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intro to criminal liability Flashcards

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1
Q

actus reus

A

the physical element of a crime

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2
Q

3 types of actus reus

A
  • voluntary act causing a consequence
  • voluntary omission resulting in a consequence
  • D being in a certain state of affairs
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3
Q

what must Ds act/omission be to have committed the actus reus

A

voluntary

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4
Q

is D at fault if he has no control over his actions

A

no, he has not committed the actus reus

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5
Q

in which case did the court give examples where a driver of a vehicle could not be said to be doing the act of driving voluntarily

A

HILL V BAXTER

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6
Q

which examples were given in HILL V BAXTER where a driver could not be guilty of a driving offence

A

where a driver lost control of his vehicle because he was:

  • stung by a swarm of bees
  • struck on head by a stone
  • had a heart attack whilst driving
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7
Q

when can involuntary conduct occur

A

in assaults

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8
Q

if person A pushes person B and they bump into the victim, is Bs conduct voluntary?

A

involuntary and they would not be guilty of any assault

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9
Q

in which situation may defence of insanity/automatism be available

A

where D hits V due to a reflex action/muscle spasm- D not in control of his body

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10
Q

in which situation may the defence of duress be available

A

if there is a threat that D will be killed if he doesn’t commit an assault- Ds conduct viewed as involuntary and there will be an absence of fault

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11
Q

where the actus reus requires a consequence to be proved, what do the prosecution have to show?

A
  • Ds conduct was factual cause of consequence
  • Ds conduct was legal cause of consequence
  • no intervening act which broke chain of causation from Ds conduct to consequence
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12
Q

when will D be a factual cause of the consequence

A

if the consequence wouldn’t have happened ‘but for’ Ds conduct

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13
Q

case illustrating factual cause

A

PAGETT

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14
Q

PAGETT

A

she would not have died ‘but for’ him using her as a shield in the shoot out

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15
Q

when will D be a legal cause of a consequence

A

if Ds conduct was more than a ‘minimal’ cause of the consequence. others may contribute to consequenc.

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16
Q

which case illustrates legal cause

A

BENGE

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17
Q

BENGE

A

D was still a legal cause of the deaths as his conduct was more than a minimal cause

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18
Q

what must there be from Ds conduct to consequence in causation

A

a direct link ie. no intervening act which breaks this chain of causation

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19
Q

rule on causation regarding third party and case

A

where Ds conduct causes reasonably foreseeable action by third party: chain of causation will remain unbroken: PAGETT

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20
Q

rule on causation regarding medical negligence and case

A

medical negligence is unlikely to break the chain of causation unless it is so independent of Ds act and ‘in itself so potent in causing death’ that Ds acts are insignificant- CHESHIRE

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21
Q

CHESHIRE

A

the medical complications were a direct consequence of the shooting and Ds act was still a significant cause of Vs death

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22
Q

rule on causation relating to Vs own conduct and case

A

vs own conduct unlikely to break chain of causation unless it is so daft that a reasonable person would not have foreseen V reacting in that way - ROBERTS

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23
Q

ROBERTS

A

D was held to be liable for Vs injuries as her reaction was reasonably foreseeable

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24
Q

rule on causation relating to thin skull rule and case

A

chain of causation wont be broken if V has something unusual about them which makes them more vulnerable. d must take V as he finds him- BLAUE

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25
Q

BLAUE

A

he had to take the victim as he found her

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26
Q

what is normal rule on omission

A

an omission cannot make a person guilty of an offence

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27
Q

exception to general rule of an omission relating to statutory duty and example

A

a statute may require D to act and omitting to do so will satisfy actus reus- eg motorist driving with no insurance under ROAD TRAFFIC ACT commits an offence

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28
Q

exeception to general rule on omission relating to common law

A

common law may require D to act and omitting to do so will satisfy actus reus

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29
Q

examples of common law requiring D to act and omitting will satisfy actus reus

A
  • contractual duty to act: pitwood

- D under duty to act because he has set in motion a chain of events: dpp v Santana bermudez

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30
Q

PITTWOOD

A

the keeper was guilty of manslaughter because of the duty to act arising from his contract of employment

