law 2 Flashcards
What is the Latin term for stand by what has been decided?
Stare Decisis
What are the main ways of avoiding precedent
Distinguishing;
Practice Statement 1966
Exceptions in Bristol Aeroplane;
Over-ruling
What is the difference between Over-ruling and reversing?
Overruling is when a higher court replaces a judgement in a previous case. Reversing is in the same case.
factual cause
but for test
pagett
Cato
multiple causes don’t break the chain
doesn’t affect liability
Novus actus interveniens
3rd party
often medical treatment
funding criminal defense cases
private funds
legal aid
role of judges
including plea+ management hearings
rules in point of law, procedure and evidence
sentence
directing jury
appeals from magistrates
creates precedent
types of judges
superior judges- sit in high or appeal courts
inferior judges are the rest
fair labelling
the label given to an offence should attach itself to a category or level of crime.
punishment should be proportionate to the offence committed
correspondence principle
its to prevent the unfair labelling of a defendant who does not intend or foresee the elements of the actus reus
The Correspondence rule states that the actus reus and the mens rea should be of the same level. The reason for this is that if the offence is one of constructive liability (i.e. correspondence doesn’t apply) the defendant is held liable for harm they may not have foreseen and this means they lack fault and so it is unjust.
in relation to loss of control s54(1)
S.54 Coroners and justice act 2009
says the defendant must lose their self control but it doesn’t need to be sudden under s54(2)
Murder AR
The unlawful killing of a reasonable person in being and under the kings or queens peace
Men’s rea for murder
Intention to kill or cause grievous bodily harm or with malice afore thought express or implied
The rule of law means…
Law is in charge
Voluntary manslaughter
It comes about when you can successfully argue the two defences:loss of control and diminished responsibility
Loss of control s54(1)a
Where a person kills or is a party to the killing of another D is not to be convicted of murder if:
Loss of control 1
Ds acts or omissions in doing or being a party to the killing resulted from Ds loss of control
Loss of control 2
It does not matter if the loss of control was not sudden
(Ibrams an Gregory 1981 CA)
Loss of control 3
Does not apply if in doing or being a party to the killing D acted in a considered desire for revenge
Qualifying trigger s55(3)
Ds fear of serious violence from V against D or another identified person
s54(1)(c)
Camplin
A person of Ds sex and age with a normal degree of tolerance and self restraint and in the circumstances of D might have reacted in the same or similar way
Issues with loss of control
No need to be sudden
Compatible with considered desire for revenge
Scope of the excuse for violence exception
Diminished responsibility s2(1) homocide act 1957
Not to be convicted of murder if D was suffering from an abnormality of mental functioning which: arose from recognised medical condition
substationally impaired Ds ability to do one or more things mentioned in ss1(a)
Provides explanation for Ds acts and omissions in doing or being party to the killing
Involuntary manslaughter
D does not intend to kill or cause serious harm
Dangerous situation: involuntary manslaughter
It is necessary to show that where D creates the dangerous situation they intended to do so. This intention will take form of recklessness
Test for involuntary manslaughter- gross negligence
Duty of care must exist between D and victim
Must be a breach of duty which causes death
Gross negligence is such to be considered criminal by the dury
s.55(4)
Qualifying trigger (Clinton 2012)
Things done or said that constituted circumstances of an extremely grave character and caused D to have a justifiable sense of being wrong
Gross negligence manslaughter (Adomako)
Duty of care
Breach of duty of care owed by D to the V causing death (Edwards)
The breach was a cause of the victim’s death
The breach was reasonably foreseeable to give rise to an obvious risk of death
The circumstances of the breach were exceptionally bad
Unlawful act manslaughter
D commits unlawful act
Act must be criminal
Act must be dangerous
Act must cause death
D must have men’s rea for unlawful act
DANGEROUS This is established by the case of Church
We ask whether the sober reasonable person would foresee the risk of at least some harm all be it not serious.
legal causation
if the defendant’s actions were the operating and substantial cause (benge), which means more than minimal but need not be the only cause (Cato).
fault
the level of moral blameworthiness of the defendant
the more at fault u are the more serious ur crime is
MR and strict liability
justice
described as fairness or equality as pointed out in ‘de la justice’
definition is illusive due to subjective nature
natural justice
substantive justice
utilitarianism
harm
the physical or mental damage caused by a D to a v. It can be considered as the basis criminal liability since the more serious the harm you cause, the more serious the offence you are likely to be charged with and the more serious the sentence is likely to be.
Retrospective Liability (R V R)
Retrospective law means that when a law passes it applies to some time in the past. The issue with this is that changing the law in this way can change the nature of a person’s actions from being lawful at the time they were acting to unlawful at some future point.
Maximum certainty
The principle of maximum certainty means that the law needs to be as precise and clear as possible. This means that people understand what the law is which enables them to modify their behaviour to ensure it complies, making society safer.
principle of coincidence (contemporary rule)
Coincidence of actus reus and mens rea is the principle that both the mental and physical element of the crime must be present. This is often called the contemporaneity rule
Voluntary assumption of duty
stone and Dobinson
Reasonable creature in being
A child must be independent of mother to be considered a reasonable creature in being
Gross
Bateman
Disregard life and safety of others to be deemed criminal
