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Criminal > Defences and basics > Flashcards

Defences and basics Flashcards

1
Q

What is the golden thread

A

Duty of prosecution to prove D is guilty not for D to prove innocence - presumption of innocence

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2
Q

Which defences reverse the burden of proof

A

Diminished responsibility and insanity - balance of probabilities

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3
Q

What is the evidential burden

A

Duty to make issues live in the case. No need to prove, just introduce evidence

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4
Q

How to establish causation

A

Causation in fact - but for
Causation in law- operating and substantial cause of death. Ongoing at time of harm. Doesn’t need to be only cause, just A cause. More than slight link.
Intervening act?

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5
Q

Possible intervening acts

A

Thin skull rules
Natural events
Acts of V
Acts of third people

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6
Q

What is the thin skull rule

A

Take v as you find them. Unusual condition won’t break chain of causation

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7
Q

Does a natural event break the chain of causation

A

If not reasonably foreseeable then it breaks the chain

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8
Q

Can V break the chain of causation

A

If V causes own injury through free and voluntary act the chain is broken. If V not acting freely then ask was Vs act a reasonably foreseeable consequence of ads act. If yes then D cause Vs injury if no D didn’t cause it

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9
Q

Can the act of a third party break the chain of causation

A

Free, deliberate and informed act of third party can break chain but a reasonable act in self defence does not
Is act of third party normal or extraordinary ?

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10
Q

What is the doctrine of transferred malice

A

Allows mens rea to be transferred from intended v to unintended v

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11
Q

What is direct intention

A

A result D wanted or aimed to produce

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12
Q

What is indirect intention

A

D did not want or aim to produce it but did foresee the result as very likely to occur as a result of their actions

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13
Q

What is the woolin test for intention

A

Is the result a virtually certain consequence of Ds actions?
Did d realise it was a virtually certain consequence
Does the jury decided it is appropriate to find intent?

Need yes to every question for intent

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14
Q

Test for recklessness

A

D foresaw the risk of harm being cause by their acts and decided to act anyway (subjective)
Ds taking of the risk was unjustified (objective)

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15
Q

What is strict liability

A

When one element of the actus reus has no men’s rea so fault is irrelevant

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16
Q

What is absolute liability

A

When the whole offence has no mens rea

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17
Q

What is maliciousness

A

D intended to do the particular type of harm or foresaw that it might be done

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18
Q

Defence

A 
Insanity 
Automatism 
Voluntary intoxication 
Age
Mistake
Consent 
Self defence
Duress 
Necessity 
Consent
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19
Q

Is age a defence

A

Must be 10 or over

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20
Q

Is mistake a defence

A

If the mistake prevents the forming of the mens rea

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21
Q

Requirements to rely on self defence as a defence?

A

Force used must be reasonable in the circumstances AS D SEES THEM - doesn’t need to be a reasonable belief and can rely on mistaken belief unless due to intoxication
To prevent crime, defend yourself, another person or property from attack or threat of attack
Amount of force used is assessed objectively- irrelevant what D thought was reasonable

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22
Q

Is voluntary intoxication a defence

A

Never

Specific intent crimes- did D have mens rea? If so drunk they don’t know what they’re doing they might not have mens rea

Basic intent crimes- would D have MR when sober? If yes then MR is formed. Would need to show they wouldn’t foresee risk when sober

Cannot use as defence if Dutch courage

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23
Q

What is a basic intent crime

A

Require only proof of recklessness

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24
Q

What is a crime of specific intent

A

Crimes which required proof of intent

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25
Q

What is automatism

A

D has no control over body due to external factor and cannot be blamed for that state

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26
Q

Other names for automatism and insanity

A

Automatism - non insane automatism - external

Insanity - insane automatism - internal

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27
Q

Evidence needed to rely on insanity as a defence

A

Insanity at time of crime- 2 medical practitioners, at least 1 approved to give evidence

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28
Q

Requirements to rely on defence of insanity

A

Defect of reason from disease of mind so did not know nature and quality of acts
OR
Defect of reason from disease of mind and did know nature and quality of act but did not know what he was doing was wrong

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29
Q

What does it mean to not know nature and quality of acts

A

Means D did not know what he was physically doing or what the consequences were

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30
Q

What is a defect of reasoning

A

D was deprived of the power of reason

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31
Q

What is a disease of the mind

A

An internal disorder that impaired Ds mental functions of reason, memory and understanding

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32
Q

Which crimes can the defence of insanity be pleased to

A

All crimes

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33
Q

Burden of proof for insanity defence

A

On D to balance of probabilities

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34
Q

Result if insanity defence successful

A

Not guilty by reason of insanity - disposal order MHA

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35
Q

Test for duress

A

D had good cause to reasonably believe if they did not do it they will kill or cause serious injury
And
A sober person of reasonable firmness sharing Ds characteristics would have done the same

Imminent? Escape?

