act through official position
DYTHAM
-police officer saw violent attack on V but took no steps to intervene or summon help- drove away from scene instead
-officer guilty of neglecting to perform his duty as an officer of justice
39
What does each offence have
It's own mens rea
40
What must the prosecution prove that D had to find them guilty
The relevant mens rea for the offence charged
41
Which offences do not require proof of mens rea in respect of at least part of the actus reus
Strict liability
42
Why are there different levels of mens rea
The law can identify the degree to which a person is at fault for his or her actions
43
What must D have in order to be guilty of the offence
The minimum level of mens rea required by the definition of the offence
44
What are the 3 common states of mind find in criminal liability
- direct intent
- indirect intent
- recklessness
Direct is most blame worthy
45
Direct intent
D directly intends a Reilly where it is his aim/purpose
D actually desires the result that occurs and sets out to achieve it
46
Case and example for direct intent
Mohan
E.g. D deliberately punches v, directly intends to use unlawful force on v
Motive or reason for throwing punch is not relevant whether she has mens rea or not
47
Indirect intent
Court may find that D indirectly intends a result where that result is not desired, but was virtually certain to occur and D knows this
48
Case that illustrates indirect intent
Woollin
-d lost his cool when his baby started to chrome and threw him in the direction of his oram in a fit of frustration
- child missed Pram and fatally struck a wall, trial judge misdirected jury on the law
- house of lords held on appeal that d should be guilty of manslaughter- trial judge should have made it clear that D must know that the undesired result was virtually certain to occur
- jury may find that D indirectly intended the death
49
Recklessness
D will have acted recklessly where he knows there was a risk of the result happening, but takes the risk
50
What case illustrates recklessness
Cunningham
-d tore a gas meter from the wall in an empty house in order to stall the money in it
- this causes gas to seep into house next which made V ill
- d not liable since he did not know there was a risk of gas escaping into Vs house. He had not intended to cause the harm, nor had he taken a risk he knew about it
51
Transferred malice
Where Ds mens rea is directed at one person, but D harms someone else, he can still be guilty.
52
Where is Ds state of mind transferred in transferred malice
To the actual victim, intention/recklessness can be transferred
53
Which case illustrates transferred malice
Latimer
D aimed a blow with an belt at a men in a pub after that man had attacked him
Belt bounced off the man and struck a woman in the face. D convicted of wounding the woman
Intention to harm the man was transferred to the actual victim
54
Where is the principle of transferred malice not available to make d guilty
Where Ds mens rea is for a completely different type of offence
55
In which case was transferred malice not allowed
Pembilton
D threw a stone intending to hit people with whom he'd been fighting
Stone missed them and smashed a pub window
D not liable for the damage to the window as his intention to hit people could not be transferred to property
56
What must be present at the same time in order for an offence to take place
Actus reus and mens rea
57
When do actus reus and mens rea coincide making D guilty
Where there is a continuing act for the actus reus and at some point whilst the act is still going on d has the necessary mens rea
58
Which case illustrates that a continuing act can make D guilty
Fagan v mpc
59
Fagan v mpc
- d told by a police officer to park his car by the kerb
- in doing this D drove into officers foot without realising
- officer asked him to move off but D delayed doing so
- court held that once D knew the car was on the officers foot he had the required mens rea
- as actus reus was still continuing the two elements of the crime were present together
60
What are the two exception where D will still be guilty of an ordence even though AR and MR are not present at the same time
- where actus reus is part of some larger transaction
- where D has voluntarily become intoxicated and then goes on to commit a crime that can be committed recklessly, his intoxication is not a defence. D seen as reckless in getting intoxicated in the first place so has the mens rea for the later offence
61
What are the two main exceptions where d will still be guilty of an offence even though the actus reus and mens rea are not present at the same time
- where the actus reus is part of some larger transaction, it will be sufficient that D forms mens rea at some point during that transaction
- where d has voluntarily become intoxicated and then goes on to commit a crime that can be committed recklessly, his intoxication is not a defence. D seen as reckless in getting intoxicated in first place so has mens rea for later offence
62
Which case demonstrates exceptions to ar and mr occuring simultaneously (larger transaction)
Church
D liable for involuntary manslaughter. AR was part of a larger transaction and D formed mens rea at one point during that transaction
63
what mens rea will be sufficient to find D guilty of an offence where the actus reus is part of some larger transaction
