Paper 1 - The Legal System & Criminal Law: Section B - The Criminal System Flashcards
(123 cards)
1
Q
What is ‘actus reus’?
A
It’s a ‘constituent element of crime’ - ‘guilty act’
2
Q
What is ‘mens rea’?
A
It’s the ‘intention or knowledge of wrong doing that constitutes crime’ - guilty mind
3
Q
What is the ‘Burden of Proof’
A
The basis for imposing liability in criminal law is that the defendant must be proved to have committed the guilty act whilst having had the guilty state of mind for the crime that they have been charged with. The prosecution must prove that the defendant is guilty.
4
Q
What is the ‘Standard of Proof’
A
The prosecution must prove that the crime has been committed ‘beyond reasonable doubt’.
If this cannot be proved then the defendant will be acquitted.
5
Q
What two elements mean that a person is guilty of a crime?
A
In order for a person to be found guilty of a criminal offence the prosecution have to prove two elements.
ACTUS REUS + MENS REA = CRIMINAL OFFENCE
6
Q
What are three forms of actus reus?
A
- An act
- An omission (failure to act)
- A state of affairs
7
Q
Voluntary Act: Hill v Baxter (1958)
A
The defendant ignored road sign that said ‘halt’, he carried on causing his van to crash. He claimed it was automation.
Held: an involuntary action does not form the actus reus of a crime.
The court stated examples of situations of where the driver would not be acting voluntarily, e.g. being stung by a swarm of bees, sneezing or being hit on the head by a stone.
8
Q
Omission: R v Pittwood (1902)
A
The defendant (D) was a gatekeeper at a railway station. He forgot to shut the gate when he went for his lunch. Due to this someone crossed the railway line & was hit & killed by a train.
Held: D was convicted - his omission had caused the death of the victim.
Duty through a contract to close the gate.
9
Q
Omission: R v Gibbens and Proctor (1918)
A
A father and his new wife omitted to feed his child, who then died.
Held: Guilty
Duty through a relationship to feed the child.
10
Q
What are examples of Parliament imposing a duty to act?
A
Parliament imposes a duty to act:
Seatbelt – Road Traffic Act
Neglect – Children and Young Persons Act 1933
11
Q
Voluntarily Act/ Omission: Stone and Dobinson (1977)
A
D’s (of low intelligence) omitted to care for Stone’s elderly sister who then died
Held: Guilty of manslaughter
D’s were convicted because they took on the duty voluntarily
12
Q
Omission: R v Dytham (1979)
A
Police Officer failed to intervene as he saw a man being kicked to death
Held: Guilty
Duty through an official position
13
Q
Omission: R v Miller (1983)
A
Squatter accidentally started fire, omitted to put it out or summon help and moved to another room
Held: Guilty of criminal damage through setting in a motion chain of events
Duty to minimise the harmful effects of the fire
14
Q
What is State of Affairs?
A
- Very rare situations where the defendant is convicted even though they didn’t act voluntarily
- e.g. Road Traffic Act 1988 ‘in charge of motor vehicle whilst unfit to drive”
- Phrases like ‘being found’, ‘being in possession’ & ‘being in charge’ are all states of affairs
15
Q
State of Affairs: R v Larsonneur (1933)
A
When she landed in the UK she was immediately arrested and charged with ‘being an alien’ of the state.
She was convicted because she was an alien who had been refused leave to land and was found in the UK.
16
Q
What is ‘Causation’?
A
Causation is the the coincidence of Actus reus and Mens rea
17
Q
What is ‘factual causation’?
A
The ‘but for ‘ test is used – but for the defendant’s act, would the
consequence have occurred?
The defendant can only be guilty if the consequence would not have happened ‘but for’ his act.
18
Q
What is ‘legal causation’?
A
D’s act must be the ‘operating and substantial cause’ of the injury death…or at least there must be a more than ‘slight and trifling link’.
This is a test to find the link between the defendant’s act and the consequence.
19
Q
What is ‘novus actus interveniens’?
