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Law Paper 1 > Section B - Criminal Law > Flashcards

Section B - Criminal Law Flashcards

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1
Q

What is the definition of Crime?

A

Conducts which is prohibited by the state and will be punished

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2
Q

What are the classifications of Crime?

A

Summary - Assault and Battery, etc
TEW -Theft, Burglary, ABH, s20 Reckless GBH
Indictable - Murder, Manslaughter, S18 GBH, Robbery

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3
Q

What are some sources of criminal law?

A

Statute
Common Law
Draft Criminal Code 1989 (Not an act)

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4
Q

What is the distinction between crime and tort?

A

Crimes against society, Civil is against person

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5
Q

Where is the burden of proof on:
Civil cases
Criminal cases

What standard must be proved in
Civil Cases
Criminal cases

And what is reverse burden, where does it apply?

A

Civ: Claimant
Crim: Prosecution

Civil: Balance of Probabilities
Crim: Beyond all reasonable doubt

Reverse burden: Some defences involve questioning sanity of offender. Burden is always on prosecution unless Def raises DR or insanity.

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6
Q

What is 3 x C?

A

Conduct Crimes require voluntary conduct (act or sometimes omission) and certain circumstances eg offence of perjury conduct: lie
circumstances: on oath

Consequence or result crimes also require consequence to be caused by conduct
ie did conduct cause consequence? Murder requires death to be caused by D.

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7
Q

What are the three ways Actus Reus may be committed?

A

1) Positive Act
2) State of Affairs crimes
3) Crimes of omission

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8
Q

What is a Positive Act?

A

Stabbing someone, speaking, doing something

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9
Q

What is a State of affairs crime?

A

Crimes of absolute liability.

The conduct need not be voluntary and no mens rea required where D has done nothing but is responsible for the state of affairs eg Larsonneur 1933

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10
Q

What is the case where a French woman was deported from England to Ireland, sent back to the UK handcuffed and was found guilty?

A

Larsonneur 1933

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11
Q

What is a Crime of omission?

A

What is an omission? A failure to act to prevent harm.

We follow the legal principle that there is no liability for failing to do something, only for doing something wrong. But social policy is that we should encourage this behaviour, so a person can be liable for failing to do something if a duty exists.

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12
Q

What law does France have?

A

The good Samaritan Law - Moral duty is legal obligation

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13
Q

Why might D be criminally liable for omissions?

A

1) A duty arising from a contract eg Pittwood 1902
2) A duty arising from a statute eg S5(4) Theft Act 1968 (Getting property by anothers mistake)
3) A duty arising from the creation of a dangerous situation Miller 1983 or Santana Bermudez 2003
4) A duty arising from special relationship exists eg Gibbins & Proctor 1918 or Khan & Khan 1998
5) A duty arising from a public or legal duty to act

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14
Q

What i the case where someone went to lunch, left a gate open, and people in a hay cart died due to it.

A

Pittwood 1902

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15
Q

What is the case where a Police officer was injured by sharps in D’s pocket whilst searching him and

what was the case where D was living in a squat, fell asleep smoking, and woke up to the house being on fire but didn’t attempt to put it out?

A

Santana Bermudez 2003

Miller 1983

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16
Q

What is the case where a father and his partner starved a 7 yo to death by failing to feed them?

What is the case where a man and his girlfriend took care of his little sister and she died due to him not calling for medical attention?

What was the cause where D supplied heroin to another person who took it in his presence and collapsed, and when D left and returned he was dead

What are the duty attached to these?

A

Gibbins & Proctor 1918 - Automatic assumption of duty to care

Stone & Dobinson 1977 - Voluntary assumption of duty to care

Khan & Khan 1998 - What happened and why was there no criminal liability?

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17
Q

What happened in Khan v Khan versus Evans 2009?

A

Evans 2009 Mother & older daughter gave heroin to younger daughter who died. They were both found liable despite the Khan rule?

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18
Q

What was the case where A police officer was going off shift, saw V getting kicked to death and did not intervene as he was off duty and was still guilty of omission?

A

Dytham 1979

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19
Q

What is a mens rea?

A

Guilty mind

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20
Q

What are the types of mens rea?