it will be sufficient that D forms the mens rea at some point during that transaction
64
which case illustrates mens rea being suffiecient to occur at some point during a larger transaction where part is actus reus
church
D was liable for involuntary manslaughter. actus reus was part of a larger transaction and D formed mens rea at one point during that transaction
65
which case illustrates liability for voluntary intoxication
DPP v mAJEWSKI
the house of lords upheld his convictions for various assaults, all of which could be committed recklessly (this ignores the principle that actus reus and mens rea must coincide. the decision to drink may be several hours before D commits the actus reus of any offence)
66
what is the general rule that prosecution must prove in crimes for D to be guilty
both actus reus and mens rea
67
what are the two exception to the rule that prosecution must prove actus reus and mens rea for D to be guilty
crimes of strict/absolute liability
68
what is an offence of strict liability
one where the prosecution need not prove mens rea for at least part of the actus reus
69
how must D have committed the actus reus in strict liabilility
voluntarily, but D does not have to be at fault
70
what can D be liable despite in strict liability
despite not having a guilty mind at the time they committed the guilty act
71
what type of offence does HARROW LONDON BOROUGH COUNCIL V SHAH illustrate
strict liability (not having guilty mind at time of committing guilty act)
72
harrow London borough council v shah
Ds liable for selling a lottery ticket to a person under the age of 16 years. the offence did not require MR. the act of selling the ticket to someone who was actually under 16 was enough to make them guilty. even though they had done their best to prevent this happening in their shop. it was more important to try to deal with young people gambling than insist upon proving mens rea
73
callow v tillstone (strict liability)
d convicted of exposing unsound meat for sale even though he was not at fault
74
who are most strict liability cases created by
parliament
75
what may a statute make clear
whether or not a crime is one of strict liability
76
what case illustrates that where there is uncertainty, the courts will start by presuming that the prosecution must prove mens rea
gammon
77
when will the presumption that the prosecution must prove mens rea be set aside in strict liability uncertainty be set aside
where the statute involves an issue of social concern, strict liability will be imposed
78
in what type of offences will the presumption that the prosecution must prove mens rea be set aside
offences which are regulatory in nature as these are not thought of as being truly criminal matters eg food safety and sale of alcohol, prevention of pollution and safe use of vehicles
79
what is the link between social danger and likelihood of strict liability being imposed
the greater the social danger, the more likely strict liability will be imposed
80
which case illustrates links between greater social danger and likelihood of strict liability being imposed
ALPHACELL LTD V WOODWARD
81
ALPHACELL LTD V WOODWARD
there was no evidence that the company had been negligent, but they were strictly liable because it was the utmost public importance that rivers should not be polluted
82
3 main reasons for having offences of strict liability
- help protect society
- easier to enforce strict liability offences
- saves court time
83
how do strict liability offences help protect society
it makes sure businesses are run properly
84
why is it easier to enforce strict liability offences
there is no need for the prosecution to prove mens rea- this would've helped secure the conviction of ALPHACELL
85
why do strict liability offences save court time
Ds are more likely to plead guilty so that no trial is required. the fact that d may not be blameworthy can be taken into account when sentencing
86
what is the main argument against strict liability
it makes people who are not blameworthy guilty
even those who have taken all possible care will be found guilty and can be punished
eg. harrow LBC where ds guilty even though theu had done their best to prevent sales of lottery tickets to anyone under the act of 16
87
what must the prosecution prove where an offence is one of strict liability
that D voluntarily committed the actus reus
88
what happens in strict liability if D acted involuntarily
there is no actus reus and D is not guilty
89
what happens in addition to mens rea not needing to be proved in offences of absolute liability
the actus reus can be involuntary
90
what is the actus reus in absolute liability
state of affairs
91
case demonstrating absolute liability
winzar v chief constable of kent
92
winzar v chief constable of kent
the court upheld his conviction of being found drunk on the highway because this was an offence of absolute liability, designed to deal with the nuisance of public drunkenness. it did not matter that D had been taken to the highway against his will
93
what is an assault
D must intentionally/recklessly cause V to apprehend immediate and unlawful force: IRELAND
94
actus reus of an assault
where by an act or words of D causes V to apprehend immediate or unlawful force
95
what is the rule for actus reus of assault
there must be an act or words for an assault, an omission is not enough
96