A
This means ‘new act intervening’ – this breaks the chain of causation.
20
Q
Factual causation: R v Pagett (1983)
A
D was guilty as his actions had ‘caused’ her death. But for him using her a human shield, she would not have died.
21
Q
Factual causation: R v White (1910)
A
D not guilty of murder as he had not caused her death. ‘But for’ his actions, his mother would have died anyway
22
Q
Factual causation: R v Hughes (2013)
A
The Supreme Court quashed the conviction as D’s driving did not ‘cause’ the death because his driving was faultless.
23
Q
Legal causation: R v Kimsey (1996)
A
D did not have to be the substantial cause of death, as long as there was something more than a ‘slight or trifling link’ – here there was and D was guilty.
24
Q
When should no intervening acts occur?
A
No intervening acts must occur which breaks the chain of causation.
25
What are the three intervening acts?
1. Acts by a 3rd party
2. Victim’s own acts
3. Natural but unpredictable events
26
Acts by a 3rd party: Medical treatment R v Jordan (1956)
Intervening act was 'palpably wrong’ therefore no legal causation, the intervening act broke the chain of causation
27
Acts by a 3rd party: Medical treatment R v Chesire (1991)
D still guilty for the death. The tracheotomy was not seen as being ‘sufficiently independent’ from the gunshot wounds
28
Acts by a 3rd party: Medical treatment R v Smith (1959)
Despite the received treatment which made him worse, D was guilty of murder as the stabbing was the ‘operating & substantial cause’ which was ‘more than minimal’
29
Victim’s own acts: R v Roberts (1971)
D guilty of causing the injuries (the result).
V’s actions of jumping were ‘reasonably foreseeable’
30
Victim’s own acts: R v Williams (1992)
V’s actions were unreasonable and the chain of causation was broken by the V himself.
31
What happens in relation to a Life Support Machine and Causations?
Switching off a life support machine doesn't break the chain of causation
32
Life Support Machine: R v Malcherek and Steel
Two separate appeals were heard together. In Malcherek the defendant had stabbed his wife. In Steel the defendant was accused of sexually assaulting and beating a woman over the head with a stone. In both cases the victims had been taken to hospital and placed on life support machines. The doctors in the respective cases later switched off the life support machines as both victims were not showing any activity in their brain stem. The defendants sought to argue that the doctors' actions constituted a novus actus interveniens which broke the chain of causation.
Held: Convictions upheld
The test of death is where the brain stem has died. Thus at the time of switching off the machine, the victims were already dead. The doctors could not therefore be the cause of death.
33
What is the thin skull rule?
The general principle is that a person must take their victim as they find them. AKA law doesn't take into account any particular characteristics of the victim.
34
Thin Skull Rule: R v Blaue (1975)
D stabbed V, a Jehova's Witness who refused a blood transfusion and died, D guilty of murder. Held: applying the thin skull rule, D had to take his victim as he found her, meaning not just her physical condition, but also her religious beliefs.
35
What are three types of mens rea?
1. Direct Intention
2. Indirect Intention or Oblique Intention
3. (Subjective) Recklessness
36
Direct intention: R v Mohan (1976)
Intention is defined as a decision to bring about the accused’s desired consequence. It can be said it was the defendant’s ‘main aim, purpose or desire’.
37
Indirect intention: R v Woollin (1998)
He clearly did not have the intention to kill his son so was found not guilty of murder.
If the consequence is virtually certain and D knew this, then there was evidence on which the jury could find an intention.
38
Indirect intention: R v Matthews and Alleyne (2003)
The CA did not like the word ‘find’ from Woollin as this suggested that the jury must find an intention rather than this just being evidence of an intention (jury having the freedom of choice).
The defendant’s foresight of consequence is no more than evidence from which the jury may find an intention
39
A summary of Indirect (oblique) intention
There has to be a prohibited act
Harm has to be a virtual certainty
Defendant must foresee this (harm/death as a
virtual certainty)
40
Subjective Recklessness: Cunningham (1957)
He was not guilty of harming her because he did not realise that there was a risk of gas escaping and hurting somebody.