A

Intention direct
Intention Oblique
Recklessness
Negligence

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21
Q

What does Actus non facit reum, nisi mens sit rea mean?

A

A guilty act is not enough - the act is not guilty unless the mind is as well

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22
Q

Are there any outliers to this rule?

A

AR and MR may not coincide but guilty due to the idea of continuing act and one transaction

Allow the court to find a seperate actus reus and mens rea coinciding despite not happening at the same time

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23
Q

What is the case where a Police officer told D to park, they stopped on the officer’s foot and once told to stop D told him to wait, and what is the legal point?

A

Fagan v MPC 1968, D continued with the act, therefore making it a continuing act.

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24
Q

What is the case where D beat up V intending to kill him, he didn’t die so he threw him off a cliff, V dies then - and what is the legal point?

A

R v Thabo Meli 1954, One Transaction - A continuing series of actions may all be one transaction.

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25
Q

What was the case where a man attacked a girl in a car, she did not die but he thought she had, he threw her into the river and she instead drowned there?

A

R v Church 1966, guilty as it was a transaction. Series of continuing acts.

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26
Q

What is transferred malice and the cases related to it?

A

Mens rea may be transferred from one person to another, whether they were the original victim or not, eg A intends to hit B but hits C instead by accident.

R v Mitchell, R v Latimer and R v Pembliton

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27
Q

What is the cases where:

1) D tried to jump post office queue, elderly man mentioned it, he hit old man and old man fell onto elderly lady who broke her leg and died in treatment. Guilty of Transferred malice.

2) D aimed to hit someone with a belt in a pub, when he accidentally hit a woman’s face. Guilty of malicious wounding.

A

1) R v Mitchell 1983

2) R v Latimer 1886

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28
Q

What is the case where D was fighting, threw a stone intending to hit people but it instead broke a window and the legal point attached to it?

A

Mens rea cannot be transferred to a different defence, they were instead guilty of both assault and criminal damage.

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29
Q

Has the doctrine ever been questioned?

A

A-G Ref No3 1994, D stabbed gf, she went into labour, baby wasn’t stabbed but died later. Malice was not transferable.

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30
Q

Describe Motive and Mens Rea?

A

Mens rea has nothing to do with motive (Mohan 1975)
Mens rea is whether the accused intended to do it not why
Motive may be relevant to sentencing eg Mercy killing

R v Hicklin 1868

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31
Q

What was the case where someone was charged with possessing obscene books claiming it was to expose Roman Church where they were found guilty despite good motive.

A

R v Hicklin 1868

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32
Q

What are Specific and Basic intent defences?

A

Defence of voluntary intoxication applies differently depending on which offence D is charged with

If Specific: Can be a defence

Basic intent: Makes no difference

So what is it? Must have intended a specific outcome, eg murder.

What is basic intent? Lower level as intent such as recklessness.

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33
Q

Describe causation

A

If the act has to cause a consequence a link must be shown between the act and the result. Used only in result or consequence crimes.

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34
Q

What are the Rules of Causation?

A

To be responsible for consequence conduct must be more than a minimal cause. If result would have happened anyway, D will not be guilty.
1) Cause in fact
2) Cause in law

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35
Q

What is De Minimus Principle?

A

Very minimal acceleration in the death may be ignored eg pricking finger of someone rapidly bleeding to death.

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36
Q

Describe Cause in Fact?

A

Act must be the factual case of the crime.

AKA but for test- but for the conduct of the accused it would not have happened eg White 1910 or Pagett 1983

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37
Q

What is Causa sine qua non in English?

A

Without that act or omission the injury would not have occured

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38
Q

What is the case where a son put poison in his mothers drink and she died of a heart attack just prior?

What is the case where D held his pregnant girlfriend as a human body shield when police was shooting at them?

A

White 1910. She would of died anyways, so no factual causation.

Pagett 1983. She would not of died anyways, so factual causation there.

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39
Q

Describe Cause in Law

A

But for test produces wide range of causes, but not every person will be legally liable. It is instead moral, is D to blame?

eg Kimsey 1996, more than slight or trifling cause of the consequence, D must be more than min cause.