in what 3 formats can Ds words be in actus reus for an assault
verbal, written or typed
97
in what case did the court hold that letters could be an assault
constanza
98
in what case was it held that silent phone calls could be an assault- there is no need for any physical contact
ireland
99
what is necessary in the actus reus of assault
that V apprehends unlawful force
100
what does apprehend mean
to be aware of something- v does not have to be scared, nor doing he have to be in danger
101
Logdon V DPP
d was convicted of assault, V did not actually have to be in danger
102
what type of threat by d cannot be an assault
a threat by D to inflict harm in the future. there must be an apprehension of immediate force
103
what is sufficient in timing of assault (AR)
IF d does something that makes V aware that there would be unlawful force at some unpredictable moment in the near future
104
which case indicates that imminence can mean the same as immediate in assault
smith v superintendent of woking police station
105
smith v superintendent of woking police station
v was terrified and did not know what D might do next. unlawful force could well have been imminent
106
what can prevent an act from being an assault
words indicating that there will be no immediate and unlawful force
107
which case illustrates that words indicating that there will be no immediate and unlawful force can prevent as act from being an assault
tuberville v savage
108
tuberville v savage
his words ruled out the threat implied by putting his hand to his sword, so there was not assault
109
what is the mens rea of assault
intention or recklessness as to causing v to apprehend immediate and unlawful force: VENNA
110
what is a battery
d must intentionally or recklessly apply unlawful force to V: Collins v wilcock
111
actus reus of battery
where Ds act or omission applies unlawful force to v
112
what can force include in AR of battery
the slightest touching but not the ordinary 'jostling' of everyday life: COLLINS V WILCOCK
113
why can force include the slightest touching (AR of battery)
implied consent is given to all the touching which is inevitable in everyday life- physical restraint is not acceptable
114
where does unlawful force NOT have to be applied in AR of battery
to Vs body; touching his/her clothes may be enough, even in V feels nothing
115
which case illustrates that AR of battery doesn't mean unlawful force to Vs body
thomas
116
thomas
the court held that touching a persons clothes while she/he was wearing them is equivalent to touching them
117
where are most batteries applied
directly to v's person- usually by striking that person with a fist or some object
118
How else can unlawful force be applied in battery
Through an indirect act such as a booby trap. D causes force to be applied even though he does not personally touch V
119
In which case did D satisfy the actus reus of battery by indirectly applying force to the child
Haystead
120
How else can a conviction involving indirect application of force be justified
By applying the principle of transferred malice
121
When can a battery be committed by omission
If D is under a duty to act e.g. DPP V SANTANA BERMUDEZ
122
What may the actus reus of a battery be
A continuing act, allowing mens rea to be present at the same time
Fagan v mpc
123
Mens rea of a battery
Intention or recklessness as to applying unlawful force to v
VENNA
124
Under what section of what act is it an offence to commit 'any assault occasioning actual bodily harm'
Section 47 of the OFFENCES AGAINST THE PERSON ACT
125
Actus reus of ABH
Must be an assault/battery and this must cause ABH
126
What must D satisfy to be convicted of ABH
The actus reus of an assault/battery
127
What must the assault/battery have occasioned in ABH
It must have occasioned ABH
must be no intervening act which breaks chain of causation from Ds conduct to injury
128
What is ABH
Any hurt or injury calculated to interfere with the health/comfort of V: miller
129
What does the word actual mean in ABH
The injury should not be so trivial as to be wholly insignificant: CHAN FOOK
130
Mens rea of ABH
Mens rea of an assault/the mens rea of a battery
131
What does do not need to satisfy the mens rea of ABH
Does not need to intend or be reckless as to whether ABH is caused to V e.g. Savage
132
Savage
D satisfied mens rea of ABH because she had the mens rea of a battery
133
What is an offence under a.20 OAPA
GBH
maliciously wound
134
Actus reus of s.20 OAPA
Requires D to have inflicted GBH on V or to have wounded V
135
There appears to be very little difference between the two words inflict and cause
Burstow
136
What does GBH mean
Really serious harm: DPP V SMITH
137
Does injury have to be life threatening in GBH
No
138
Why was Burstow liable for inflicting GBH
Ds conduct causes V to suffer severe depression, insomnia and panic attacks
139
What is necessary to take into account when deciding whether injuries amount to GBH
Vs age and health: bollom
140
Which case illustrators that a single minor injury to V, when added to other minor injuries inflicted on V can amount to GBH
Brown and Stratton
141
What does wounding require
A breaking of the whole skin
142
What must the injury be deep enough to break in wounding
The inner skin
143
Which case illustrates that internal bleeding where there is no cut of the skin is insufficient for a wound
JCC V EISENHOWER
144
Is a broken bone considered a wound?