To establish recklessness you must show that D took an unjustifiable risk, and the defendant knew this risk but took it anyway
41
Subjective Recklessness: R v R and G (2003)
On the basis of the Cunningham test, as the defendants were unaware of the risk, therefore were not recklessness and were not guilty of causing criminal damage.
Lord Bingham justified the approach with a ‘moral blameworthiness’ principle, whereby ‘stupidity’ was not enough for a conviction.
42
What is the Contemporaneity Rule?
Actus reus and Mens rea must coincide. They must happen at the same time.
43
Contemporaneity Rule: Fagan v Met Police Commissioner (1969)
Fagan was found guilty of causing injury to the policeman as leaving the car on his foot was seen as a continuing act.
Even though Fagan did not have the MR of the crime when he stopped the car accidently on the policeman’s foot, he did form the mens rea when he refused to move it and the act of placing the car on the foot remained.
44
Contemporaneity Rule: R v Thabo Meli (1954)
D attacked the victim intending to kill him -> D then threw him off a cliff -> Victim died of exposure.
The AR and MR were present
throughout; there was no need to separate them as there was a causal link.
The AR consisted of a series of linked acts, it was enough that the MR existed at some time during that series, even if not necessarily at the time of the particular act which
caused the death.
45
Contemporaneity Rule: R v Church (1966)
D's conduct amounted to a series of acts, which culminated in her death and thus constituted manslaughter.
46
What is Transferred Malice?
Transferred malice is a legal doctrine that holds that, when the intention to harm one individual inadvertently causes a second person to be hurt instead, the perpetrator is still held responsible
47
Transferred Malice: R v Latimer (1886)
The intention/MR to strike the man was transferred to V under the doctrine of transferred malice and the D was guilty.
48
Transferred Malice: R v Mitchell (1983)
The intention/MR to strike the man was transferred to V, the old lady under the doctrine of transferred malice and the D was guilty of manslaughter.
49
Transferred Malice: R v Pembliton (1884)
His ‘malice’ in intending to strike another person could not be transferred to an intention to break the window.
He was therefore not guilty of the criminal damage.
50
What is 'Strict liability'?
Crimes of strict liability are offences which do not require the mens rea with respect to some or all of the actus reus.
Merely performing the act is sufficient to make them guilty.
51
Strict liability: Gammon v AG for Hong Kong (1985)
The presumption can be removed only if the statute clearly excludes mens rea. Strict Liability is used for public safety or social concern type cases. Therefore, Strict Liability is used for encouraging greater vigilance.
52
Strict liability: Sweet v Parsley (1970)
HL held that this offence was not of Strict Liability. The Lords felt that for such an offence, Sweet needed the MR to be guilty. Since she didn’t have this, her conviction was quashed.
53
Strict Liability: Harrow LBC v Shah (2000)
It was held that this offence was one of Strict Liability. The offence was not truly criminal but dealt with a matter of social control (gambling by young people).
54
Strict Liability: Alphacell v Woodward (1972)
It was held that this offence was one of Strict Liability. They were found guilty and fined £20.
55
Strict Liability: Semdleys v Breed (1974)
It was held that this offence was one of Strict Liability. The D’s were convicted under the Food and Drugs Act 1955 despite taking reasonable care.
56
Strict Liability: B v DPP (2000)
The HL quashed his conviction as the mens rea was required for this offence – it was not one of strict liability.
57
What are the five non fatal offences form least serious (harm) to most serious (harm)?
1. Assault
2. Battery
3. ABH (actual bodily harm)
4. GBH s.20 (without intent) s.20 OAPA
5. GBH s.18 (with intent) s.18 OAPA
58
What offences are assault and battery and what does it mean?
Assault and battery are common law offences which means that each offences is defined through decided cases only and has no statutory definition.
59
What are ABH and GBH?
ABH, GBH without intent and GBH with intent are statutory and set out in the Offences against the Persons Act 1861.
60
What is assault?