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31
Q

DPP V SANTANA BERMUDEZ

A

D liable for ABH because he had a duty to prevent the harm to the police officer by warning her about the needle and failed to do so

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32
Q

what is mens rea

A

the mental element of an offence- the ‘guilty mind’. each offence has its own mens rea

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33
Q

what must the prosecution prove in relation to mens rea to find D guilty

A

that D had the relevant mens rea for the offence charged

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34
Q

what are the only exceptions to the rule that prosecution must prove D had relevant mens rea to find him guilty

A

offences of strict liability- don’t require proof of mens rea in respect of at least part of AR

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35
Q

why are there different levels of mens rea

A

so the law can identify the degree to what a person is at fault for their actions. to be guilty d must have at least minimum level of mens rea required by definition of offence

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36
Q

when does D directly intend a result and case

A

where it is his aim/purpsose. D actually desires the result that occurs and sets out to achieve it: MOHAN

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37
Q

when does D indirectly intend a result and case

A

where that result is not desired but was virtually certain to occur AND D KNOWS THIS: WOOLIN

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38
Q

when will d have acted recklessly and case

A

where he knows there was a risk of result happening but takes that risk: cunningham

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39
Q

Cunningham:

A

D was not liable since he didn’t know there was a risk of gas escaping into Vs house. he had not intended to cause harm nor had he taken a risk he knew about

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40
Q

how can D still be guilty where his mens rea is directed at one person but he harms someone else

A

Ds state of mind is transferred to the actual victim

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41
Q

which case illustrates Ds state of mind transferred to the victim:

A

latimer

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42
Q

latimer

A

his intention to harm the man was transferred to the actual victim

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43
Q

when is the principle of transferred malice not available to make d guilty

A

where Ds mens rea is for a completely different type of offence

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44
Q

which case illustrates that transferred malice is not available to make D guilty where Ds mens rea is for a completely different type of offence

A

pembilton

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45
Q

pembilton

A

he was not liable for the damage to the window because his intention to hit people could not be transferred to property

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46
Q

when must the actus reus and mens rea be present in order for an offence to take place usually

A

at the same time

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47
Q

what is the where the actus reus is a continuing act

A

if at some point, while the act is still going on, D has the necessary mens rea- the two do coincide and d will be guilty

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48
Q

case to support the coincidence rule

A

fagan

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49
Q

fagan

A

the court held that once D knew the car was on the officers foot he had the required mens rea. as AR was still continuing, the two elements of the crime were present together

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50
Q

what are the two exceptions where d will still be guilty of an offence even though AR and MR are not present at same time

A
  • AR part of some larger transaction

- d has become voluntarily intoxicate and commits an offence that can be committed recklessly

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51
Q

what is the exception to the coincidence rule where the actus reus is part of some larger transaction and case

A

it will be sufficient that D forms mens rea at some point during that transaction- CHURCH

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52
Q

CHURCH

A

d liable for involuntary manslaughter. AR was part of a larger transaction and D formed mens rea at one point during that transaction- when D struck V in van.

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53
Q

what is the exception to the coincidence to the coincidence rule where D voluntarily becomes intoxicated and then commits an offence that can be committed recklessly and case

A

his intoxication is not a defence. D seen as reckless in getting intoxicated in first place so has the mens rea for the later offence- DPP V MAJEWSKI

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54
Q

DPP V MAJEWSKI

A

H/L upheld his convictions for various assaults, all of which could be committed recklessly

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55
Q

how does voluntary intoxication exception ignore the principle that AR and MR must coincide

A

the decision to drink may be several hours before D commits AR of offence

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56
Q

what does an offence of strict liability mean

A

one where the prosecution need not prove mens rea for at least part of the actus reus

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57
Q

in what manner must D have committed actus reus for strict liability

A

voluntary but need not be at fault. D can be ;iable for the offence even though he/she didn’t have guilty mind at the time they committed the guilty act

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58
Q

HARROW LONDON BOROUGH COUNCIL V SHAH (SL)

A

Ds were liable for selling a lottery ticket to a person underage
offence didn’t require any mens rea
act of selling ticket to someone under 16 enough to make them guilty even though theyd done their best to prevent this happening in their shop
more important to try and deal with problem of young people gambling than insist upon proof of mens rea

