Introduction to criminal and legal principles, defences and Criminal Attempts

Question 1

What are the 2 elements to criminal liability and why are they important?

Answer 1

Mens rea = State of mind (mental element of a criminal offence)

Actus reus = Criminal conduct (physical part of a criminal offence)

These concepts are fundamental to understanding all offences and the idea of criminal liability generally.

Question 2

What is ‘specific’ intent?

Answer 2

Crimes where the offence can only be committed intentionally and to bring about a specific consequence (e.g. murder).

Question 3

What is ‘basic’ intent?

Answer 3

Basic intent refers to offences where either intention or recklessness will satisfy mens rea (e.g. grievous bodily harm).

Question 4

What is intent?

Answer 4

Intent is a subjective state of mind that must accompany the acts of certain crimes to constitute a violation.

(Criminal Justice Act 1967, s.8 )

Question 5

What is meant by ‘probability’?

Answer 5

Foresight of the probability of a consequence does not amount to an intention to bring that consequence about, but may be evidence of it.

Question 6

What is meant by ‘recklessness’?

Answer 6

The state of mind where a person deliberately and unjustifiably pursues a course of action while consciously disregarding any risks that may follow from such action.

Question 7

What is meant by ‘awareness’?

Answer 7

Knowledge or perception of a situation or fact

Must be compared to a reasonable, honest person.

if they are a younger person/child, they may not be aware of the risks/consequences of their actions

Question 8

What is meant by ‘reasonableness’?

Answer 8

The risk a defendant is aware of may be small but that does not automatically mean that it is reasonable to take that risk.

Each situation has its own risk factors, however this is to be decided by the court whether the risk was reasonable or not and not the defendant.

Different Crime = Different Risk

Question 9

What is meant by ‘malice’?

Answer 9

‘Malice’ requires either the actual intention to cause the relevant harm or at least foresight of the risk of causing some harm (though not the extent of the harm) to a person.

Question 10

What is meant by the term ‘wilfully’?

Answer 10

It is taken to mean intentionally or recklessly (subjective)

Question 11

What is ‘dishonesty’?

What is critical to identify when dealing with offences requiring proof of dishonesty?

Answer 11

Dishonesty is the fundamental component of a majority of offences relating to the acquisition, conversion and disposal of property (tangible or intangible) defined in criminal law such as fraud.

Critical to identify the nature of the state of mind required and the ways in which it can be proved/disproved.

Question 12

What is meant by the term ‘knowing’?

Answer 12

A person who feels ‘virtually certain’ about something can equally be regarded as ‘knowing’ it

Question 13

What is meant by the term ‘belief’?

Answer 13

The degree of certainty required to be experienced by an accused to create a ‘belief’ would appear to be the same for ‘knowing’—the difference is that a ‘belief’ could turn out to be mistaken.

Question 14

What is meant by ‘negligence’?

Answer 14

Any act or omission which falls short of a standard to be expected of the reasonable / ordinary person. E.g a breach of duty of care

Question 15

What is strict liability?

What may be required in relation to other elements of the offense?

Answer 15

Means there is little else to prove beyond the act itself.

Liability for which mens rea does not have to be proven in relation to one or more elements comprising the actus reus.

Intention, recklessness or knowledge may be required in relation to other elements of the offense.

Question 16

What is transferred mens rea?

Answer 16

The state of mind required for one offence can be ‘transferred’ from the original target or victim to another. This only operates if the crime remains the same.

Question 17

What must you show when proving the required actus reus?

Answer 17

That the defendant’s conduct was:
• voluntary, and
• that it occurred while the defendant still
• had the requisite mens rea.

Question 18

Explain the difference between a voluntary and involuntary act

Answer 18

A voluntary act is something done by the defendant whereas an involuntary act is something that happens to a defendant.

Reflexive actions or sudden physical impairments are generally not classed as being willed or voluntary

Question 19

What is meant by coincidence with Mens Rea?

Answer 19

It must be shown that the defendant had the requisite mens rea at the time of carrying out the actus reus.

The offence is complete at the first moment that the two elements (actus reus and mens rea) unite.

Question 20

Define omission.

What is an omission in criminal law?

Answer 20

An omission is a failure to act

In the criminal law, an omission will constitute an actus reus and give rise to liability only when the law imposes a duty to act and the defendant is in breach of that duty.