Assault is about the fear of suffering harm.
61
What is battery?
There is contact between the parties (slightest touch)
62
What act doesn't define these offences and what does it say instead?
s.39 of the Criminal Justice Act 1988 does not define these offences; it merely states the maximum sentence which is six months and establishes that the offences are summary offences.
63
What court deals with assault and battery?
The Magistrates’ Court
64
What is the actus reus of assault?
The actus reus of assault is causing the victim to apprehend (fear) immediate and unlawful violence.
65
What can the actus reus of assault be broken down into?
1. causing the victim to apprehend (fear) violence
2. immediate violence
3. unlawful violence
66
Actus Reus of Assault: R v Constanza (1997)
D sent over 800 letters to V, two of which contained clear threats.
Held: The amount to an assault
as there was a fear of violence at some point, not excluding the immediate future. Words can therefore amount to an assault
67
Actus Reus of Assault: Tuberville v Savage (1669)
D, arguing with another man, put his hand on his sword & said 'were it not assize time, I would not take such language from you'
68
Actus Reus of Assault: Smith v Chief Superintendent of Woking (1983)
D entered a private garden at night and looked through the bedroom window of the victim. She was terrified and thought he was about to enter her room.
Held: The V's fear was enough for an assault even though he couldn't physically attack her immediately as she was locked in.
69
Actus Reus of Assault: R v Ireland (1997)
D made several silent telephone calls to his victims (3 women) frightening them.
Held: even silent telephone calls can be an assault.
70
Actus Reus of Assault: R v Lamb (1967)
D was fooling around with revolver believing it was unloaded; he pointed it at friend and shot him dead.
Held: the victim (his friend) didn't fear any violence from Lamb so there was no assault.
71
What is the Mens Rea of Assault and were was it established?
It was established in the case of R v Savage and it is 'intentionally or recklessly causing the victim to apprehend immediate and unlawful violence
72
Mens Rea of Assault: R v Savage (1991)
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Mens Rea of Assault: R v Mohan - direct intention
74
Mens Rea of Assault: R v Nedrick - oblique intention
75
Mens Rea of Assault: R v Cunningham - subjective recklessness
76
What is the actus reus of battery?
The actus reus of battery is the application of unlawful force to the victim.
The force involved can be very slight; indeed, it is suggested that touching someone’s clothes may be sufficient.
77
What can the unlawful application for the actus reus of battery be in?
1. Direct act
2. Indirect act
3. Continuing act
4. Committed by omission
78
Actus reus of battery: direct act - Collins v Wilcock (1984)
A police officer (defendant) saw two woman apparently soliciting and held on to V’s arm with no intention of making an arrest.
Held: ‘Any touching of another person, however slight, may amount to a battery’.
Touching a person to get attention is ok but not more than that
79
Actus reus of battery: indirect act - R v Thomas (1985)
D, a caretaker of a school was charged with indecent assault of taking hold of the hem of a 12-year old girl's skirt.
The act wasn't indecent (no evidence of circumstances) - it was held that touching a person's clothes is equivalent to touching them
80
Actus reus of battery: indirect act - R v Haystead (2000)
D, punched his girlfriend, causing her to drop her baby onto the floor.
Convicted of battery on the baby as unlawful force had been applied to the baby
81
Actus reus of battery: continuing act - Fagan v MPC (contemporaneity rule)
The D accidentally stopped the car on a policeman foot but then refused to move it.
He was found guilty of causing injury as initially he didn't have the mens rea to harm the officer but when he refused to move it that's when the mens rea was formed.
82
Actus reus of battery: omission - DPP v Santana-Bermudez (2003)
A policewoman, before searching D's pockets, asked him if he had any needles or sharp objects on him. D replied 'no', but when the police officer put her hand in his pocket she was injured by a needle which caused bleeding.
The D's failure to tell her of the needle could amount to the actus reus for the purposes of a battery.
83
What is the mens rea of battery and what case of R v Venna (1976)?
Intentionally or recklessly as to the application of unlawful force to another person.
