paper 1 essay plans Flashcards
unlawful manslaughter
diminished responsibility s.52 coroners and justice act 2009
(partial defence)
1.
state:
- s.52 the defendant has to have an abnormality of mental functioning
explain:
-BYRNE 1957- an abnormality of mental functioning is a condition that is so different from that of an ordinary man that the reasonable man will regard it as abnormal
apply:
- clearly … can be deemed normal/abnormal by the reasonable man
2.
state:
- s.52(a) arising from a recognised medical condition
explain:
- SPEAKE- mental deficiency (any mental health issue)
- GITTENS- chronic depression
- AHLUWALIA- battered womens/spouse syndrome
and
state:
-proof is needed
explain:
- CAMPBELL- medical evidence is required
apply:
- e.g. postnatal depression is a recognised medical condition medical evidence could be sought to prove that … was suffering at the time
3.
state:
-s.52(1A) which substantially impairs D’s ability to
1. understand the nature of D’s conduct
2. form a rational judgment
3. exercise self-control
explain:
-EGAN
- the CA was asked to decide the meaning of ‘substantial’ impairment
- more than trivial (no impact on D’s life) but less than total (rules every aspect of D’s life)
apply:
-e.g. it would appear that the postnatal depression may be substantially impairing…’s ability to exercise self-control and stop themselves from…
4.
state:
-s.52(1b) abnormality of mental functioning provides an explanation for D’s conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct
explain:
- this means that it is the main or one of the main causes
apply:
- e.g. without the postnatal depression, … would not have … and therefore this abnormality does provide an explanation for their behaviour
loss of control
(partial defence)
1.
state:
-coroners and justice act 2009
-s.54(1)(a): loss of self control
explain:
-JEWELL: “This was a planned execution” therefore not a loss of control
-WORKMAN: evidence is required to show that there has been a loss of control
-s.54(2) doesn’t need to be immediate or sudden
apply:
-e.g … lost control and stabbed …
2.
caused by a qualifying trigger- fear/things said or done (2 points)
state:
-s.55(3) D’s fear of serious violence from V against D or another identified person
explain:
-WARD: D feared serious violence against his brother- sufficient for loss of control
-LODGE: D also pleaded loss of control successfully on the basis that he lost his self-control and killed V after V had attacked him with a baseball bat. sufficient for loss of control
apply:
-e.g. in this case, … could be fearing serious sexual violence against her … in the future
or
state:
- s55(4): things don and/or said which not only constituted circumstances of an extremely grave character but also caused D to have justifiable sense of being seriously wronged
explain:
- CLINTON: clinton killed his wife after she revealed details of her sexual activities with other men and taunted him about his interest in suicide websites
- this case highlights that the defence has to be this serious
or
-s.55(5): a combination of s55(3) and s55(4)
apply:
-this was because what … has done was of such a sufficiently grave character that it would give anyone a justifiable sense of being seriously wronged
3.
state:
-BUT not incited or caused by sexual infidelity
explain:
(a) cant incite fear of serious violence
(b) cant incite things to be said or done
(c) cant be in relation to sexual infidelity
-CLINTON: sexual infidelity can be used to see a wider package of events in context
- state:
-s.53(3) a person with normal self-control might have reacted in a similar was in D’s situation
explain:
-circumstances: ASMELASH: intoxication is not a relevant circumstance and so should be disregarded
-bad temper is also disregarded
apply:
-anyone of any age or gender with a reasonable tolerance would have reacted in the same way
murder
(part of question not all of question)
intro:
- the classic definition of murder is that of Sir Edward Coke (insititutes of the Laws of England, 1797) can be expressed as: For the purposes of convenience, as the unlawful killing of a human being under the Queen’s peace with malice aforethought
actus reus of murder:
1.
state:
-it must be an unlawful killing
explain:
-either by act or omission- PITTWOOD (act or omission)
2.
state:
-of a reasonable creature in being
explain:
-ATTORNEY GENERALS REFERENCE: it cannot be a foetus, it must be born when it sustained the injury
-MALCHEREK: the victim must have brain function at the time of the incident
3.
state:
-under the queens peace
explain:
-meaning not an enemy at a time of war
causation: is this an issue?
