intro to criminal liability Flashcards
actus reus
the physical element of a crime
3 types of actus reus
- voluntary act causing a consequence
- voluntary omission resulting in a consequence
- D being in a certain state of affairs
what must Ds act/omission be to have committed the actus reus
voluntary
is D at fault if he has no control over his actions
no, he has not committed the actus reus
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
HILL V BAXTER
which examples were given in HILL V BAXTER where a driver could not be guilty of a driving offence
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
when can involuntary conduct occur
in assaults
if person A pushes person B and they bump into the victim, is Bs conduct voluntary?
involuntary and they would not be guilty of any assault
in which situation may defence of insanity/automatism be available
where D hits V due to a reflex action/muscle spasm- D not in control of his body
in which situation may the defence of duress be available
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
where the actus reus requires a consequence to be proved, what do the prosecution have to show?
- 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
when will D be a factual cause of the consequence
if the consequence wouldn’t have happened ‘but for’ Ds conduct
case illustrating factual cause
PAGETT
PAGETT
she would not have died ‘but for’ him using her as a shield in the shoot out
when will D be a legal cause of a consequence
if Ds conduct was more than a ‘minimal’ cause of the consequence. others may contribute to consequenc.
which case illustrates legal cause
BENGE
BENGE
D was still a legal cause of the deaths as his conduct was more than a minimal cause
what must there be from Ds conduct to consequence in causation
a direct link ie. no intervening act which breaks this chain of causation
rule on causation regarding third party and case
where Ds conduct causes reasonably foreseeable action by third party: chain of causation will remain unbroken: PAGETT
rule on causation regarding medical negligence and case
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
CHESHIRE
the medical complications were a direct consequence of the shooting and Ds act was still a significant cause of Vs death
rule on causation relating to Vs own conduct and case
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
ROBERTS
D was held to be liable for Vs injuries as her reaction was reasonably foreseeable
rule on causation relating to thin skull rule and case
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
BLAUE
he had to take the victim as he found her
what is normal rule on omission
an omission cannot make a person guilty of an offence
exception to general rule of an omission relating to statutory duty and example
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
exeception to general rule on omission relating to common law
common law may require D to act and omitting to do so will satisfy actus reus
examples of common law requiring D to act and omitting will satisfy actus reus
- contractual duty to act: pitwood
- D under duty to act because he has set in motion a chain of events: dpp v Santana bermudez
PITTWOOD
the keeper was guilty of manslaughter because of the duty to act arising from his contract of employment
DPP V SANTANA BERMUDEZ
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
what is mens rea
the mental element of an offence- the ‘guilty mind’. each offence has its own mens rea
what must the prosecution prove in relation to mens rea to find D guilty
that D had the relevant mens rea for the offence charged
what are the only exceptions to the rule that prosecution must prove D had relevant mens rea to find him guilty
offences of strict liability- don’t require proof of mens rea in respect of at least part of AR
why are there different levels of mens rea
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
when does D directly intend a result and case
where it is his aim/purpsose. D actually desires the result that occurs and sets out to achieve it: MOHAN
when does D indirectly intend a result and case
where that result is not desired but was virtually certain to occur AND D KNOWS THIS: WOOLIN
when will d have acted recklessly and case
where he knows there was a risk of result happening but takes that risk: cunningham
Cunningham:
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
how can D still be guilty where his mens rea is directed at one person but he harms someone else
Ds state of mind is transferred to the actual victim
which case illustrates Ds state of mind transferred to the victim:
latimer
latimer
his intention to harm the man was transferred to the actual victim
when is the principle of transferred malice not available to make d guilty
where Ds mens rea is for a completely different type of offence
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
pembilton
pembilton
he was not liable for the damage to the window because his intention to hit people could not be transferred to property
when must the actus reus and mens rea be present in order for an offence to take place usually
at the same time
what is the where the actus reus is a continuing act
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
case to support the coincidence rule
fagan
fagan
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
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
- AR part of some larger transaction
- d has become voluntarily intoxicate and commits an offence that can be committed recklessly
what is the exception to the coincidence rule where the actus reus is part of some larger transaction and case
it will be sufficient that D forms mens rea at some point during that transaction- CHURCH
CHURCH
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.