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59
Q

CALLOW V TILLSTONE (SL)

A

D convicted of exposing unsound meat for sale, even though he wasn’t an fault

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60
Q

who are most strict liability offences created by

A

parliament

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61
Q

what may a statute make clear (sl)

A

whether or not a crime is one of strict liability

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62
Q

what is the presumption where a statute doesn’t make clear whether or not a crime is one of strict liability

A

the case of GAMMON means that the courts will start by presuming that the prosecution must prove mens rea

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63
Q

when will the presumption that prosecution must prove mens rea be set aside and strict liability imposed

A

where the statute involves an issue of social concern

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64
Q

for which offences is the presumption that mens rea must be proved most often set aside

A

offences which are regulatory in nature as these are not thought of as being truly criminal matters eg food safety and prevention of pollution

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65
Q

what Is the correlation between social danger and likelihood that strict liability will be imposed

A

the greater the social danger, the more likely strict liability will be imposed- particularly if it would be effective in promoting higher standards

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66
Q

which case illustrates that social danger will mean strict liability is likely imposed

A

ALPHACELL V WOODWARD

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67
Q

ALPHACELL V WOODWARD

A

there was no evidence that the company had been negligent, but they were strictly liable because it was of utmost public importance that rivers shouldn’t be polluted

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68
Q

3 reasons for having offences of strict liability

A
  • helps protect society
  • easier to enforce
  • saves court time
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69
Q

how do strict liability offences help protect society

A

it makes sure that businesses are run properly

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70
Q

why is it easier to enforce strict liability offences

A

there is no need for prosecution to prove mens rea eg alphacell

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71
Q

how does strict liability save court time

A

ds more likely to plead guilty so that no trial is required. fact that D may not be blameworthy can be taken into account when sentencing

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72
Q

what is a crime of absolute liability

A

in addition to mens rea not needing to be proved, the AR can be involuntary- such crimes are rare and AR is a state of affairs

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73
Q

case illustrating absolute liability

A

WINZAR V CHIEF CONTABLE KENT

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74
Q

WINZAR V CHIEF CONSTABLE OF KENT

A

the court upheld his conviction because this was an offence of absolute liability, designed to deal with the nuisance of public drunkenness. it did not matter than d had been taken to highway against his will

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75
Q

s.39 criminal justice act

A

assault/battery

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76
Q

category and max sentence for assault/battery

A

summary/ 6 months

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77
Q

actus reus assault

A

where by an act/words causes v to apprehend immediate and unlawful force

78
Q

which case states that immediate can mean imminent (assault)

A

SMITH V SWPS

79
Q

which case states that AR for assault can be written

A

constanza

80
Q

whch case states that AR for assault can be silent

A

IRELAND

81
Q

mens rea assault

A

intention/recklessness as to causing v to apprehend immediate and unlawful force: VENNA

82
Q

case to support mens rea for assault/battery

A

VENNA

83
Q

actus reus battery

A

where ds act/omission applies unlawful force to v

84
Q

which case states that AR for battery states that D need not touch vs body

A

THOMAS

85
Q

which case states that AR for battery can be indirect

A

HAYSTEAD

86
Q

mens rea battery

A

intention/recklessness as to applying unlawful force to V: VENNA

87
Q

s.47 OAPA

A

assault occasioning ABH

88
Q

category and max sentence s.47

A

ether way/ 5 years

89
Q

actus reus abh

A
  1. must first be an assault/battery

2. this must cause actual bodily harm

90
Q

which case supports AR ABH

A

CHAN FOOK

91
Q

CHAN FOOK

A

the word ‘actual’ means the injury should not be so trivial as to be wholly insignificant

92
Q

mens rea ABH

A

intention/recklessness as to an assault/battery SAVAGE V PARMENTER

93
Q

which case supports mens rea ABH

A

SAVAGE V PARMENTER

94
Q

s.20 OAPA

A

malicious wounding/GBH

95
Q

category and max sentence s.20

A

either way/5 years

96
Q

actus reus wounding

A

any breaking of the skin JCC V EISENHOWER

97
Q

case to support AR wounding

A

JCC V EISENHOWER

98
Q

actus reus GBH

A

really serious harm: DPP V SMITH

99
Q

case to support AR GBH

A

DPP V SMITH

100
Q

which case states that the nature of the victim is relevant in AR GBH

A

BOLLOM

101
Q

which case states that several minor injuries amount to really serious harm AR GBH

