FLK Criminal Law Flashcards
What is the actus reus?
Actus Reus: The guilty conduct of the offence. It is usually an act, but may be an omission for some offences.
(1) Voluntary: The act or omission must be voluntary (Hill v Baxter).
(2) Defence of Automatism: If conduct is involuntary, this is a complete defence, provided the Defendant is entirely blameless. The Defendant has the burden of proof, to prove on balance of probabilities.
What are the different types of offences?
Types of Offence: Different offences have different forms of actus reus.
(1) Conduct Crime: Defendant’s conduct itself was illegal, such as penetration without consent.
(2) Result Crime: Defendant’s conduct resulted in an unlawful consequence, such as stabbing someone and thereby causing their death.
(3) State of Affairs Crime: Defendant had no control over their conduct yet still incurred criminal liability, known as ‘absolute liability’, which requires no mens rea (R v Larssonneur).
Types of Offence: Offences differ by mens rea.
(1) Specific Intent: Offence requires intention alone.
(2) Basic Intent: Offence requires intention or recklessness.
(3) Negligence: Offence merely requires negligence or carelessness, such as careless driving.
Careless Driving: Liable even in emergency (McCrone v Riding).
Dangerous Driving: Driving which falls far below reasonable standards, including dangerous vehicles.
(4) Strict Liability: Offences which only require actus reus, and no guilty conscience. Most of these are laid out in the Contempt of Court Act 1981.
Defences: Cannot rely on defences which negate the state of mind, as state of mind is irrelevant.
When will a defendant be liable for omitting to act?
Omissions: Defendant may be liable for omitting to act in 5 situations.
(1) Parent-Child: A parent assumes responsibility for their young child, and may be liable for their death by omitting to act for them (Children and Young Person Act 1993).
(2) Assumption of Responsibility: A special relation may arise if a defendant assumes care for someone, and then fails to care for them (R v Stone and Dobison).
Exception: If the victim chooses their own fate, this is okay (R v Smith).
Discharging Duty: Courts may discharge this duty, such as permitting hospitals to turn off brain dead patients (Airedale v Bland).
(3) Contractual Duties: A contract of employment may oblige a person to act, such as to ensure signalling works for trains (R v Pittwood).
(4) Statutory Duties: Legislation may impose a duty to act, such as requiring people to stop at a red light or at the scene of a crash they have been involved in (RTA 1988).
(5) Dangerous Situations: Individuals must remove dangers they have created through reasonable endeavours, and are responsible for harms caused by failing to do so (R v Miller).
What is causation?
Causation: There is both ‘factual’ and ‘legal’ causation.
(1) Factual: But for the act or omission, the consequences of the act would not have followed. (2) Legal: The act was the substantial and operating cause of the consequence. Substantial: More than minimal or trifling. Operative: The actual cause, not negated by substantial intervening acts. (3) Intervening Acts: An intervening act may ‘break’ the chain of causation, rendering the defendant not liable. Natural Event: A natural event may break the chain if unforeseeable. Victim: The victim may break the chain if voluntary and so daft as to be unforeseeable (R v Roberts). Third Party: A third party may break the chain if free, deliberate and informed. Medical: Medical intervening act must be so grossly negligent as to relegate the original act to the background.
(4) Egg-Shell Skull: Victims are to be taken as they come - simply being weaker than the average person does not make the defendant any less culpable for their actions and the consequences of them.
What is the mens rea?
Mens Rea: Mens Rea is the guilty conscience of the defendant, key to most crimes. The threshold differs by offence.
(1) Determination: Gleaned from common law or statutory definition of an offence. If this is silent, mens rea is presumed, unless the law makes unmistakably clear that it is not required (Sweet v Parsley; R v Brown).
(2) Coincidence with AR: AR and MR should coincide in time to amount to an offence (Thabo-Meli).
Effect: This may be a prolonged single event (R v Le Brun).
Intention
Intention: Some crimes require intention.
