Introduction to criminal and legal principles, defences and Criminal Attempts Flashcards
What are the 2 elements to criminal liability and why are they important?
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.
What is ‘specific’ intent?
Crimes where the offence can only be committed intentionally and to bring about a specific consequence (e.g. murder).
What is ‘basic’ intent?
Basic intent refers to offences where either intention or recklessness will satisfy mens rea (e.g. grievous bodily harm).
What is intent?
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 )
What is meant by ‘probability’?
Foresight of the probability of a consequence does not amount to an intention to bring that consequence about, but may be evidence of it.
What is meant by ‘recklessness’?
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.
What is meant by ‘awareness’?
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
What is meant by ‘reasonableness’?
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
What is meant by ‘malice’?
‘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.
What is meant by the term ‘wilfully’?
It is taken to mean intentionally or recklessly (subjective)
What is ‘dishonesty’?
What is critical to identify when dealing with offences requiring proof of dishonesty?
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.
What is meant by the term ‘knowing’?
A person who feels ‘virtually certain’ about something can equally be regarded as ‘knowing’ it
What is meant by the term ‘belief’?
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.
What is meant by ‘negligence’?
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
What is strict liability?
What may be required in relation to other elements of the offense?
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.
What is transferred mens rea?
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.
What must you show when proving the required actus reus?
That the defendant’s conduct was:
• voluntary, and
• that it occurred while the defendant still
• had the requisite mens rea.
Explain the difference between a voluntary and involuntary act
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
What is meant by coincidence with Mens Rea?
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.
Define omission.
What is an omission in criminal law?
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.
What is a ‘causal link / chain of causation’?
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.
What is an ‘intervening act’?
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’
State and explain the two ways of attracting criminal liability for an offence
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.
What are general defences in criminal proceedings?
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