No unless the skin is broken as well
145
What would a serious wound that caused heavy blood loss be also viewed as a
GBH
146
Mens rea for S.20 (GBH AND WOUNDING)
Defined by the word maliciously: must be intention/recklessness that V might suffer some harm: MOWATT
147
Is there any need for D to foresee this level of injury in GBH/WOUNDING
No even though the actus reus requires a wound or GBH
148
Under what section of what act is malicious wounding/GBH, with intent to cause GBH/resist/prevent arrest
S.18 OAPA
149
Actus reus of wounding with intent
Any breaking of the skin- JCC V EISENHOWER
150
Actus reus of GBH with intent
Really serious harm
151
Mens rea of wounding/GBH with intent
Intention to cause GBH
152
Mens rea of resisting/preventing arrest with intention
I room to resist/ avoid arrest and recklessness as to GBH
153
Pre trial procedure for all offences: what can the police decide after arresting and charging D
To release D from police station on bail or keep them in custody until Ds first court appearance
154
Pre trial procedure for all offences: what will the CPS advise the police on
Whether there is enough evidence and if it's in the public interest for the case to proceed to court
155
Pre trial procedure for summary offences: how may D he summoned to court where he hasn't been arrested and taken to a police station
By post
156
Where are all summary offences dealt with
In the magistrates court
157
Pre-trial procedure for all offences: who may D be represented by for the first hearing
By a duty solicitor at the court
158
What is a duty solicitor
Paid by state to represent D in court at no extra cost to D
159
Pre trial procedure for summary offences: purpose of first hearing
For d to enter a plea which could be guilty/not guilty
160
Pre-trial procedure for summary offences: what may occur if a guilty plea is made
Sentencing may take place
| Immediately or the magistrates may adjourn for pre-sentence reports before they pass sentence
161
Pre trial procedure for summary offences: if a not guilty plea is entered what is likely to be adjourned and why
Proceedings are likely to be adjoined for witnesses to be summoned to court and for D to obtain further legal advice
162
Pre-trial procedure for summary offences: if a not guilty plea is made, what must the magistrates decide
Whether D should receive legal aid to help fund advice and representation given by a solicitor
163
Pre-trial procedure for summary offences: for a NOT guilty plea, what must it be in the interests of for D to receive public funding
In the interests of justice
164
Pre-trial procedure for summary offences: if a not guilty plea is made, what test must D pass
A means test
165
Pre-trial procedure for summary offences: what must the magistrates finally decide for a not guilty plea
Whether D should be released on bail until the next court hearing or kept in custody
166
What are assault and battery both
Summary offences
167
Where will assault and battery cases be tried
In the magistrates court
168
Where are all indictable offences transferred after being heard in the magistrates court
To the crown court
169
Pre trial procedure for indictable offences:what is the first hearing at the crown court after the case has been sent by the magistrates
Plea and case management hearing
170
Pre trial procedure for indictable offences: what is the plea and case management hearing's purpose
To ensure that all the necessary steps have been taken into preparation for trial and sufficient information has been provided for a trial date to be arranged
171
Pre trial procedure for indictable offences: what will D enter at a plea and case management hearing
A plea
172
Pre trial procedure for indictable offences: what may happen if D pleads guilty
Sentencing may take place immediately or the judge may adjourn for pre sentence reports before he or she pass sentence
173
Pre trial procedure for indictable offences: if D pleads not guilty then what will take place
Preparations for trial, including how many witnesses and what exhibits (e.g. Weapons) will be produced at the trail
174
Example of an indictable offence
S.18 OAPA 1861
175
Pre trial procedure for indictable offences: what will the jury decide
On guilty or innocence
176
Pre trial procedure for indictable offences: what will occur if D is found guilty
Judge will pass sentence
177
Examples of either way offences
S.47 and s.20 OAPA 1861
178
Pre trial procedure for either-way offences: what procedure is there where D is asked whether he pleads guilty or not guilty to the offence