A

brown and stratton

102
Q

which case states that AR of GBH can be psychological

A

burstow

103
Q

mens rea for s.20

A

defined by the word maliciously. must be intention/recklessness that v might suffer some harm- MOWATT

104
Q

which case supports mens rea for s.20

A

MOWATT

105
Q

s.18 OAPA

A

malicious wounding/GBH with intent to cause GBH or resist/prevent arrest

106
Q

category and max sentence s.18

A

indictable/life

107
Q

actus reus s.18

A

same as s.20

108
Q

mens rea s.18

A

intention to cause GBH or intention to resist/avoid arrest and recklessness as to GBH

109
Q

what are the two courts which hear criminal trails

A

MC AND CC

110
Q

how is the actual court for the trial decided

A

by the category of the crime involved

111
Q

summary offence

A
  • minor crimes eg assault

- tried in MC only

112
Q

indictable offence

A
  • serious crimes eg s.18 OAPA

- tried in CC only

113
Q

either way offence

A
  • middle range offences which can vary in degree of harm caused eg s.47 oapa
  • may be tried at either court
114
Q

pre trial procedure for ALL offences: after D has been arrested and charged by police what can they decide?

A

to release D from station on bail/keep them in custody until Ds first court appearance

115
Q

pre trial procedure for ALL offences: what will the CPS advise the police on

A

whether there is enough evidence and if its in the public interest for case to proceed to court

116
Q

pre trial procedure for SUMMARY offences ONLY: how will D be summoned to court where he hasn’t been arrested and taken to police station

A

by post

117
Q

pre trial procedure for SUMMARY offences ONLY: where are all summary offences tried?

A

MC

118
Q

pre trial procedure for ALL offences: why may D be represented by at a first hearing

A

duty solicitor: paid by state to represent D at no cost to D

119
Q

pre trial procedure for SUMMARY offences ONLY: what is the purpose of the first hearing

A

for D to enter a plea which could be guilty/not guilty

120
Q

pre trial procedure for SUMMARY and INDICTABLE offences ONLY: what will happen if a guilty plea is entered

A

sentencing may take place immediately/ magistrates/judge may adjourn for pre sentence reports to be drawn up before they pass sentence

121
Q

pre trial procedure for SUMMARY offences ONLY: what will happen if d enters a not guilty plea

A

proceedings likely to be adjourned for witnesses to be summoned to court and for D to obtain further legal advice

122
Q

pre trial procedure for SUMMARY and INDICTABLE offences ONLY: what is the process around whether d should receive legal aid or not

A
  • legal aid is to help fund advice and representation given by a solicitor
  • must be in interests of justice for D to receive public funding and must pass a means test
123
Q

pre trial procedure for ALL offences: what must the magistrates decide between court hearings

A

whether D should be released on bail until next court hearing or kept in custody (indictable- all transferred to crown court)

124
Q

examples of summary offences

A

assault and battery, always tried in mc

125
Q

pre trial procedure for INDICTABLE offences ONLY: what is the first hearing at the crown court after the case has been sent by the magistrates

A

plea and case management hearing

126
Q

pre trial procedure for INDICTABLE offences ONLY: purpose of plea and case management hearing

A

ensure all necessary steps have been taken in preparation for the trial and sufficient information has been provided for a trial date to be arranged

127
Q

pre trial procedure for INDICTABLE offences ONLY: what will d enter at a plea and case management hearing

A

a plea

128
Q

pre trial procedure for INDICTABLE offences ONLY: what will happen if D pleads not guilty

A

preparations for trial will take place, including how many witnesses will be called and what exhibits will be produced at the trial

129
Q

example of an indictable offence

A

s.18 OAPA- always tried in CC

130
Q

what will jury decide on at indictable offence trial

A

guilt/innocence

131
Q

what will the judge do if D is found guilty of an indictable offence

A

pass sentence

132
Q

pre trial procedure for EITHER WAY offences ONLY: during what procedure is D asked whether he pleads guilty/not guilty to the offence