- state:
-factual causation
explain:
-but for test PAGGETT
2.
state:
-legal causation
explain:
-was the defendants actions the operative and substantial cause of the harm? i.e. the main cause? SMITH
the mens rea of murder:
- state:
- malice aforethought express or implied - types of intention
direct intent (aim or purpose) MOHAN
or
oblique intent (virtually certain and D knows this) WOOLLIN - types of malice aforethought
express malice aforethought (intention to kill)
or
implied malice aforethought (intention to cause GBH)
explain:
- VICKERS: confirmed intention to inflict GBH which results in the death of V is enough for the MR of murder
apply:
-e.g. express malice aforethought and oblique intent- it was virtually certain that D would cause death to V and he knew this
conclusion:
liable for murder because:
automatism
AO1:
- to be successful in the defence, the defendant must show:
1) he suffered a total (100%) loss of voluntary control
- AG REF: if he has any control then he cant use it
2) caused by an external factor
- HILL V BAXTER- hit on the head/chased by a swarm of bees
- BRATTY “something done by the defendants’ muscles without the control of his mind”
- automatism is usually a one-off thing
- can only use self-induced automatism if he is not reckless as to getting into this state
- BAILEY: couldn’t use the defence as he was reckless.
- HARDIE: not reckless by taking the vallium so could use the defence
AO2: application
- find an external factor e.g. the lights in the supermarket
- the dividing line between insanity and automatism: this can include the difference between ‘internal’ and ‘external’ causes; support can be provided by the use of QUICK, HENNESSY/SULLIVAN, CLARKE
insanity
this is a defence so you also need to state what the offence is
AO1:
state the law of insanity and explain with cases
-insanity is defined in the M’NAGHTEN RULES
(D tried to kill PM but missed and instead killed the secretary instead)
- every person is presumed sane until the contrary is proved
-to be successful in this defence, D needs to prove on the balance of probabilities:
- state:
defect of reason
explain:
- D is unable to use his powers of reason, confusion or absent-mindedness is not enough for this defence- CLARKE
- the defect can be a permanent one or a temporary one e.g. SULLIVAN where D kicked a man during an epileptic fit
- state:
disease of the mind
explain:
-this is a legal question, not a medical one.
- it does not just include mental health problems
- any physical disease which affects the mind can be classed as a disease of the mind
- it must be an internal disorder (not like being hit on the head- this would be automatism)
- KEMP: where D had a hardening of the arteries and attacked his wife with a hammer
- HENNESSY: where D was diabetic and failed to take his insulin
- even sleepwalking is classed as insanity e.g. BURGESS: where D smashed a bottle over his girlfriend’s head whilst asleep
- confirmed by OYE
- state:
D did not know the nature and quality of his act or he did not know that what he was doing was wrong:
explain:
- this means that D does not know what he is doing, or the consequences of his actions or his circumstances.
- if D knows the nature and quality of his act he can still use the defence if he does not know he is doing wrong
- this means legally wrong, not morally wrong
- WINDLE: D showed he knew what he was doing was wrong by saying ‘i suppose they’ll hang me for this’
- so if D knows he is doing wrong then he cant use the defence, even if he has a mental illness e.g. psychopath
- state:
special verdict
explain:
- the defence is rarely used today because it has a special verdict
- D is found “not guilty by reason of insanity”
-under the Criminal Procedure (Insanity and Unfitness to Plead Act) 1991, the court can make several orders:
1) a hospital order- indefinite for murder
2) a guardianship order
3) a supervision and treatment order
4) an order for an absolute discharge
theft
statutory offence- section numbers are key
intro:
theft act 1968 s.1(1)
- a person is guilty of theft under the theft act 1968 s.1(1) if he/she dishonestly appropriates property belonging to another with the intention of permantely depriving the other of it
- theft is a triable eiher way offence with a maximum penalty in the crown court of seven years imprisonment and/or unlimited fine
- S.3 appropriation
state:
- appropriation is any assumption of rights of the owner and includes a later assumption of the rights of the owner by not returning something to its rightful owner
-includes selling, keeping, destroying
explain:
- LAWRENCE (1972): A foreign student offered a taxi driver her purse to take the taxi fare. the driver takes too much money, this is appropriation even though the student allowed him to take it
- S.4 property
state:
- includes money and all other property, real or personal things in action and other tangible property
- land cannot be stolen except by trustee or. tenant or by severing property from the land.
