Law Mock Flashcards
what are the 4 advantages of juries?
- random selection
- public confidence
- jury equity
- jury secrecy
advantage of random selection of juries?
equal treatment can be shown with the use of juries as they do not have any connections with the relevant cases
advantage of public confidence in juries?
ordinary members of the public judge defendants, 80% of those asked in a study trust juries more than a judge or magistrate
advantage of jury equity in juries?
jurors can decide a verdict according to what they think is right and wrong; they don’t have to follow the law if they feel it is unfair(R v Owen), as opposed to a judge who has to follow statute and precedent
advantage of secrecy in juries?
it is an offence to share reasons for decisions or discussions that take place in a jury room. if decisions were public, jurors may not be as open and honest with their thoughts
what act makes it an offence to snitch about discussions in the court room?
criminal justice and courts act 2015
what are the 4 disadvantages of juries?
- perverse decisions
- secrecy
- research
- bias
disadvantage of perverse decisions in juries?
juries can ignore law/evidence and base decisions based on conscious, which can cause unfair decisions (R v Owen)
disadvantage of secrecy in juries?
courts can’t tell if jury are using actual evidence to make decisions or just random information or prejudice
disadvantage of using research in juries?
information about cases is widely available online, which can cause prejudice. in 2010, 12% of jurors admitted to using the internet.
disadvantage of bias in juries?
all jurors have prejudice, which could affect the verdict, but due to secrecy, it is impossible to know (Sander vs UK) but research shows race doesn’t affect jurors decisions
4 advantages of using negotiation, mediation, or conciliation as a form of ADR?
- cost-effective
- faster resolution
- preserved relationship
- parties retain control over the resolution process
4 advantages of using arbitration in ADR?
- binding decision
- saves more time than court
- expert arbitrators
- confidentiality
advantage of cost-effective in ADR?
ADR methods are cheaper than court cases because there are no court costs or other costs associated with trials. this makes ADR an especially appealing option for individuals or businesses with budget constraints
advantage of reaching a faster resolution in ADR?
litigation could take months or even years to resolve in court, while ADR can be solved in a couple of weeks or even days
advantage of preserved relationships in ADR?
ADR encourages communication and cooperation instead of confrontation, which is best in disputes where the parties have ongoing interactions, such as in business partnerships, family matters, or workplace conflicts
advantage of parties retaining control over the resolution process in ADR?
the parties have more control over the process and outcome than litigation, where a judge or jury makes the final decision
advantage of having a binding decision in arbitration?
provides certainty for parties involved, as the dispute is resolved without the potential for prolonged litigation or appeals
advantage of having an expert arbitrator?
the parties can often choose an arbitrator with expertise in the subject matter of the dispute. beneficial in complex cases, such as those involving specialised areas of law where the parties want a decision-maker who understands the technical or industry-specific issues
advantage of confidentiality in ADR?
unlike court proceedings, which are typically public, ADR processes are private, privacy can be important when discussing sensitive matters, e.g personal, financial, or trade secrets
4 disadvantages of using negotiation, mediation, or conciliation as a form of ADR?
- not legally binding
- power imbalances
- dependence on cooperation
- lack of formal procedure
4 disadvantages of using arbitration in ADR?
- limited right to appeal
- expensive
- lack of precedent
- potential for bias
disadvantage of not being legally binding in ADR?
parties may be left without a legal remedy, unlike in arbitration or litigation, where the outcome is enforceable by law
disadvantage of power imbalances in ADR?
if one party has more negotiating power, better legal representation, or superior resources, the other side cannot force a fair result
disadvantage of dependence on cooperation in ADR?
might agree to unfavourable terms just to end the process, leading to dissatisfaction and a sense of injustice
disadvantage of lack of formal procedure in ADR?