84
Mens rea of battery: subjective recklessness - R v Cunningham 2003)
85
Actual Bodily Harm(s.47) facts:
ABH is the least serious of the non fatal offences found in the Offences Against the Person Act 1861
However, section 47 states the penalty only
The actus reus and mens rea of ABH are found in the common law
It is a triable either way offence therefore dealt with by the Magistrates’ or Crown Court
The maximum sentence is five years
86
What does the s.47 of the Offences Against the Person
1861 Act state that ABH is?
Whosoever shall be convicted on indictment of any assault occasioning actual bodily harm shall be liable to imprisonment for any term not exceeding five years
87
What is actual bodily harm?
Actual bodily harm includes contact between the two parties but it is the severity of 'harm' which distinguishes it from other battery
88
What is the actus reus of Actual Bodily Harm?
Any assault or battery occasionally ABH. The result has to be the factual and legal if the D's conduct
89
What are the 3 elements of the actus reus of ABH?
1. assault or battery
2. occasions (caused)
3. actual bodily harm
90
R v Miller (1954): what was defined as harm and what the held?
Defined 'harm' as: ‘any hurt or injury that interferes with the health and comfort of the victim’.
Furthermore, it was stated that: ‘Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling’.
91
R v Chan-Fook (1994): what was defined as harm and what the held?
'Harm' means that injury: 'should not be so trivial as to be wholly insignificant’
Furthermore, it was stated that: ‘Bodily harm’ is not limited to harm to the skin, flesh and bones; it includes physical and psychiatric injury.
92
What are examples of ABH injuries that could include any assault or battery?
A broken tooth, loss of consciousness, minor fractures (only toes, fingers and noses) and extensive bruising could all be ABH.
93
DPP v Smith (2006): what the facts and what was held?
D cut off his ex-partner's ponytail with a pair of scissors.
As long as it is not trivial, ABH isn't limited to injury but applies to all body parts including hair.
94
T v DPP
D caused the V to become unconscious.
Loss of conciseness amounts of ABH.
95
What is the mens rea of Actual Bodily Harm?
intentionally or recklessly as to cause an assault or battery.
This means that the D only has to intend or be reckless as to the
assault or battery; D does not have to foresee that he will cause ABH
96
Means rea of ABH s.47: R v Roberts (1971)
Held: The events led to injury amounting to actual bodily harm.
D had the MR of a battery but the subsequent injuries were merely a consequence of his unlawful actions
97
Means rea of ABH s.47: R v Savage (1991)
D attempted to throw beer over the victim. The glass slipped out of D's hand and broke, a piece if it struck the V.
Throwing the beer was sufficient for the mens rea of battery and the result (injury) was the factual and legal cause; this was sufficient for the mens rea of ABH.
98
What is GBH?
wounding or inflicting grievous bodily harm
99
What does the s.20 of the Offences Against the Person Act 1861 state that GBH is?
Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any person, either with or without a weapon or instrument shall be guilty of an offence
100
What is GBH s.20?
This is the second most serious offence of non fatal offences.
It is an either-way offence
Can be heard either in the Magistrates’ Court or the Crown Court
Maximum imprisonment is five years (just like ABH)
101
What is the actus reus of GBH s.20?
unlawfully and maliciously wound or inflict any grievous bodily harm upon any person
102
What are the 3 key elements for the AR of GBH s.20?
1. unlawful and maliciously
2. wound
3. grievous bodily harm
103
What is a wound?
Wound is defined as a break in
both layers of the skin; this is an open wound, usually with a loss of blood.
104
Wound: JCC v Eisenhower (1961)
V was hit in the eye with an airgun pellet. He suffered bruising and internal bleeding in the eye.
There was no wounding, since there was no wound breaking the skin.
Once the V had bled, it
would be a wound.
105
What is GBH defined as?
'really serious harm' which was defined in the case of DPP v Smith (1961)
This means that it is a phrase which should be given its ordinary and natural meaning in the circumstances of the case.
106
GBH: R v Bollom (2004)
D caused several severe bruises to a 17- month-old child.