Question 21

What is a ‘causal link / chain of causation’?

Answer 21

Once the actus reus has been proved, you must then show a causal link between it and the relevant consequences. You must prove that the consequences would not have happened ‘but for’ the defendant’s act or omission.

Question 22

What is an ‘intervening act’?

Answer 22

An ‘act of God’ or other exceptional natural event may break the chain of causation leading from the defendant’s initial act, if it was the sole immediate cause of the consequences in question. Such an event must be ‘of so powerful a nature that the conduct of the defendant was not a cause at all, but was merely a part of the surrounding circumstances’

The causal link can be broken by a new intervening act provided that the ‘new’ act is ‘free, deliberate and informed’

Question 23

State and explain the two ways of attracting criminal liability for an offence

Answer 23

Principal or an accessory (or secondary party)

A principal is one who carries out the substantive offence i.e. performs or causes the actus reus of the offence with the required mens rea.

A secondary party is one who aids, abets, counsels or procures to commit the substantive offence, without being a principal offender - can be prosecuted and punished as if he were a principal offender
 aiding = giving help, support or assistance
 abetting = inciting, instigating or encouraging.

Question 24

What are general defences in criminal proceedings?

Answer 24

General defences are those which arise from specific characteristics of the defendant or the circumstances of the offence which mean that the prosecution cannot prove all the elements of the offence.

General defences are available in relation to a range of offences

Question 25

State the 8 general defences in criminal proceedings

Answer 25

Automatism
Consent
Mistake
Self-defence
Duress
Insanity
Intoxication
Infancy – age of criminal responsibility

Question 26

What is the automatism general defence?

Answer 26

An act done by the body without control by the mind (eg it is a spasm or a reflex) or if it is done by a person who is not conscious of what they are doing.

Question 27

What is the consent general defence?

Answer 27

Consent be given under no fear or misconception of facts. Available for all types of offences; however it is mainly used for non-fatal offences. Cannot be used for murder offences and euthanasia.
•	Contact sports
•	Horseplay
•	Sexual activity
•	Tattooing and branding

Question 28

What is the mistake general defence?

Answer 28

The defence of mistake requires the accused to have made a mistake about the circumstances or consequences of an act (deny the mens rea) which nullifies a suggestion of criminal intention

Question 29

What is the self-defence general defence?

Answer 29

An absolute defence which can apply to offences committed by force.

Can take the form of defence of a person or property, the prevention of crime and the lawful arrest and apprehension of offenders.
o Common law
o S3 Criminal Law Act 1967
o S76 Criminal Justice & Immigration Act 2008
o S117 Police and Criminal Evidence Act 1984

Question 30

What is the duress general defence?

Answer 30

The defendant commits the offence with the relevant intention but is induced to act by a threat made by another person, or where the defendant reasonably believes such a threat has been made, to the effect that, unless the defendant commits the offence with which they are charged, they or a third person will be harmed.

Elements of the defence of duress by threat:
• Specified crime
• Immediate threat
• Threat of death or serious injury
• Threat of violence must be to the defendant or a person for whom he has responsibility
• Threat must be so great as to overbear

Question 31

What is the insanity general defence?

Answer 31

Insanity is a complete defence even to strict liability offences.
• To establish a defence of insanity it must be clearly proved that, at the time of commission of the act in question, the accused was labouring under a such a defect of reason, from a disease of the mind as not to know the nature and the quality of the act they were doing, or, if they did know it, they did not know it was wrong.
• Available for all crimes

Question 32

What is the intoxication general defence?

What are the 2 types of intoxication?

Answer 32

Bought about by drink or drugs

Intoxication has the potential to remove the necessary mens rea required for a defendant to commit an offence.

Can be divided into two categories:
• Voluntary intoxication - the defendant got themselves intoxicated

• Involuntary intoxication - the defendant was not responsible for becoming intoxicated (e.g. spiked drink)

The distinction between the two types of intoxication is important when considering whether the offence the defendant is alleged to have committed is one of specific or basic intent.

Question 33

What is the infancy general defence?

Answer 33

Attempts to disprove liability for a crime by reason of the defendant’s very young age.

Under the assumption that minors (aged under 10) are incapable of forming criminal intention the same manner as adults.