ADR results in inconsistent outcomes, as decisions are often based on the subjective judgment of the mediator or the goodwill of the parties involved. unlike formal litigation, where legal principles and precedents guide outcomes
disadvantage of a limited right to appeal in arbitration?
parties may be forced to accept an unfavourable or incorrect decision, even if it involves legal or factual errors
disadvantage of the expensiveness of arbitration?
more expensive than other forms of ADR due to high arbitration fees, costs for expert witnesses, and legal representation
disadvantage of lack of precedent in arbitration?
can lead to inconsistent outcomes, resulting in a lack of predictability for future cases
disadvantage of potential for bias in arbitration?
undermines the fairness of the process and can lead to distrust in the arbitration system
what act covers sentencing?
sentencing act 2020
where are the purposes of sentencing set?
chapter 1 s.57 of the sentencing act 2020
5 aims of sentencing?
- punishment
- rehabilitation
- reparation
- deterrence
- protection of the public
is any punishment allowed in sentencing?
no, sentence must be proportionate to the offence
aim of rehabilitation?
to reform the offender into society
what is reparation?
repayment to the victim or community
aim is deterrence?
not wanting to commit the offence through fear of further punishment
how does sentencing protect the public?
the offender is made incapable of committing further crime
what is an absolute discharge?
when the offender is technically guilty but morally blameless
what are fines in sentencing?
sum of money exacted by penalty by the courts
what is a conditional discharge?
court discharges an offender on the condition that no further offence is committed
what are community orders?
community service (mix and matchable)
what is a suspended sentence?
offender has a fixed time (max 2 years) during which if no further offence is committed during this time, then the prison sentence will not be served
what is a fixed-term sentence?
imprisonment for a set number of time, automatically released after half their sentence is served
what is a discretionary life sentence?
when the maximum sentence is life imprisonment, but the judge doesn’t impose it
what is a mandatory life sentence?
the only sentence a judge can impose for murder
what is the minimum term for committing murder?
12 years
what are the 8 types of sentencing for an adult?
- absolute discharge
- conditional discharge
- fines
- community order
- suspended sentence
- fixed-term sentence
- discretionary life sentence
- mandatory life sentence
definition of aggravating factors in sentencing?
factors that increase a sentence
definition of mitigating factors in sentencing?
factors that decrease a sentence
4 aggravating factors in sentencing?
- previous convictions
- racial or religious hostility involved
- homophobic or ableist hostility
- D was on bail while committing the offence
4 mitigating factors in sentencing?
- D has a medical and/or physical illness
- no previous convictions
- showing signs of remorse
- cooperative with police
3 aggravating factors for a mandatory life sentence?
- significant degree of planning
- vulnerable victim
- tortured victim before killing em
3 mitigating factors for a mandatory life sentence?
- intention to case gbh instead of murder
- lack of planning
- offender believed it was an act. of mercy
reduction of sentence if D pleads guilty at the earliest opportunity?
1/3rd off
reduction of sentence if D pleads guilty after the trial is set?
1/4th off
reduction of sentence if D pleads guilty at the door of the court?
1/10th off
3 additional powers of the court?
- disqualifying the D from driving
- compensation order to pay the victim
- forfeiture order, taking away offender’s property
elements of negligence?
duty of care, breach, damage
what case to check duty of care?
Robinson (2018)
how to check DoC through Robinson? + case?
look to see whether there is existing precedent (Bolam)
if no existing precedent through Robinson the next step is?
try analogy
what must C prove for breach?
that the duty of care has been breached
what must D fall below in order to breach DoC? + case?
standard of the ‘reasonable person’ (Blyth)
definition of reasonable person?
someone who completes a task competently
4 characteristics of D that affect standard of care?
- professional
- learner
- children
- unskilled
who are professionals put against in SoC? + case?
other professionals (Bolam)
who are learners put against in SoC? + case?
a reasonably competent person with that skill (Nettleship)
who are children put against in SoC? + case?
ordinary young person of the same age (Mullins v Richards)
who are unskilled defendants put against in SoC? + case?
a reasonably competent amateur (Wells v Cooper)
5 factors affecting standard of care?
- special characteristics of C
- size of risk
- adequate precautions taken
- unknown risks
- social utility
what is ‘but for’ test in negligence? + case?
but for D’s acts/omissions, would the injury or loss have occurred? (Barnett)
test for damage?
factual causation -> ‘but for’ test
legal causation -> remoteness of damage
what is the test for remoteness of damage?
reasonable foreseeability, the harm or injury suffered must not be too remote, which would make it unforeseeable
case for remoteness of damage in negligence?