(1) Direct: The outcome was the defendant’s aim, purpose or design.
(2) Indirect/Oblique: The outcome was a virtually certain consequence of the defendant’s action, as subjectively recognised by the defendant (Nedrick; Woollin). Juries have discretion to establish this.
Utility: Only available for crimes of specific intent.
(3) Ulterior: Certain crimes require ulterior intent, which means an intention to do something in excess of the original crime, liable even if the intended consequence was not carried out.
Recklessness
Recklessness: Some crimes require recklessness.
(1) Definition: Defendant subjectively foresaw or appreciated the consequence of their actions as a risk prior to taking it, and was objectively unreasonable in those perceived circumstances to take (Cunningham; R v G).
(2) Justification: A risk may be justified in a number of instances, such as a rescue attempt which resulted in someone being mistakenly hurt.
Transfer of Malice
Transfer of Malice: If a defendant intends or is reckless to committing an offence, but accidentally applies it to the wrong party or object, they are still guilty (R v Latimer).
Exception: This does not transfer for different offences. For example, intending to shoot someone, missing and causing property damage will not transfer malice; intending to shoot someone and hitting someone else will.
Attempts: Will generally be simultaneously guilty of an attempt of the failed offence.
What is the defence of self-defence and prevention of crime?
Self-Defence and Prevention of Crime: Individuals are permitted to use ‘reasonable force’ to defend themselves or others, or prevent crimes from being committed. This is a complete defence, meaning liability is wholly removed.
(1) In Practice: Though available for a range of offences, this defence is typically raised in respect of assaults and homicides. These offences often require acts to be ‘unlawful’ - this defence renders the act lawful.
(2) Burden of Proof: Defendants must raise this defence if they wish to rely on it. However, the Prosecution has the burden of disproving it (beyond reasonable doubt).
(3) Elements: It must be determined that force was necessary in the circumstances, and reasonable therein.
Necessary in Circumstances
Necessary in Circumstances: It must be necessary to use force in the circumstances as believed by the Defendant. This is subjective.
(1) Circumstances: The Defendant must base this necessity off of the facts perceived at the time. This means they cannot claim self-defence based on facts they learn after-the-fact (R v Dadson).
>(A) hits (B) over the head unprovoked. (A) later learns (B) had just robbed a bank. (A) cannot claim self-defence as they did not have this knowledge at the time.
(2) Mistaken Belief: The Defendant can still claim self-defence if they made a mistake as to the circumstances, provided the mistake was honestly made. This is a subjective test (R v Williams).
- Honest: Honest simply means the mistaken facts were truly believed by the Defendant, irrespective of how reasonable the mistake was to make.
- In Practice: In practice, the less reasonable a mistake is to make, the less likely the jury is to believe that the mistake was honest.
Exceptions: Mistakes are not honest if they owe to psychiatric issues (R v Martin) or voluntary intoxication (R v O’Grady).
>It is unclear what the effect of making a mistake during intoxication that a sober person would also have made is.
Reasonable Force
Reasonable Force: The force used must be reasonable, according to the facts as the Defendant believed them. This is objective.
(1) Reasonable: The ordinary person would regard the force used as proportionate, in the context of the circumstances as the Defendant honestly believed them to be.
>Revenge and retaliation are never reasonable.
>The greater the threat, the greater the force permitted.
>Courts can consider physical characteristics, such as an old person being more at risk. They cannot consider psychological characteristics here.
(2) Householder Reasonableness: Householder’s (non-trespassers in an occupied dwelling) can use disproportionate force to protect themselves against perceived trespassers (s67 CJIA).
>Dwellings include occupied vehicles or vessels.
>Force is only unreasonable if grossly disproportionate (Collins v Secretary of State).
>(A) is awoken in the night by a burglary in their room. They can hit them with a bat, which is disproportionate but reasonable. They cannot stab the person 15 times, as this is grossly disproportionate.
Additional Considerations
Additional Considerations: A number of additional considerations must be made when considering self-defence.