Plea before venue and allocation procedure
179
Pre trial procedure for either-way offences: what happens if d pleads guilty
The magistrates must decide whether their sentencing powers are sufficient to sentence D or if the case should be committed to the crown court for sentence
180
Pre trial procedure for either-way offences: what must the magistrates work out if D pleads not guilty
The most appropriate court to allocate the case for trial
181
Pre trial procedure for either-way offences: if D pleads not guilty, what will the magistrates hear to help them decide which court to allocate the case to
Arguments from the prosecution and defence, together with any relevant previous convictions
182
Pre trial procedure for either-way offences: generally where should either way offences be tried
In the magistrates court unless it is likely that the courts sentencing powers will be insufficient
183
Pre trial procedure for either-way offences: what will happen if the magistrates feel the case is not suitable for trial by the magistrates court
They will allocate it to the crown court for trial
184
Pre trial procedure for either-way offences: what will happen if the magistrates are prepared to hear the case
d is given a choice of trial court
185
Pre trial procedure for either-way offences: what is D given to help them decide where to have trial court
An indication of the likely sentence
186
Pre trial procedure for either-way offences: what will happen if D chooses trial in magistrates court
There will be an adjournment and the court will have to decide on whether to grant bail or remand D in custody until the trial
187
Pre trial procedure for either-way offences: what will happen if D decides to have their trial in the crown court
There will be a plea and case management hearing in the crown court
188
A decision on what has to be made for all types of offence
A decision has to be made about whether to release D on bail or remand them in custody
189
Who can bail be granted by
The police or the courts
190
Under which act is there a presumption for bail
Section 4 of the bail act 1976
191
Why may the court refuse bail
If they have substantial grounds that there is a risk that D might
- abscond and not turn up to the next stage of the case
- commit a further offence if granted bail
- interfere with witnesses
192
What 4 things will the court take into account when deciding whether to grant bail
- nature and seriousness of offence
- Ds character and community ties
- Ds record in respect of any previous grants of bail
- strength of the evidence against D
193
Why is the nature and seriousness of the offence taken into account when deciding whether to grant bail
If D has been charged with a serious offence like s.20 and s.18 OAPA 1861, he is more likely to abscond because he is likely to be imprisoned if convicted
194
Why is ds character and community ties taken into account when deciding whether to grant bail
If D has close links with that area e.g. He lives with his family/has a local job, he is more likely to turn up at court because he does not want to leave the area
195
Why is Ds record in respect of any previous grants of bail taken into account when deciding whether to grant bail
The court is unlikely to grant bail if D has absconded on an earlier occasion
196
Why is the strength of the evidence against D taken into account when deciding whether to grant bail
If the evidence appears very strong and the crime serious, the chance of bail will be less
197
What two things can bail be
Unconditional or the court can attach conditions
198
Examples of conditions attached to bail
- surrender of Ds passport
- regular reporting at a police station
- placed on a curfew
- requirement of a surety
- residence at a particular address
199
What is a surety
Another person promises to pay a specified sum of money if D fails to turn up
200
What offence is D guilty of when he fails to attend court when required to do so without reasonable court
Absconding
201
What is an accused person presumed in criminal trials
Presumed innocent until proven guilty
202
Who is the burden of proof on at a trial
The prosecution
203
How must the prosecution prove a criminal case
By showing that D satisfies both the required actus reus and the required mens rea for the offence charged
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What is the standard of proof necessary for D to be found guilty at their trail?