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
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
DPP V MAJEWSKI
H/L upheld his convictions for various assaults, all of which could be committed recklessly
how does voluntary intoxication exception ignore the principle that AR and MR must coincide
the decision to drink may be several hours before D commits AR of offence
what does an offence of strict liability mean
one where the prosecution need not prove mens rea for at least part of the actus reus
in what manner must D have committed actus reus for strict liability
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
HARROW LONDON BOROUGH COUNCIL V SHAH (SL)
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
CALLOW V TILLSTONE (SL)
D convicted of exposing unsound meat for sale, even though he wasn’t an fault
who are most strict liability offences created by
parliament
what may a statute make clear (sl)
whether or not a crime is one of strict liability
what is the presumption where a statute doesn’t make clear whether or not a crime is one of strict liability
the case of GAMMON means that the courts will start by presuming that the prosecution must prove mens rea
when will the presumption that prosecution must prove mens rea be set aside and strict liability imposed
where the statute involves an issue of social concern
for which offences is the presumption that mens rea must be proved most often set aside
offences which are regulatory in nature as these are not thought of as being truly criminal matters eg food safety and prevention of pollution
what Is the correlation between social danger and likelihood that strict liability will be imposed
the greater the social danger, the more likely strict liability will be imposed- particularly if it would be effective in promoting higher standards
which case illustrates that social danger will mean strict liability is likely imposed
ALPHACELL V WOODWARD
ALPHACELL V WOODWARD
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
3 reasons for having offences of strict liability
- helps protect society
- easier to enforce
- saves court time
how do strict liability offences help protect society
it makes sure that businesses are run properly
why is it easier to enforce strict liability offences
there is no need for prosecution to prove mens rea eg alphacell
how does strict liability save court time
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
what is a crime of absolute liability
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
case illustrating absolute liability
WINZAR V CHIEF CONTABLE KENT
WINZAR V CHIEF CONSTABLE OF KENT
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
s.39 criminal justice act
assault/battery
category and max sentence for assault/battery
summary/ 6 months
actus reus assault
where by an act/words causes v to apprehend immediate and unlawful force
which case states that immediate can mean imminent (assault)
SMITH V SWPS
which case states that AR for assault can be written
constanza
whch case states that AR for assault can be silent
IRELAND
mens rea assault
intention/recklessness as to causing v to apprehend immediate and unlawful force: VENNA
case to support mens rea for assault/battery
VENNA
actus reus battery
where ds act/omission applies unlawful force to v
which case states that AR for battery states that D need not touch vs body
THOMAS
which case states that AR for battery can be indirect
HAYSTEAD
mens rea battery
intention/recklessness as to applying unlawful force to V: VENNA
s.47 OAPA
assault occasioning ABH
category and max sentence s.47
ether way/ 5 years
actus reus abh
- must first be an assault/battery
2. this must cause actual bodily harm
which case supports AR ABH
CHAN FOOK
CHAN FOOK
the word ‘actual’ means the injury should not be so trivial as to be wholly insignificant
mens rea ABH
intention/recklessness as to an assault/battery SAVAGE V PARMENTER
which case supports mens rea ABH
SAVAGE V PARMENTER
s.20 OAPA
malicious wounding/GBH
category and max sentence s.20
either way/5 years
actus reus wounding
any breaking of the skin JCC V EISENHOWER
case to support AR wounding
JCC V EISENHOWER
actus reus GBH
really serious harm: DPP V SMITH
case to support AR GBH
DPP V SMITH
which case states that the nature of the victim is relevant in AR GBH
BOLLOM
which case states that several minor injuries amount to really serious harm AR GBH
brown and stratton
which case states that AR of GBH can be psychological
burstow
mens rea for s.20
defined by the word maliciously. must be intention/recklessness that v might suffer some harm- MOWATT
which case supports mens rea for s.20
MOWATT
s.18 OAPA
malicious wounding/GBH with intent to cause GBH or resist/prevent arrest
category and max sentence s.18
indictable/life
actus reus s.18
same as s.20
mens rea s.18
intention to cause GBH or intention to resist/avoid arrest and recklessness as to GBH
what are the two courts which hear criminal trails
MC AND CC
how is the actual court for the trial decided
by the category of the crime involved
summary offence
- minor crimes eg assault
- tried in MC only
indictable offence
- serious crimes eg s.18 OAPA
- tried in CC only
either way offence
- middle range offences which can vary in degree of harm caused eg s.47 oapa
- may be tried at either court
pre trial procedure for ALL offences: after D has been arrested and charged by police what can they decide?