Multiple causes- D only needs to accelerate death. DO not have to be solec ause. If harm has been caused by multiple people, the significant causers of harm will be found guilty.

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40
Q

What is the case where D lost control of his car and killed another driver?

A

Kimsey 1996 - Dangerous driving led to guilty charge

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41
Q

What are the Rules of Legal causation?

A

1) D must have done something wrong. (Dalloway 1847, Hughes 2013)
2) Take the victim as you find them AKA thin skull rule
3) Intervening actions of victim
4) Intervening actions of third party

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42
Q

What is the case where a driver not holding reigns when a child ran under the wheels and killed the child, but was not liable as it wouldve happened whether he was holding the reigns or not?

D had accident in camper van, not fault but had no insurance and was charged for death of a driver at fault but not guilty as breach of law did not cause death

A

Dalloway 1847

Hughes 2013

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43
Q

Describe the Thin Skull rule

A

If there is something special about V making them vulnerable, D may argue condition breaks the chain of causation. Usually will fail.

Accused must accept and be responsible for all peculiarities of the victim.

Conclusion - D is liable and chain will not be broken if:
V has medical condition making injury more severe Hayward 1908

Victim has beliefs that make the injury more severe Blaue 1975

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44
Q

What is the case where a woman was stabbed and refused treatment due to her religion and ended up dying and the D was still found guilty?

A

R v Blaue 1975

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45
Q

Describe the intervening actions of the victim

A

D is still responsible if Jury are satisfied beyond reasonable doubt that original act is still operative & substantial cause of death. Eg victim may try to escape and fall under bus.

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46
Q

What is the Roberts Principle of ‘ Daft behaviour ‘

A

Roberts 1971 - D is responsible for what Victim does if it is foreseeable

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47
Q

What is the case where A girl jumped from the car due to sexual advances and got injured but D was still held liable?

What is the case where the owner of a car repair shop was run over by burgars trying to stop them and reasonably foreseeable so D liable?

A

Roberts 1971

Bristow, Dunn & Delay 2012

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48
Q

What is the causation in drug cases & unreasonable response

A

Drug cases: Free and voluntary act of self-injection by V is intervening act eg Kennedy 2007

Unreasonable response: Threat is minor and V takes drastic action eg Williams 1992

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49
Q

What is the act where V self injected and the supplier was not guilty?

A

Kennedy 2007

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50
Q

What is the act where V jumped from car due to D allegedly trying to rob him

A

Unforeseeable and unreasonable so D not guilty, nevertheless it was Williams 1992.

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51
Q

Describe the intervening acts of 3rd parties

A

Courts reluctant to find that medical treatment can break chain, It is not intervening unless negligence so potent that it renders D’s conduct insignificant as it makes it part of the history of the event eg Smith 1959 or Chesire 1991

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52
Q

What is the case where a soldier stabbed another soldier in the lung, and on the way, they were dropped and injured in respiration. Chance of recovery was 75% prior. D still liable as stabbing was overwhelming cause.

D shot victim. V had rare complications iwth treatment and ti caused V’s death and as injuries no longer life threatening; D not liable.

A

Smith 1959

Cheshire 1991

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53
Q

Is switching off life machines acceptable medical treatment?

A

Malcherek & Steel 1981 - D will still be guilty if treatment discontinued providing initial attack is operative cause of death

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54
Q

Is intention the most blameworthy type of MR?

A

Yes

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55
Q

What did Mohan 1975 lay out?

A

Motive is different to intention

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56
Q

What did the Criminal Justice Act 1967 decide?

A

Jury must consider all evidence to decide whether offender foresaw and intended (Not the RP) and any test is only evidence of intention, not automatically intention itself.

Which offences need intention? Specific intent offences.

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57
Q

What are the types of intention?

A

Direct Intention
Oblique, indirect or inferred intention
Subjective Recklessness
Negligence

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58
Q

Describe Direct Intention

A

Consequence is intended when it is D’s aim or purpose

Must want it to happen, eg Getting a gun, pointing it to head and saying “ You’re dead “ and pulling the trigger.

Direct intention difficult to prove so criminal law only requires proof of oblique intent.