(1) Pre-Emptive Strikes: Defendants do not need to be attacked before reacting in self-defence. They need merely honestly apprehended an immediate and sufficient threat (Beckford v R).
(2) Preliminary Retreat: Defendants do not need to attempt retreat before reacting in self-defence. However, this may affect how reasonable force was (s76 CJIA).
(3) Heat of the Moment: Courts recognise that self-defence often occurs in the ‘heat of the moment’. Defendants are not expected to ‘weigh up to a nicety the exact measure of necessary action’ (s76).
>This means courts grant more leniency when considering what was ‘reasonable’ and ‘honest’ at the time.
What is the defence of intoxication?
Intoxication: Defendants may be able to rely on a state of intoxication a defence to state of mind offences, meaning offences that require intent or recklessness.
Voluntary Intoxication
Voluntary Intoxication: Individuals who were knowingly and freely intoxicated at the time of offence may partially reduce their liability by claiming voluntary intoxication (DPP v Majewski).
(1) Defence: Defendants have a partial defence to a crime of specific intent if their voluntary intoxication prevented them from forming the necessary intent, except for sexual assaults (R v Heard).
(2) Effect: Successful defence means the Defendant is charged with a related offence of basic intent (R v Lipman).
>(A) gets very drunk and beats another man, breaking his bones. If he successfully pleads voluntary intoxication, he can reduce s18 GBH (intent) to s20 GBH (intent and recklessness).
(3) Underestimation: It is irrelevant that a person miscalculated the strength of their intoxicant so long as they consumed it voluntarily (R v Allen).
(4) Dutch Courage: Voluntarily intoxicating oneself in order to gain courage to commit an offence is not a defence, as the necessary intent was already formed (AG v Gallagher).
(5) Mistaken Facts: The effect of mistake whilst voluntarily intoxicated will differ by offence.
Criminal Damage: Defendants can rely on a mistaken belief to consent in defence to criminal damage, even if derived through voluntary intoxication (Jaggard v Dickinson).
>(A) drunkenly breaks into what they think is their friend’s house after a night out, thinking they would consent. Instead, it is their friend’s neighbours. They can rely on mistaken consent.
Self-Defence: Defendants cannot rely on mistaken belief to warrant self-defence if derived through voluntary intoxication (R v O’Grady).
>(A) drunkenly believes a person to be swinging a punch at them, even though they are going to open a door. (A) punches them to protect himself. (A) cannot rely on self-defence.
Involuntary Intoxication
Involuntary Intoxication: Involuntary intoxication is a complete defence to any offence, provided the Defendant did not possess the mens rea prior to intoxication (R v Kingston).
(1) Involuntary: This means the Defendant was intoxicated against their will and knowledge, or consumed a subject through which intoxication was objectively unforeseeable.
>Being spiked with a drug is involuntary (R v Kingston).
>Consuming prescription medication with an adverse side-effect is involuntary intoxication (R v Hardie).
(2) Mens Rea: The Defendant must not have had the intent or motive to commit the offence. If the involuntary intoxication simply reduces their inhibitions to conduct an offence, then there is no defence.
>Individual attracted to children was involuntarily drugged. This relieved their inhibitions, and they had sexual intercourse with a child. Involuntary intoxication was therefore not a defence (R v Kingston).
What are assaults?
Offences against the person are non-fatal assaults, governed under two main acts (CJA and OAPA).
How is an assault established?
Simple/Common Assault: Causing a victim to apprehend immediate and unlawful application of personal force (s39 CJA).