A

plea before venue and allocation procedure

133
Q

examples of either way offences

A

s.20 s.47 OAPA

134
Q

pre trial procedure for EITHER WAY offences ONLY: what must the magistrates decide if D pleads guilty

A

whether their sentencing powers are sufficient to sentence D or if the case should be committed to the crown court for sentence

135
Q

pre trial procedure for EITHER WAY offences ONLY: what must the magistrates work out if D pleads not guilty

A

the most appropriate court to allocate the case for trial

136
Q

pre trial procedure for EITHER WAY offences ONLY: what will the magistrates hear to help them decide which is the most appropriate court to allocate the case for trial where d pleads not guilty

A

hear arguments from prosecution and defence, together with any relevant previous convictions

137
Q

pre trial procedure for EITHER WAY offences ONLY: where should either way offences be tried and what is the exception

A

should be tried in MC unless its likely that the courts sentencing powers will be insufficient

138
Q

pre trial procedure for EITHER WAY offences ONLY: what will the magistrates do if they feel the case is not suitable for trial by a magistrates court where d enters not guilty plea

A

allocate it to crown court for trial

139
Q

pre trial procedure for EITHER WAY offences ONLY: what choice is D given if magistrates are prepared to hear the case where D pleads not guilty

A

a choice of trial court- indication of likely sentence given to help him/her decide

140
Q

pre trial procedure for EITHER WAY offences ONLY: what will happen if D chooses the magistrates court for trial

A

adjournment and the court will have to decide whether to grant bail/remand D in custody until the trial

141
Q

pre trial procedure for EITHER WAY offences ONLY: what will happen if D chooses crown court for trial

A

plea and case management hearing

142
Q

what decision must be made for all types of offence

A

whether to release D on bail/remand them in custody

143
Q

who can bail be granted by

A

the courts or the police

144
Q

what presumption does section 4 of the bail act 1976 give

A

a presumption for bail

145
Q

when can the court refuse bail

A
  • if the court has substantial grounds for believing that there is a risk D might:
  • abscond and not turn up to next stage of case
  • commit a further offence if granted bail
  • interfere with witnesses
146
Q

what 4 things will the court take into account when making a decision on bail

A
  • nature and seriousness of offence
  • Ds character and community ties
  • Ds record in respect of any previous grants of bail
  • strength of evidence against D
147
Q

how will courts take into account nature of offence when deciding bail

A

if D has been charged with a serious offence (eg. s.20) he is more likely to abscond because he is likely to be imprisoned if convicted

148
Q

how will courts take into account Ds character and community ties when deciding bail

A

if D has close links with that area, he is more likely to turn up at court because he does not want to leave the area

149
Q

how will courts take into account Ds record in respect to any previous grants of bail when deciding bail

A

the court is unlikely to grant bail if D has absconded on an earlier occasion

150
Q

how will courts take into account the strength of evidence against D when deciding bail

A

if the evidence appears very strong and the crime serious, the chance of bail will be less

151
Q

can bail be unconditional aswell as the court attaching conditions

A

yes

152
Q

examples of conditions the court can attach to bail

A
  • surrender of Ds passport
  • regular reporting to police station
  • residence at a particular address
  • curfew
153
Q

what offence is D guilty of if he fails to attend court when required to do so without reasonable cause

A

absconding

154
Q

what does ‘an accused person is presumed innocent until proven guilty’ mean?

A

the burden of proof at a trial is on the prosecution

155
Q

how must the prosecution prove the case

A

by showing that D satisfies both the required AR and MR of the offence charged

156
Q

standard of proof

A

‘beyond reasonable doubt’

157
Q

what does ‘beyond reasonable doubt’ mean

A

magistrates/jury should only convict if they are sure of Ds guilt

158
Q

what type of sentence is the most severe form of punishment and what does it involve

A

custodial

-imprisonment which is either immediate/suspended

159
Q

which 2 sentences can be given for imprisonment

A

max life sentence for s.18

fixed term prison sentence

160
Q

what is the max sentence for s.18

A

life imprisonment but the court can give any lesser sentence where appropriate

161
Q

what is a fixed term prison sentence

A

a term of imprisonment for a set number of months or years

162
Q

what did the criminal justice act create

A

one community order to which the court can attach any requirements they think will both punish and reform the offender