The Wagon Mound 1961
3 intervening acts in negligence? + case?
- act by claimant
- act of nature
- act of third party (Knightly v Jones)
is it foreseeable if the accident occurred from an unknown event? + case?
no (Doughty v Turner Ltd 1964)
does damage have to be extreme in negligence? + case?
no, only foreseeable (Bradford)
private nuisance definition?
intentional unlawful indirect interference with a person’s use or enjoyment of land coming from neighbouring land
what is the egg shell skull rule in negligence? + case?
you must take your victim as you find them (Smith v Leech Brain 1962)
meaning of intentional in private nuisance? + case?
action or danger (Sedleigh Denfield)
private nuisance elements?
- intentional
- indirect
- interference
- enjoyment/use of land
- unlawful
meaning of indirect in private nuisance? + case?
can be noise, smell, vibrations (Sturges v Bridgman)
what doesn’t count as indirect interference in private nuisance? + case?
TV signal (Hunter v Canary Wharf Ltd)
meaning of interference in private nuisance? + case?
physical damage or loss of amenity (Robinson v Kilvert)
how to define the person who enjoys/uses the land in private nuisance? + case?
someone with a proprietary interest in it (Christie v Davey)
what does unlawful mean in private nuisance?
unlawful means unreasonable, not illegal
7 factors of reasonableness in private nuisance?
locality
duration
sensitivity of C
malice
social benefit
damage
effect of C’s human rights
case for duration in private nuisance?
Crown River Cruises Ltd
case for sensitivity of C in private nuisance?
Network Rail v Morris
case for malice in private nuisance?
Hollywood Silver Fox Farm
case for social benefit in private nuisance?
Miller v Jackson
defences for private nuisance? + cases
- prescription - going on for at least 20 years without complaint (Sturges v Bridgman)
- statutory authority (Watson)
remedies for private nuisance? + case?
1.injunctions
2. compensation (Coventry v Lawrence)
3. abatement
where is attempts statued in?
s1(1) criminal attempts act 1981
actus reus of attempts?
an act which is more than merely preparatory
mens rea of attempts?
intention to commit an act, which if completed is an offence
case for more than merely preparatory?
Jones
what 2 things don’t count as more than merely preparatory?
- just equipping yourself
- just being in position
what must D do in order to count as more than merely preparatory? + case?
embark upon the actual commission of the offence (Gullefer)
case for just equipping yourself in attempts?
R v Geddes
case for just being in position in attempts?
Campbell
does conditional attempt count? + case?
yes, (Easom)
what does the case of Shivpuri in attempts state?
attempts include ‘impossible’ crimes
what does the case of Pearman in attempts state?
oblique intent will suffice
what does s3 of the Crime Act 1967 state?
person can use self defence to protect themselves and others from harm using force they believe is reasonable in the moment
what statute states that a person can use self defence to protect themselves and others from harm using force they believe is reasonable in the moment?
s3 Crime Act 1967
what does s76 of the CJIA 2008 state?
d may not be able to fully weigh up the necessary level of force but nevertheless must use what is reasonable in the circumstances they believe themselves to be in
what statute states that the d may not be able to fully weigh up the necessary level of force but nevertheless must use what is reasonable in the circumstances they believe themselves to be in
s76 CJIA 2008
what are the 2 tests for self defence?
- subjective test, was the force necessary?
- objective test, whether the amount of force justified in the situation D was in
will self defence be successful if force was too extreme or the danger had passed? + case?
no, (R v Clegg)
what case and statute made it so that self defence in a household has a wider use of force?
R v Martin, s43 Crime and Courts Act 2013
what 3 things must be sufficed so the D can use force that is not grossly disproportionate?
- D must not be a trespasser
- D is in/partly in a dwelling
- D believes V is a trespasser
how much force can be used in household cases?
as long as its not grossly disproportionate
can self defence be used for mistaken force? + case?
yes, (R v Gladstone Willis)
can you use preemptive force such as making preparations to defend yourself against crime even if it hasn’t been committed yet? + case?
yes, (A G Ref No. 2)
do you need a reluctance to use force to protect yourself? + case?
no, (R v Bird)
what 2 things to look at for consent?