- wild mushrooms, fruit, flowers and foliage cannot be stolen unless done for commercial purposes.
- wild animals cannot be stolen unless tamed or in captivity
explain:
- OXFORD V MOSS (1979): info on an exam paper could not be stolen (intellectual property)
- s.5 belonging to another
state:
-property is regarded as belonging to any person having possession or control or any proprietary right.
- property belongs to the other where it is recieved under an obligation to deal with it in a certain way
-property received by mistake is where there is a legal obligation to make restoration belongs to the other
explain:
- TURNER 1971: The car owner stole his own car from the garage to avoid paying the bill, the garage had a proprietary right over the car until the bill was paid
- s.2 dishonesty
state:
- not dishonesty if he believes:
1. has right in law
2. would have the other’s consent
3. The owner cannot be discovered by taking reasonable steps
explain:
- GHOSH 1982: 2 part subjective and objective test:
- the reasonable man would think his conduct was dishonest
- D knows the reasonable man would think his conduct was dishonest
- we don’t care about how the defendant felt about his conduct’
- IVEY V GENTING 2017: removed the subjective element
- s.6 intention to permanently deprive
state:
- treat the thing as his own to dispose of regardless of the owners rights
- you only need to intend it, you dont have to be successful
explain:
- RV VELMUYL 1989: took £1000 from a safe. spent it. later returned another £1000. guilty of theft because they permanently deprived them of that money (different notes)
robbery
statutory offence
- s.8 (1) of the theft act 1968 defines robbery as follows
-“a person is guilty if he steals and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks the
1.
state: steals
- there must be a completed theft
- if any element is missing there is no theft and therefore there is no robbery
- the moment the theft is completed (with relevant force) there is robbery
explain:
- ROBINSON: D threatened V with a knife in order to get money he was owed. he believed it was his right to the money so no theft. Held: elements of theft must be present for a robbery
2.
state: force or threat of force
- the dry decide whether the acts were force using the ordinary meaning of the word. it includes wrenching a bag from the victims hand
explain:
- R V DAWSON AND JAMES: nudging the victim to cause them to lose their balance was sufficient force
- CLOUDEN: D applied force to a shopping basket which he pulled on until the victim lost grip and D ran off with it
- state: on any person
- the force can be against any person
- it does not have to be against the victim of theft
explain:
- it doesn’t need to be the owner of the property
4.
state: immediately before or at the time of the theft
- for robbery theft has been held to be a continuing act, using force to escape can still be at the time of the theft
explain:
- HALE: convicted of robbery because D’s useed force in order to make their escape
- LOCKLEY: confirmed hale
5.
state: in order to steal
explain:
the force must be used in order to steal
- force used for another purpose does not become robbery if the D later decides to steal
6.
state: mens rea
-MR for theft + an intention to use force
burglary
statutory offence
intro:
s.9(1) theft act 1968
- a person is guilty of burglary if
(a) he enters any building or part of a building as a trespasser and with intent to commit such offence as is mentioned in subsection (2) below: or
(b) having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or part of a building it inflicts or attempts to inflict on any person therein any GBH
- the maximum sentence for burglary of a dwelling is 14 years, and the maximum sentence for burglary of a non-dwelling is 10 years
- state:
-common element. firstly there must be an effective entry
explain:
- RYAN: any part of the body entering constitutes entry. entry was established, even though entry was not effective
2.
state: common element: trespasser
- a trespasser is a person who:
- does not have the owners permission to go in the building but goes in another
- has permission to go in one part but not another
- has permission to be in the building for one purpose but usues it for another purpose
explain:
- R V JONES AND SMITH: D was a trespasser when he exceeded permission given by his father as a visitor to his home by selling the TV
- Building or part of a building
- has an air of permanence and must be actively occupied
- it includes vehicles i.e caravans, houseboats or prefabricated structures
explain:
- WALKINGTON: D went into the counter area in a shop and opened a till. the counter area was not an area where customers were permitted to go. it was for the use of staff
- state: mens rea is:
s9(1)(a)
or
s9(1)(b)
state: s9(1)(a)
- enters as a trespasser with the intention to
(i) steal
(ii) inflict GBH
(iii) do unlawful damage to the building or anything therein
explain:
- AG REF- doesn’t matter if they discover on entry that there is nothing to steal
state: s9(1)(b)
- having entered as a trespasser D
(i) steals
or
(ii) attempts to steal
or
(iii) commit GBH
or
(iii) attempts to commit GBH
intoxication
general defence
incapable of forming the mens rea required for the crime
need to define the offence/s as it is a defence
1.