163
Q

which 4 requirements can a community order include

A
  • unpaid work
  • alcohol/drug treatment
  • supervision
  • curfew
164
Q

what is an unpaid work requirement

A

offender has to carry out unpaid work between 40-300 hours over a year on a project organised by probation service

165
Q

what is a supervision requirement

A

where the offender is placed under the regular supervision of a probation officer for a period of up to 3 years

166
Q

what can financial sentences include

A
  • fine paid to state

- compensation order paid to victim

167
Q

what are the least serious sentences and who are they usually imposed upon

A

discharges

usually imposed upon first-time minter offenders in the mc

168
Q

what are the 2 types of discharge

A

conditional/absolute

169
Q

what is a conditional discharge

A

where if the offender commits a further offence in the stated period, they can be resentenced for the original offence

170
Q

what is an absolute discharge

A

no real penalty imposed as the offender is technically guilty but morally blameless

171
Q

what 2 things will judge/magistrates look at when they have to pass sentence

A

range of sentences available and what they’re trying to achieve by the punishment they give

172
Q

punishment/retribution

A

-the idea that if someone has broken the criminal law, they should be punished and get their ‘just deserts’

173
Q

reduce offending

A
  • to punish in such a way to achieve this
  • individual deterrence: impose severe sentences for crimes so that offenders are deterred from reoffending for fear of the consequences
  • general deterrence: other people deterred from offending because they do not want the same fate
174
Q

protection of the public

A
  • offender given a sentence that makes them incapable of committing further crime
  • long custodial sentence/curfew requirement usually given to achieve this aim
175
Q

reform and rehabilitation

A
  • reform offender and rehabilitate him back into society
  • help to alter offenders behaviour so that he will not reoffend
  • sentence should take into account personal circumstances of offender and look to his future
  • usually given community order with various requirements to rehabilitate them
176
Q

reparation

A

where the sentence tries to ensure that the offender makes amends, may be achieved through compensation order

177
Q

what 6 things will court take into account when deciding sentence

A
  • max sentence allowed by parliament
  • man sentencing powers of court
  • offenders background/aggravating/mitigating factors
  • aims of sentencing
  • sentencing guidelines
178
Q

what is the max prison sentence for assault/battery

A

6 months imprisonment

179
Q

what is the max sentence for s.47 or s.20 OAPA

A

5 years imprisonment

180
Q

what is the max sentence for s.18 OAPA

A

life imprisonment

181
Q

what is the max sentence that the mc can impose

A

6 months for one offence

182
Q

what is the max sentence that a judge in the cc can impose

A

no such limit than max sentence allowed by parliament for offence

183
Q

if d pleads guilty or is found guilty of s.47/s.20 (either way) in mc, what can magistrates impose

A

up to 6 months imprisonment

184
Q

if d pleads guilty or is found guilty of s.47/s.20 (either way) in cc, what can judge impose

A

up to years imprisonment for offence

185
Q

what may be involved in taking the offenders background and aggravating/mitigating factors into account

A

referring to pre sentence report drawn up by the probation service/ to medical/psychiatric report if the offender is ill

186
Q

what are aggravating factors

A

circumstances which allow the court to impose a more severe sentence than it would have normally given

187
Q

examples of aggravating factors given in criminal justice act:

A 
previous convictions
premeditated
committed on bail
unprovoked
racist/religious hostility
hostility on grounds of disability/sexuality
committed against vulnerable victim and d knows this
use of a weapon
offender being part of a group
v serving public 
alcohol/drug influenced
188
Q

what are mitigating factors

A

circumstances which allow the court to impose a lower sentence than it would have normally given

189
Q

examples of mitigating factors in the criminal justice act

A 
no previous convictions
young/old offender
mental/physical illness of D
offender shows genuine remorse
cooperation with police 
provocation by v 
d pleaded guilty at first opportunity
190
Q

what else will be taken into account when sentencing (AOS)

A

aims of sentencing

Law (39 decks)

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