(1) Actus Reus: Defendant commits act which causes victim to apprehend an immediate use of personal force. Apprehension: Victim themself must apprehend force, but need not be in fear. Threats towards third parties are not enough. Action: This can be a perceived physical movement, or words alone, or even silence (R v Ireland). Stalking: Stalking can amount to simple assault, such as silent calls (R v Burstow). Conditional Threats: Conditional threats only suffice if it amounts to perceiving an immediate threat, i.e. ‘if you do not leave right this second I will break your neck’ (Read v Coker). Words Negating Threat: If the defendant says words to negate the threat then it is not assault, i.e. ‘if I was stupid I would hit you’ (Tuberville v Savage). Requirement: Victim must stop believing that an assault is imminent. Context Negating Threat: Where it is obvious the defendant is joking, such as ‘I wish I could set this place on fire’ about a school as a joke, it is not assault as it is obviously a joke (Chambers v DPP). (2) Mens Rea: Intention or recklessness to cause the victim’s apprehension (R v Venna). Test: Defendant subjectively recognised risk of apprehension (R v Spratt).
How is battery established?
Physical Assault/Battery: Defendant inflicts unlawful personal force on victim (s30 CJA).
(1) Actus Reus: Defendant unlawfully inflicts personal force on victim. Personal Force: Direct or indirect force, such as placing hazardous obstacles (Haystead v Derbyshire; DPP v K). Delayed Force: Force may also be delayed, such as by setting traps. Omission: Can arise by omission if the defendant accidentally applies force but then refuses to remove force. Injury: There is no injury required.
(2) Mens Rea: Defendant intended or recklessness to either inflicting force, or to causing victim to apprehend use of unlawful force.
How is s 47 assault established?
Section 47 ABH: Defendant inflicts actual bodily harm on victim (s47 OAPA).
(1) Actus Reus: Defendant commits actual bodily harm on victim. This is harm which interferes with the health or comfort of the victim, and is more than transient or trifling (R v Miller; R v Donovan).
Mental Harm: Medically recognised mental harm will suffice, but not rage or panic (R v Ireland).
Threshold: CPS tends to charge only if effecting medical treatment or permanent effects.
Escapes: If a victim reasonably harms themself to escape a common law assault, this can be ABH.
(2) Mens Rea: Defendant intended or reckless to a common law assault. Harm need not be foreseen.
How is s 20 established?
Section 20 GBH/Wounding: Defendant maliciously wounds or causes GBH of victim (s20 OAPA).
(1) Actus Reus: Unlawfully inflicts wounding or causing GBH of a victim. Unlawful: Without lawful justification, i.e. self-defence (R v Horwood). Wound: Breaking both layers of skin, but not bruising or internal bleeding (Moriarty v Brooks). Internal Bleeding: More likely to constitute GBH. GBH: Really serious harm, as determined by jury (DPP v Smith). Examples: Skull fracture, internal injuries, broken bones. Psychiatric Harm: Can constitute GBH if sufficiently serious (R v Burstow). (2) Mens Rea: Intention or recklessness to cause ABH, i.e. some harm. Effect: Only need to foresee some bodily harm, need not be really serious (Savage; Parmenter).
How is s 18 established?
Section 18 GBH with Intent: Defendant intentionally wounds or causes GBH of victim (s18 OAPA).
(1) Actus Reus: Unlawfully causing wounding or GBH of victim (differs from ‘inflict’, deemed to be wider). (2) Mens Rea 1: Defendant intended to cause GBH (not wounding). (3) Mens Rea 2: Or intended to resist lawful arrest and intended or was reckless to causing ABH (not GBH).
What is the defence of consent?
Defence of Consent: Consent to assault may act as a complete defence.
(1) Implied Consent: Courts will imply consent into normal situations, such as busy bustling on a street.
(2) Express Consent: Victims can consent to common law assaults if they know the nature and quality of the act they are consenting to, and do so freely (R v Tabassum).
Children: Children can consent, provided the jury deems them to have sufficient intelligence and understanding to do so.
(3) Method: Must be expressed or implied in a legally recognised manner, and given with capacity, freedom and information. If ABH or GBH, must fall within a legally valid category of consent.
Consent to Statutory Harm
Consent to Statutory Harm: Generally, one cannot consent to ABH/GBH, subject to exceptions (A-G Reference No 6; R v Brown), typically if they have social benefit or it would be unreasonable to criminalise due to tradition.