to release D from station on bail/keep them in custody until Ds first court appearance
pre trial procedure for ALL offences: what will the CPS advise the police on
whether there is enough evidence and if its in the public interest for case to proceed to court
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
by post
pre trial procedure for SUMMARY offences ONLY: where are all summary offences tried?
MC
pre trial procedure for ALL offences: why may D be represented by at a first hearing
duty solicitor: paid by state to represent D at no cost to D
pre trial procedure for SUMMARY offences ONLY: what is the purpose of the first hearing
for D to enter a plea which could be guilty/not guilty
pre trial procedure for SUMMARY and INDICTABLE offences ONLY: what will happen if a guilty plea is entered
sentencing may take place immediately/ magistrates/judge may adjourn for pre sentence reports to be drawn up before they pass sentence
pre trial procedure for SUMMARY offences ONLY: what will happen if d enters a not guilty plea
proceedings likely to be adjourned for witnesses to be summoned to court and for D to obtain further legal advice
pre trial procedure for SUMMARY and INDICTABLE offences ONLY: what is the process around whether d should receive legal aid or not
- 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
pre trial procedure for ALL offences: what must the magistrates decide between court hearings
whether D should be released on bail until next court hearing or kept in custody (indictable- all transferred to crown court)
examples of summary offences
assault and battery, always tried in mc
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
plea and case management hearing
pre trial procedure for INDICTABLE offences ONLY: purpose of plea and case management hearing
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
pre trial procedure for INDICTABLE offences ONLY: what will d enter at a plea and case management hearing
a plea
pre trial procedure for INDICTABLE offences ONLY: what will happen if D pleads not guilty
preparations for trial will take place, including how many witnesses will be called and what exhibits will be produced at the trial
example of an indictable offence
s.18 OAPA- always tried in CC
what will jury decide on at indictable offence trial
guilt/innocence
what will the judge do if D is found guilty of an indictable offence
pass sentence
pre trial procedure for EITHER WAY offences ONLY: during what procedure is D asked whether he pleads guilty/not guilty to the offence
plea before venue and allocation procedure
examples of either way offences
s.20 s.47 OAPA
pre trial procedure for EITHER WAY offences ONLY: what must the magistrates decide if D pleads guilty
whether their sentencing powers are sufficient to sentence D or if the case should be committed to the crown court for sentence
pre trial procedure for EITHER WAY offences ONLY: what must the magistrates work out if D pleads not guilty
the most appropriate court to allocate the case for trial
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
hear arguments from prosecution and defence, together with any relevant previous convictions
pre trial procedure for EITHER WAY offences ONLY: where should either way offences be tried and what is the exception
should be tried in MC unless its likely that the courts sentencing powers will be insufficient
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
allocate it to crown court for trial
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 choice of trial court- indication of likely sentence given to help him/her decide
pre trial procedure for EITHER WAY offences ONLY: what will happen if D chooses the magistrates court for trial
adjournment and the court will have to decide whether to grant bail/remand D in custody until the trial
pre trial procedure for EITHER WAY offences ONLY: what will happen if D chooses crown court for trial
plea and case management hearing
what decision must be made for all types of offence
whether to release D on bail/remand them in custody
who can bail be granted by
the courts or the police
what presumption does section 4 of the bail act 1976 give
a presumption for bail
when can the court refuse bail
- 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
what 4 things will the court take into account when making a decision on bail
- 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
how will courts take into account nature of offence when deciding bail
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
how will courts take into account Ds character and community ties when deciding bail
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
how will courts take into account Ds record in respect to any previous grants of bail when deciding bail
the court is unlikely to grant bail if D has absconded on an earlier occasion
how will courts take into account the strength of evidence against D when deciding bail
if the evidence appears very strong and the crime serious, the chance of bail will be less
can bail be unconditional aswell as the court attaching conditions
yes
examples of conditions the court can attach to bail
- surrender of Ds passport
- regular reporting to police station
- residence at a particular address
- curfew
what offence is D guilty of if he fails to attend court when required to do so without reasonable cause
absconding
what does ‘an accused person is presumed innocent until proven guilty’ mean?