- is the consent genuine?
- what can a person consent to?
4 factors that affect genuineness of consent? + cases?
- lying about your ability (Melin)
- consenting through fear
- v is unable to give consent
- non disclosure of a disease (Dica)
name a situation where there could be implied consent?
a concert
name the case for implied consent
R v Wilson and Pringle
can a person consent to murder? + case?
no, (Pretty v UK)
where are the exceptions of consenting to NFO laid out?
A G (Ref No. 2 1980)
what are the exceptions of consenting to NFO?
- dangerous exhibits
- chastisement children
- properly conducted sports games
- vital medical interference
what does R v Barnes state about consent in ball games?
reckless sport injuries and off the ball injuries aren’t covered by implied consent
what case states reckless sport injuries and off the ball injuries aren’t covered by implied consent?
R v Barnes
what statute + case states that you can consent to tattoos and piercings?
Tattooing of Minors Act 1969 and R v Wilson
what does the Tattooing of Minors Act 1969 and R v Wilson state?
you can consent to tattoos and piercings
what case states that there are body modifications you can’t consent to?
R v B M
what does R v B M state about consent?
there are body modifications you can’t consent to
who are there special considerations for consenting to life saving or improving medical procedures + case?
people under 16, (Gillik)
when will the law accept mistaken consent?
as long as its genuine (R v Jones)
what case states chastisement is legal?
A v UK
can sadomasochism be consented to? + case?
no, (Brown)
what statute sets out both assault and batter?
s.39 CJA 1988
AR and MR of assault?
a person intentionally or recklessly causes another to apprehend the use of immediate unlawful violence
case for “causing another to apprehend” in assault?
R v Logdon
case for “an act, not omission” in assault?
R v Constanza
case for “immediate” in assault?
R v Ireland
mens rea of assault?
- intention to cause the V to apprehend unlawful and immediate violence
*recklessness as to whether this apprehension would occur
AR of battery?
application of unlawful physical force to another
MR of battery?
intentionally or recklessly applied force to a person
case for “force can be indirect” in battery?
R v Haystead
case that states touching clothes counts as touching the person?
R v Thomas
do omissions count in battery? + case?
yes, DPP v Santa Bermudez
what case shows that battery can be through a continuing act?
Fagan v MPC
case for MR of battery?
R v Venna
what statute is ABH set in?
s.47 OAPA 1861
AR of ABH?
assault occasioning actual bodily harm
MR of ABH?
same as that for assault or battery
*intention or recklessness to cause V to apprehend immediate unlawful force
* intention or recklessness to apply unlawful physical force
case for MR of ABH?
R v Savage
“assault” meaning in ABH?
assault or battery
“actual bodily harm” meaning + case?
any hurt or injury that interferes with the health or comfort of the victim, (R v Miller)
what must the injury be in ABH?
more than trivial
what case includes a person’s hair in ABH?
R v Smith
AR of s.20 GBH?
unlawfully maliciously wounding to inflict any grievous bodily harm
“wound” meaning in s.20 GBH?
breaking of the continuity of the whole of the outer skin
definition of “grievous bodily harm”
really serious bodily harm
MR of s.20 GBH?
maliciously, meaning intentionally or recklessly:
*needed only to intend some harm to occur
or
*be reckless as to some harm would occur
what case sets out the MR for s.20 GBH?
R v Savage
which case state there must be breaking of the skin to have a wound?
JCC v Eissenhower
what case shows that if combined injuries are serious enough, it can count as GBH?
Brown and Stratton
difference between s.20 and s.18 GBH?
the mens rea
AR of s.18 GBH or Wounding?
exact same as s.20, unlawfully maliciously wounding to inflict any grievous bodily harm
MR of s.18 GBH or Wounding?
requires a specific intent, it must have been D’s intention to do some previous bodily harm
what case held that it was essential to prove specific intent for s.18 GBH?
R v Belfon
