Defences and basics Flashcards
What is the golden thread
Duty of prosecution to prove D is guilty not for D to prove innocence - presumption of innocence
Which defences reverse the burden of proof
Diminished responsibility and insanity - balance of probabilities
What is the evidential burden
Duty to make issues live in the case. No need to prove, just introduce evidence
How to establish causation
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?
Possible intervening acts
Thin skull rules
Natural events
Acts of V
Acts of third people
What is the thin skull rule
Take v as you find them. Unusual condition won’t break chain of causation
Does a natural event break the chain of causation
If not reasonably foreseeable then it breaks the chain
Can V break the chain of causation
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
Can the act of a third party break the chain of causation
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 ?
What is the doctrine of transferred malice
Allows mens rea to be transferred from intended v to unintended v
What is direct intention
A result D wanted or aimed to produce
What is indirect intention
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
What is the woolin test for intention
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
Test for recklessness
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)
What is strict liability
When one element of the actus reus has no men’s rea so fault is irrelevant
What is absolute liability
When the whole offence has no mens rea
What is maliciousness
D intended to do the particular type of harm or foresaw that it might be done
Defence
Insanity Automatism Voluntary intoxication Age Mistake Consent Self defence Duress Necessity Consent
Is age a defence
Must be 10 or over
Is mistake a defence
If the mistake prevents the forming of the mens rea
Requirements to rely on self defence as a defence?
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
Is voluntary intoxication a defence
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
What is a basic intent crime
Require only proof of recklessness
What is a crime of specific intent
Crimes which required proof of intent
What is automatism
D has no control over body due to external factor and cannot be blamed for that state
Other names for automatism and insanity
Automatism - non insane automatism - external
Insanity - insane automatism - internal
Evidence needed to rely on insanity as a defence
Insanity at time of crime- 2 medical practitioners, at least 1 approved to give evidence
Requirements to rely on defence of insanity
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
What does it mean to not know nature and quality of acts
Means D did not know what he was physically doing or what the consequences were
What is a defect of reasoning
D was deprived of the power of reason
What is a disease of the mind
An internal disorder that impaired Ds mental functions of reason, memory and understanding
Which crimes can the defence of insanity be pleased to
All crimes
Burden of proof for insanity defence
On D to balance of probabilities
Result if insanity defence successful
Not guilty by reason of insanity - disposal order MHA
Test for duress
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?
Which crimes cannot use a defence of duress
Murder
Attempted murder
Treason
When can’t you rely on duress
If you have voluntarily associated with criminals
Can you consider Ds characteristics for a defence of duress
Only if they affect all people eg age
Who must death or serious injury be against for a defence of duress
Family, D, person close to D or person D is responsible for
What is good cause to reasonably believe - duress
Ok if D was mistaken as long as it was a reasonable mistake then defence can still succeed
Is there a defence of necessity
No
What is valid consent
Freedom
Capacity
Sufficient understanding of nature of proposed act
What is consent a defence to
Assault, battery
ABH and GBH only when an exception applies in public interest
who has an evidential AND a legal burden
prosecution
what is Ps evidential burden
provide sufficient evidence for each element of the offence
what is Ds evidential burden
raise some evidence to make the issue live
what is factual causation
but for
what is legal causation
D’s conduct must be a substantial and operation cause of the consequences
can there be multiple causes of the offence or would this break the chain of causation
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.
when does an intervening act break the chain or causation
when is it free, deliberate and not reasonably foreseeable.
do acts of god break the chain
only if unforeseeable
does medical negligence break the chain
unlikely - only if so independent of D’s act and so significant in cause death that D’s actions become insignificant.
does suicide break the chain
not if it is a reasonable response that might be expected in that situation
does V trying to escape break the chain
not if they were forced into the situation because then it isn’t free
do acts of third parties break the chain
only if they are free, deliberate and informed or not reasonably foreseeable
do acts of V after act of D but before consequence of D’s act break the chain
possibly if it was a free, informed and deliberate act
what is direct intention
D seeks to achieve the consequences of their act
what is indirect intention
consequences are by-product of the principle aim
what is another name for indirect intention
oblique intention
how does woolin define indirect intention
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)
what is the test for recklessness
this risk was unjustified or unreasonable (objective - RP)
D foresaw the risk and went on to take it (subjective)
test for negligence
objective - falls below standard of RP
how to decide if a crime is strict liability
either the court or the statute decide. Presumption in favour of mens rea.
what is strict liability
when mens rea not required for one or more elements of the actus reaus
2 ways in which the AR and MR can coincide in time
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
requirements for transferred malice to apply
must be an intention or recklessness MR crime not negligence. AR must be same for both crimes
what is a basic intent crime
recklessness or intention
what is a specific intent crime
only intention
what is an offence of ulterior intent
additional MR element
what should you consider when a party is not guilty of a specific intent crime due to intoxication
whether there is a lesser basic intent crime they can be convicted of
is involuntary intoxication a defence
yes to any offence (basic and specific intent) if D lacks MR. Cannot rely on this defence if D had MR
when can’t you rely on mistaken belief for self defence
when mistaken belief is due to intoxication
can you rely on self defence if you are intoxicated
only if your reaction did not exceed that of a sober person in the same situation
what sort of belief do you need to hold to rely on the defence of lawful excuse for criminal damage and arson
genuine belief
can you rely on defence of lawful excuse for criminal damage and arson if you hold a mistaken belief due to intoxication
if the belief was a mistake and only made it due to intoxication then the defence is still avaliable
who has burden of proving self defence
D has evidential burden the P must disprove beyond reasonable doubt
when can self defence be relied on
when necessary to defend themselves or another from attack or prevent a criminal offence (subjective)
can you rely on a mistaken belief for self defence
yes a mistaken but honest belief is okay because they test is subjective - did D believe it was necessary (unless due to intoxication)
can you rely on a mistaken belief for self defence WHERE THE BELIEF IS UNREASONABLE
yes - subjective test - Did D believe it was necessary (unless due to intoxication)
how much force can be used for self defence
amount of force used must be reasonable in the circumstances - objective
are Ds characteristics taken in to consideration when deciding whether D used reasonable force in self defence
physical characteristics are considered but Ds psychiatric condition is not relevant
does D need to retreat before using force to rely on self defence
no - but can take it in to consideration when deciding if force used was reasonable
how do householder cases differ when using self defence
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.
who can rely on householder case law when using self defence
they need not be the homeowner but cannot be a trespasser and must be in or partly in the dwelling
Does D have to wait to be attacked before using self defence
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