the burden of proof at a trial is on the prosecution
how must the prosecution prove the case
by showing that D satisfies both the required AR and MR of the offence charged
standard of proof
‘beyond reasonable doubt’
what does ‘beyond reasonable doubt’ mean
magistrates/jury should only convict if they are sure of Ds guilt
what type of sentence is the most severe form of punishment and what does it involve
custodial
-imprisonment which is either immediate/suspended
which 2 sentences can be given for imprisonment
max life sentence for s.18
fixed term prison sentence
what is the max sentence for s.18
life imprisonment but the court can give any lesser sentence where appropriate
what is a fixed term prison sentence
a term of imprisonment for a set number of months or years
what did the criminal justice act create
one community order to which the court can attach any requirements they think will both punish and reform the offender
which 4 requirements can a community order include
- unpaid work
- alcohol/drug treatment
- supervision
- curfew
what is an unpaid work requirement
offender has to carry out unpaid work between 40-300 hours over a year on a project organised by probation service
what is a supervision requirement
where the offender is placed under the regular supervision of a probation officer for a period of up to 3 years
what can financial sentences include
- fine paid to state
- compensation order paid to victim
what are the least serious sentences and who are they usually imposed upon
discharges
usually imposed upon first-time minter offenders in the mc
what are the 2 types of discharge
conditional/absolute
what is a conditional discharge
where if the offender commits a further offence in the stated period, they can be resentenced for the original offence
what is an absolute discharge
no real penalty imposed as the offender is technically guilty but morally blameless
what 2 things will judge/magistrates look at when they have to pass sentence
range of sentences available and what they’re trying to achieve by the punishment they give
punishment/retribution
-the idea that if someone has broken the criminal law, they should be punished and get their ‘just deserts’
reduce offending
- 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
protection of the public
- offender given a sentence that makes them incapable of committing further crime
- long custodial sentence/curfew requirement usually given to achieve this aim
reform and rehabilitation
- 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
reparation
where the sentence tries to ensure that the offender makes amends, may be achieved through compensation order
what 6 things will court take into account when deciding sentence
- max sentence allowed by parliament
- man sentencing powers of court
- offenders background/aggravating/mitigating factors
- aims of sentencing
- sentencing guidelines
what is the max prison sentence for assault/battery
6 months imprisonment
what is the max sentence for s.47 or s.20 OAPA
5 years imprisonment
what is the max sentence for s.18 OAPA
life imprisonment
what is the max sentence that the mc can impose
6 months for one offence
what is the max sentence that a judge in the cc can impose
no such limit than max sentence allowed by parliament for offence
if d pleads guilty or is found guilty of s.47/s.20 (either way) in mc, what can magistrates impose
up to 6 months imprisonment
if d pleads guilty or is found guilty of s.47/s.20 (either way) in cc, what can judge impose
up to years imprisonment for offence
what may be involved in taking the offenders background and aggravating/mitigating factors into account
referring to pre sentence report drawn up by the probation service/ to medical/psychiatric report if the offender is ill
what are aggravating factors
circumstances which allow the court to impose a more severe sentence than it would have normally given
examples of aggravating factors given in criminal justice act:
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
what are mitigating factors
circumstances which allow the court to impose a lower sentence than it would have normally given
examples of mitigating factors in the criminal justice act
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
what else will be taken into account when sentencing (AOS)
aims of sentencing