state:
- the court needs to know if the defendant is voluntarily or involuntarily intoxicated
explain:
- voluntarily intoxication is where the defendant has chosen to consume drugs or alcohol
- involuntary intoxication includes when D’s drink has been spiked, taken a prescription drug or taken a soporific (calming) drug which has had the opposite effect
2.
state:
- the court also needs to know if the crime the defendant is accused of a specific intent crime or a basic intent crime
explain:
- a specific intent crime is one where the mens rea consists of intention only e.g. s.18, murder, theft, robbery or burglary
- a basic intent crime is where the mens rea includes recklessness e.g. assault, batter, s.47, 2.20 manslaughter
3.
state and explain:
- if the defendant is voluntarily intoxicated this can be a defence to specific intent crimes because he cannot form the mens rea- SHEENAN AND MOORE
- if there is a lower basic intent crime available then the court will mitigate down to this offence
- if D has the mens rea then they will be guilty of the offence, as seen in GALLAGHER- which showed that drunken intent through gaining strength or confidence from drinking alcohol
- if the crime is one of basic intent, the intoxication cannot be a defence, since becoming voluntarily intoxicated is reckless- MAJEWSKI
- if the defendant is involuntarily intoxicated, the intoxication can be a defence to a specific intent crime if D lack the mens rea- HARDIE
- but will not be a defence if D has the mens rea- KINGSTON
- it can be a defence to a basic intent crime- HARDIE
self defence
this is a defence so you must state the offence
intro:
- under the common law, a person may use reasonable force either to defend himself or another from attack or to protect property
- additionally, under s.3 Criminal Law Act 1967, a person may use reasonable force to prevent crime or assist in the arrest of offenders
- state:
- to succeed, the defendant must first prove that he actually believed in the need to use force.
- this is a subjective test
- it does not matter that his belief is mistaken
explain:
- in GLADSTONE WILLIAMS, lord lane stated that the defendant must be ‘judged against the mistaken facts as he believes them to be’
- this does not apply, however, if the mistake was caused by alcohol
2.
state:
- secondly, the defendant may only use reasonable force
explain:
- the court of appeal confirmed in OWINO that this is an objective test
- this is not necessarily minimal force
- in MARTIN, killing an escaping intruder with a shotgun was considered an unreasonable force
- the CP guidelines state that reasonable force is less then grossly disproportionate force
3.
state and explain:
- it is possible for the defendant to make a pre-emptive strike to defend himself as in BECKFORD when he feared for his life and shot the victim dead
- state and explain:
- there is also no need to retreat prior to the use of force- BIRD - and self defence can also be used even if the defendant was the initial aggressor - state and explain:
- in RASHFORD, his victims and friends responded out of proportion to the defendants initial aggression
mistake
defence so need to state the offence
intro:
- R V REID: to use mistake as a defence, the defendant must have made a mistake in the facts and not a mistake in the law- ‘ignorance of the law is no excuse’
1.
state:
- mistake of fact
explain:
- the mens rea of the offence must be made negative by the mistake
- the defence can be used where the defendant’s actions can be excused or justified in some way
- a statute may also specifically provide for instances where the defendant has a ‘lawful excuse’
2.
state:
- mistake must be reasonable
explain:
- TOLSON: D married someone else thinking her first husband was lost at sea.
- the mistake was a reasonable and honest one
- DPP V MORGAN: belief only had to be genuine and not necessarily reasonable
-WILLIAMS (GLADSTONE): confirmed removal of reasonable belief in MORGAN.