36
Q

Which crimes cannot use a defence of duress

A

Murder
Attempted murder
Treason

37
Q

When can’t you rely on duress

A

If you have voluntarily associated with criminals

38
Q

Can you consider Ds characteristics for a defence of duress

A

Only if they affect all people eg age

39
Q

Who must death or serious injury be against for a defence of duress

A

Family, D, person close to D or person D is responsible for

40
Q

What is good cause to reasonably believe - duress

A

Ok if D was mistaken as long as it was a reasonable mistake then defence can still succeed

41
Q

Is there a defence of necessity

A

No

42
Q

What is valid consent

A

Freedom
Capacity
Sufficient understanding of nature of proposed act

43
Q

What is consent a defence to

A

Assault, battery

ABH and GBH only when an exception applies in public interest

44
Q

who has an evidential AND a legal burden

A

prosecution

45
Q

what is Ps evidential burden

A

provide sufficient evidence for each element of the offence

46
Q

what is Ds evidential burden

A

raise some evidence to make the issue live

47
Q

what is factual causation

A

but for

48
Q

what is legal causation

A

D’s conduct must be a substantial and operation cause of the consequences

49
Q

can there be multiple causes of the offence or would this break the chain of causation

A

there can be multiple causes of the result and it doesn’t matter that D’s actions were just one of these. there can be more than one person liable. The fact that there are multiple causes doesn’t stop D from being liable.

50
Q

when does an intervening act break the chain or causation

A

when is it free, deliberate and not reasonably foreseeable.

51
Q

do acts of god break the chain

A

only if unforeseeable

52
Q

does medical negligence break the chain

A

unlikely - only if so independent of D’s act and so significant in cause death that D’s actions become insignificant.

53
Q

does suicide break the chain

A

not if it is a reasonable response that might be expected in that situation

54
Q

does V trying to escape break the chain

A

not if they were forced into the situation because then it isn’t free

55
Q

do acts of third parties break the chain

A

only if they are free, deliberate and informed or not reasonably foreseeable

56
Q

do acts of V after act of D but before consequence of D’s act break the chain

A

possibly if it was a free, informed and deliberate act

57
Q

what is direct intention

A

D seeks to achieve the consequences of their act

58
Q

what is indirect intention

A

consequences are by-product of the principle aim

59
Q

what is another name for indirect intention

A

oblique intention

60
Q

how does woolin define indirect intention

A

if not direct intention then consider:
what the consequence a virtually certain outcome from Ds act or omission (Objective test) and
Did D appreciate the consequence was virtually certain (subjective - what did D foresee. not what RP would foresee)

61
Q

what is the test for recklessness

A

this risk was unjustified or unreasonable (objective - RP)

D foresaw the risk and went on to take it (subjective)

62
Q

test for negligence

A

objective - falls below standard of RP

63
Q

how to decide if a crime is strict liability

A

either the court or the statute decide. Presumption in favour of mens rea.

64
Q

what is strict liability

A

when mens rea not required for one or more elements of the actus reaus

65
Q

2 ways in which the AR and MR can coincide in time

A

continuing act - ongoing AR and MR occurs later while AR is still ongoing
single transaction principle - sequence of events MR present for initial act and subsequent act caused AR. From the outside D is involved in criminal activity so time lapse between events doesn’t matter because there is a sequence of events

66
Q

requirements for transferred malice to apply

A

must be an intention or recklessness MR crime not negligence. AR must be same for both crimes

67
Q

what is a basic intent crime

A

recklessness or intention

68
Q

what is a specific intent crime

A

only intention

69
Q

what is an offence of ulterior intent

A

additional MR element

70
Q

what should you consider when a party is not guilty of a specific intent crime due to intoxication

A

whether there is a lesser basic intent crime they can be convicted of

71
Q

is involuntary intoxication a defence

A

yes to any offence (basic and specific intent) if D lacks MR. Cannot rely on this defence if D had MR

72
Q

when can’t you rely on mistaken belief for self defence

A

when mistaken belief is due to intoxication

73
Q

can you rely on self defence if you are intoxicated

A

only if your reaction did not exceed that of a sober person in the same situation

74
Q

what sort of belief do you need to hold to rely on the defence of lawful excuse for criminal damage and arson

A

genuine belief

75
Q

can you rely on defence of lawful excuse for criminal damage and arson if you hold a mistaken belief due to intoxication

A

if the belief was a mistake and only made it due to intoxication then the defence is still avaliable

76
Q

who has burden of proving self defence

A

D has evidential burden the P must disprove beyond reasonable doubt

77
Q

when can self defence be relied on

A

when necessary to defend themselves or another from attack or prevent a criminal offence (subjective)

78
Q

can you rely on a mistaken belief for self defence

A

yes a mistaken but honest belief is okay because they test is subjective - did D believe it was necessary (unless due to intoxication)

79
Q

can you rely on a mistaken belief for self defence WHERE THE BELIEF IS UNREASONABLE

A

yes - subjective test - Did D believe it was necessary (unless due to intoxication)

80
Q

how much force can be used for self defence

A

amount of force used must be reasonable in the circumstances - objective

81
Q

are Ds characteristics taken in to consideration when deciding whether D used reasonable force in self defence

A

physical characteristics are considered but Ds psychiatric condition is not relevant

82
Q

does D need to retreat before using force to rely on self defence

A

no - but can take it in to consideration when deciding if force used was reasonable

83
Q

how do householder cases differ when using self defence

A

degree of force is not reasonable if it was grossly disproportionate - this means they can use more than proportionate force but cannot go over the top.

84
Q

who can rely on householder case law when using self defence

A

they need not be the homeowner but cannot be a trespasser and must be in or partly in the dwelling

85
Q

Does D have to wait to be attacked before using self defence

A

no provided they honestly believed the force was necessary to ward off the attack. danger they apprehend must be sufficiently specific or imminent to justify Ds actions

Criminal (4 decks)

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