Injuries caused to a child or elderly person will be more serious than the same injuries to a strong healthy adult
107
GBH: R v Dica (2004)
D knew he was HIV positive. He then had sexual intercourse with two women who contracted HIV. Biological harm can amount to GBH.
108
GBH: R v Burstow (1997)
D harassed his ex-girlfriend for eight months with both silent and abusive phone calls, hate mail and stalking. V suffered severe depression.
House of Lords held that serious psychiatric harm can amount to GBH.
109
What is the mens rea of GBH s.20?
The word used for the MR of s.20 is ‘maliciously’
The prosecution does not have to prove that D intended or was reckless as to wound or commit GBH
All that must be proven is that D intended or was reckless as to cause ‘some harm’
Therefore the mens rea for s.20 GBH is intention or recklessness as to cause some harm. D does not need to foresee GBH.
110
Mens rea of GBH: R v Parmenter (1991)
D caused injury to his young baby by tossing him about which would be acceptable for an older child. He did not realise that he might cause harm by this action.
HL held that he had not foreseen the risk of some harm occurring.
Again, they stated that he didn’t have to foresee GBH, just ‘some harm’.
111
What does the s.18 of the Offences Against the Person Act 1861 state that GBH is?
Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any person, with intent to do some grievous bodily harm to any person...or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty...’
112
What is GBH s.18?
- It is an indictable offence
- Will be dealt with in the Crown
Court
- Maximum imprisonment is life
113
What is the actus reus of GBH s.18?
unlawfully and maliciously wound or inflict any grievous bodily harm upon any person
114
Wound: JCC v Eisenhower (1961)
V was hit in the eye with an airgun pellet. He suffered bruising and internal bleeding in the eye.
There was no wounding, since there was no wound breaking the skin.
Once the V had bled, it
would be a wound.
115
GBH: R v Bollom (2004)
D caused several severe bruises to a 17- month-old child.
Injuries caused to a child or elderly person will be more serious than the same injuries to a strong healthy adult
116
GBH: R v Dica (2004)
D knew he was HIV positive. He then had sexual intercourse with two women who contracted HIV. Biological harm can amount to GBH.
117
GBH: R v Burstow (1997)
D harassed his ex-girlfriend for eight months with both silent and abusive phone calls, hate mail and stalking. V suffered severe depression.
House of Lords held that serious psychiatric harm can amount to GBH.
118
GBH: DPP v Smith (2006)
D cut off his ex-partner's ponytail with a pair of scissors.
As long as it is not trivial, ABH isn't limited to injury but applies to all body parts including hair.
119
What is the mens rea of GBH S.18?
1. The D must have a specific intention to cause grievous bodily harm (really serious harm).
2. D intends to resist or prevent an arrest or the detaining of any person (and has caused really serious harm in the process).
120
1. The D must have a specific intention to cause grievous bodily harm (really serious harm): R v Taylor (2009)
D had caused scratches across the face of V as well as a stab wound to the back. Evidence showed that these were only surface scratches.
D was found guilty of s.18 after the trial judge directed the jury by stating that if they were satisfied that the prosecution had proven that D had intended to cause GBH or to wound, he would be guilty of s.18.
On appeal, the CA quashed the conviction and substituted this with a s.20 conviction.
The original trial judge had misdirected the jury; an intention to wound wasn't sufficient for the MR of s.18
121
What is the MR of s.18?
A specific intention to cause really serious harm.
This can be satisfied through a direct intention (Mohan) or an indirect intention (Nedrick, Woollin, Matthews& Alleyene).
Recklessness is NOT sufficient for s.18
122
2. D intends to resist or prevent an arrest or the detaining of any person (and has caused really serious harm in the process): R v Morrison (1989)
A police officer seized hold of D and told him that she was arresting him. He dived through a window, dragging her with him causing severe cuts to her face.
CA held that the word ‘maliciously’ is used for this part of s.18.
D only needs the MR of s.20 as to intend or be reckless that some harm may occur.
123