- D had to have a ‘genuine’ mistaken belief which may or may not be reasonable
state:
- the mistake cannot be used as a defence where the defendant is voluntarily intoxicated
explain:
- O’GRADY: the court held that intoxicated mistake as to how much forcee could be used in self-defence did not provide a defence.
- confirmed in FOTHERINGHAM
duress and threats
intro:
- when a person is put under considerable pressure to commit a crime or face death or serious injury to them or another, for whom they feel responsible, and the defendant is faced with a terrible dilemma.
- the problem is that the defendant commits the actus reus with the mens rea, so this defence takes the circumstances into account
- duress can come in the form of a threat or from the circumstances themselves
1.
state:
- duress can be used for all crimes expect murder and manslaughter and possibly treason but this has not be confirmed yet in court
explain:
- HOWE, overruled in DPP v LYNCH: duress is not a defence to murder
- GOTTS: duress also not available for attempted murder
duress by threats:
- state:
- the courts have to consider the seriousness of the harm that the accused has been threatened with and the criminal behaviour that they commit (broadly in proportion)
explain:
- in deciding if a defence should succeed, the jury must consider a two-stage test laid down in R V GRAHAM and approved off in R V HOWE
subjective test:
- did the defendant feel they had to act in the way that they did because they reasonably believed that they would face death or serious personal injury?
objective test:
- would a sober person of reasonable firmness with the same characteristics as the defendant respond in the same way as the defendant?
- state:
- the threat must be unavoidable
explain:
- GILL: D had the opportunity to inform the police so couldn’t use the defence
- R V HUDSON AND TAYLOR: the threat was considered to be imminent as defendants were witnesses in the trial where those threatening them were in the gallery even though several police were in the court building
- R V HASAN: here the defendant knew he was involved with a criminal gang so he put himself in the way of possible threats
3.
state:
- self-induced duress
explain:
- The defendant’s own actions have led him to be placed under threat so cannot use the defence
- HASAN: The defendant joined a criminal gang so he was unable to use the defence when he was put under threat because he should have realised that could happen
duress by circumstances:
- WILLER: says that the duress can come from the circumstance, as confirmed by CONWAY- martin states that we have to apply the Graham test
subjective test:
- did the defendant feel they had to act in the way they did because they reasonably believe that they would face death or serious personal injury
objective test:
-would a sober person of reasonable firmness in with the same characteristics respond in the same was as the defendant
- CAIRNS: have to hold reasonable and genuine perception of the threat
assault
intro:
- common law offence
- s.39 Criminal Justice Act
- max sentence is 6 months
- identify this through fear
- state:
- actus reus: causing V to fear immediate unlawful force
explain:
- explain actus reus with the case R V IRELAND- silent phone calls
2.
state:
- mens rea: intention or recklessness to cause V to fear immediate unlawful force
explain:
- explain mens rea with a case: VENNA- confirms recklessness is sufficient for assault or battery
apply:
apply the mes rea to the scenario- direct intent/oblique intent/recklessness
s47 ABH
1.
identify the offence:
- s.47 assault occasioning actual bodily harm contrary to the Offences against the Person Act 1861
- the max sentence is 5 years
identify the offence:
-battery
state the actus reus:
- application of unlawful force
explain:
- explain the actus reus with a case
- FAGAN: where the battery was carried out with a weapon (car)
- THOMAS: touching of clothing is sufficient
- COLE V TURNER: unwanted touching
apply:
e.g. …. ran into …., applying unlawful force
state the mens rea:
- intention or recklessness to apply unlawful force
explain:
- explain the mens rea with a case
- VENNA: confirms recklessness is sufficient for assault or battery
apply:
-apply the mens rea to the scenario- direct intent/oblique intent/recklessness
-battery with no injury: max sentence of 6 months
- with injury:
state the actus reus:
1. assault and or battery occasioning
2. actual bodily harm
explain:
- explain the actus reus with a case
-MILLER: hurt or injury calculated to interfere with the health or comfort of the victim
apply:
- e.g. in this case sprained wrist would cause interference to …’s comfort
state the mens rea:
- intention or recklessness to cause assault or battery
explain:
- explain the mens rea with a case
- SAVAGE: no foresight of injury is required.
- NO MENS REA NEEDED FOR THE INJURY. JUST assault or battery