(1) Surgery: One can consent to surgical operations. (2) Dangerous Exhibitions: One can consent to dangerous exhibitions.
(3) Properly Conducted Sports: One can consent to properly conducted sports, provided the injury is within the confines of the sport, and not a deliberate assault. Conduct beyond rules is assault, but must be more than just outside the rules (R v Barnes).
Implied Consent: Consent is implied, unless injury is intended (other than combat sports).
(4) Body-Modification: Victims can consent to tattooing and piercing, but not serious irreversible body modifications beyond those traditionally practised.
>Man could not legally consent to having his body modified into a lizard man (R v BM).
(5) Horseplay: Light horseplay is generally okay.
(6) Religious Practices: Traditional religious practices are permitted, i.e. ritual circumcision.
(7) Sexual Infection: One may consent to sexual infection if they are fully informed. If the infected person is aware and the other is not, and they intend to transmit the infection, it is a criminal offence.
(8) Sadomasochism: Courts will not generally consent to sadomasochistic harm, unless it is within a marital context.
What is the actus reus of homicide offences?
Actus Reus: The unlawful causation of the death of another human being.
(1) Unlawful: Not justified in law. ‘Lawful’ killing usually means self-defence. (2) Human Being: A person alive independently of the mother’s womb (R v Poulton). Unborn: The unborn are incapable of being killed. Must be fully delivered. However, manslaughter may be possible if a baby is born and then dies for wounds inflicted in the womb. Conjoined Twins: Conjoined twins are two human beings, and one or both may be killed (Re A Children). (3) Causation: The usual rules of causation apply.
(4) Death: Death means the irreversible death of the brainstem (R v Malcherek).
Effect: This means one will be capable of death even if technically they died after machine off.
How is the offence of murder established?
Murder: The unlawful killing of a reasonable creature in being under the King’s peace with malice aforethought (Coke).
(1) Actus Reus: See above. King’s Peace: Killing a combatant in war is not murder. Omissions: Omissions will amount to murder if there is a duty of care to the victim.
(2) Mens Rea: Malice aforethought, meaning intention to kill or cause serious bodily harm (R v Inglis). This includes mercy killings.
What is diminished responsibility?
Diminished Responsibility: A partial defence to murder, which must be proved by the defendant on balance (s52 CJA). AR and MR of murder must be made out.
(1) Abnormality of Mental Functioning: The defendant suffered from abnormal processes of the mind. (2) Medical Recognition: The abnormalities were caused by a medical condition. Condition: Condition need not be psychological - any condition which then impairs the mind is ok.
(3) Substantial Impairment: The condition must have substantially impaired the defendant’s ability to understand their nature, or form rational judgment, or exercise self control.
Substantial: This is ‘important or weighty’ (R v Golds).
(4) Explained Role: The impairment must have played a role in the homicide, though need not be the sole cause, and can be combined with intoxication (R v Dietschmann).
Exception: If the murder was premeditated, abnormality is irrelevant.
What is loss of control?
Loss of Control: A partial defence to murder, need merely be raised by the defendant, but disproved by the prosecution beyond reasonable doubt (ss54-55 CJA). AR and MR of murder must be made out.
(1) Loss of Control: The defendant’s act or omission resulted from a loss of control. This cannot be revenge.
(2) Qualifying Trigger: The loss of control had an objective qualifying trigger, though need not have been immediately prior to the killing. Either (or both):
Fear Trigger: The defendant feared serious violence from the victim towards themselves or another identified person.
Anger Trigger: The victim said or did things of extremely grave consequence which caused the defendant to have a justifiable sense of being seriously wronged.
Exception: Sexual infidelity or provocation will not suffice, but will not rule out the defence if there are other qualifying factors.
(3) Same Age: A hypothetical person of the defendant’s age and sex might have reacted the same way. (4) In Practice: Usually relied upon by battered women.