Beyond reasonable doubt
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Beyond reasonable doubt
Magistrates/jury should only convict if they're sure of Ds guilt
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What is the most severe form of punishment
Custodial sentences
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What do custodial sentences involve
Imprisonment
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What two things can custodial sentences be
Immediate or suspended
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What is a suspended sentence
Not activated unless the offender commits a further offence
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What is the maximum sentence for s.18 OAPA
Life (court can give lesser sentence where appropriate)
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What is a fixed term prison sentence
A term of imprisonment for a set number of months or years
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What is a suspended prison sentence
Not activated unless the offender commits a further offence
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Community order
Created by criminal justice act 2003 to which courts can attach any requirements they think will both punish and reform the offender
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What requirements can one community order include
Unpaid work requirement
Alcohol/drugs treatment requirement
Supervision requirement
Curfew requirement
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What can financial sentences include
- a fine paid to the state
| - a compensation order paid to the victim
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What are the least serious sentences
Discharges
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When are discharged usually imposed
On first time minor offenders in the MC
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What are the two types of discharge
Conditional/absolute
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Conditional discharge
Where if the offender commits a further offence in the stated period, they can be resentenced for the original offence
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Absolute discharge
No real penalty imposed as the offender is technically guilty but morally blameless
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What two things do judges/magistrates look at when they have to pass sentence
Range of sentences available and what they are trying to achieve by the punishment they give
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Which section of which act sets out the aims of sentencing for those aged 18 and over
Section 142 of the criminal justice act
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What must the court have regard to under in terms of aims of sentencing under the criminal justice act 2003
- punishment of offenders
- reduction of crime
- protection of the public
- reform and rehabilitation of offenders
- making of reparation by offenders to persons affected by their crimes
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What is the aim of punishment/retribution
The idea that if someone has broken the criminal law, they should be punished
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What are the two types of deterrence
Individual and general
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Individual deterrence
Impose severe sentences for crimes so that offenders are deterred from reoffending for fear of the consequences
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General deterrence
Other people are deterred from offending because they don't want the same fate as those convicted
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How is protection of the public achieved
The offender is given a sentence that makes them incapable of committing further crime. A long custodial sentence or community order with a curfew requirement are typically used to achieve this aim
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What does reform/rehabilitation involve
Help the alter the offenders behaviour so that he will not reoffend. The sentence should take into account the personal circumstance of the offender and look to his future. Offenders will usually be given a community order with various requirements aimed at rehabilitating them
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Reparation
Where the sentence tries to ensure that the offender makes amends
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How may reparation be achieved
Through a compensation order
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What factors do courts take into account when sentencing
- max prison sentence allowed by parliament
- max sentencing powers of the court
- whether custodial sentence is necessary
- offenders background and aggravating/mitigating factors
- aims of sentencing
- sentencing guidelines
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What is the maximum prison sentence allowed for assault/battery
Six months imprisonment
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What is the maximum prison sentence allowed for s20/s47
Five years imprisonment
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What is the maximum prison sentence allowed for s.18
Life imprisonment
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What is the maximum sentence a magistrates court can impose for one offence
6 months imprisonment (12 months for two)
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What limits does a judge have on sentencing in crown court
None other than the maximum sentence allowed by parliament
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What type of offence are s47 and s20
Either way
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What can the magistrates court sentence up to if D is found guilty of an either way offence in MC
6 months imprisonment
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What is the maximum sentence the crown court can pass if D is found guilty/pleads guilty of an either way offence
5 years imprisonment
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How often is the maximum period of imprisonment given
Rarely as any kind of custodial sentence like that is often inappropriate
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What does the criminal justice act say iTO passing sentence
Court must not pass offence unless the offence is serious enough
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What must the custodial sentence be in proportion with if a custodial sentence is justified
The seriousness of the offence
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When should an offender convicted of s.18 be given life imprisonment under criminal justice act
Only if it is necessary to protect the public from serious harm from the offender
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What may be referred to when the offenders background and aggravating/mitigating factors are taken into account upon sentencing
Pre sentence report drawn up by the probation service or to a medical/psychiatric report if the offender is ill
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What are aggravating factors
Circumstances which allow the court to impose a more severe sentence than it would normally have given
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3 examples of aggravating factors drawn up in the criminal justice act 2003
- previous convictions for similar offences
- the fact that the assault was premeditated
- the offence was committed whilst D was on bail
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Mitigating factors
Circumstances which allow the court to impose a lower sentence than it would normally have given
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3 examples of mitigating factors
- offender has no previous convictions
- offender is very young/old
- offender has mental/physical illness
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Are aims of sentencing taken into account when sentencing
Yes
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Who are sentencing guidelines issued by
The sentencing council
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What do sentencing guidelines set out
The starting point and the range of sentencing options for an offence and the kind of factors the court should consider
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What may sentencing guidelines suggest
A tariff
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What is a tariff
The sentence appropriate for the average example of the offence