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59
Q

Describe Oblique intention

A

Oblique intention is when D knows consequence is virtually certain eg a by-product even if they dont want it to happen and it is not their aim.
GOlden rule - Juries may need direction in these complex cases

Indirect intention raises questions of foreseeability, probability and natural consequences. If D saw consequences of actions as virtually certain then guilty.

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60
Q

What are the cases where:

1) D shot stepfather in gun competition, accident, not guilty on appeal.

2) Fire killed child. D knew high probability of harm and tried for murder despite no intention to kill.

3) Threw baby into wall trying to throw somewhere else. Baby died. Not guilty for murder on appeal. (Current law)

4) Severing conjoined twins sympathetically and therefore killing weaker is allowed

5) Threw boy into river. Knew he couldn’t swim. He died. Convicted for murder.

A

1) Moloney 1985

2) Nedrick 1986

3) Woollin 1967 - Jury are entitled but not bound to find intention if: THey feel consequences were VC to follow from D’s action and D foresaw this

4) Re A 2000

5) Matthew & Alleyne 2003

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61
Q

Describe Subjective Recklessness.

A

Conscious taking of unjustified risk
D must be aware of risk and risk must be unjustifiable

Justifiable Risk: Surgery to save life with little chance, driving dangerously to avoid child in the road knowing you may hit people or cars.

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62
Q

What is recklessness sufficient for?

A

Assault and Battery, ABH, Crim dmg, GBH

63
Q

What was the case where D took pre-payment gas meter from unoccupied house, caused gas leak, and then it seeped through the door and poisoned the V and he was not guilty due to no intent?

A

R V Cunningham 1957

64
Q

Describe Negligence

A

Gross negligence is mens rea required to prove Gross Negligent Manslaughter, based on civil law of negligence. Eg R v Adomako 1994

65
Q

What is the case where D was an anaesthetist and 45 minutes in switched with another, where the patient had cardiac arrest within next 45 minutes as Oxygen tube disconnected & D hadn’t noticed for 9 ins. Held - established crime above, no reasonable anaesthetist would not notice.

A

R v Adomako 1994

66
Q

Can D be guilty even if the actus reus was not voluntary and no mens rea is needed for strict liability?

A

Yes

67
Q

What was the case where D was deported to Ireland, returned to the UK by force and was still arrested for breaching aliens order 1920?

A

R v Larsonneur 1933

68
Q

What is the definition for Strict Liability Crimes?

A

An offence which does not require proof of fault for at least one part of the actus reus ie D must do the actus reus voluntarily but does not need mens rea

69
Q

Where are SL offences found?

A

Usually in statute law. P must be very clear when creating an offence of this type as there is a presumption that mens rea is required in criminal statutes.

70
Q

What is the case where D was pharmacist, supplied prescription drugs, prescriptions later found forged, D did not act dishonestly, improperly or negligently… still convicted.

A

Pharmaceutical Society of GB v Storkwain 1986

71
Q

Where may No Fault arise in SL?

A

D may be totally blameless but be guilty for AR even if they took care to avoid it

72
Q

Which is the case where D asked a vet to examine a carcass to see if it was safe to eat, the vet said it was fine, and then upon selling it it was unfit and D was found guilty anyways?

A

Callow v Tillstone 1900

73
Q

What happens when a statute does not make strict liability clear?

A

Court decides. Uses the principle in Gammon (Hong Kong) Ltd v A-G 1985.

74
Q

What was the case where The contractor, project manager and site agent for building works in Hong Kong were charged with substantially deviating from approved plans which was likely to cause risk of injury to any person or damage to any property contrary sections 40(2A)(b) and 40(2B)(b) of the Hong Kong Buildings Ordinance (revised ed. 1981) (the Ordinance). The defendants were acquitted by the magistrate on the ground that it was necessary for the offence that there was knowledge that the deviation was material, which had not been proved. On Appeal, the Court of Appeal of Hong Kong held that mens rea was not required for the offences. The case was remitted to the magistrate.

The presumption of law that mens rea is required for any criminal offence can only be displaced if (1) it is clear by the words of the statute creating the offence, or if the statute is concerned with an issue of social concern, such as public safety, and (2) the imposition of strict liability for the offence

“would be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.”

The effectiveness of the Ordinance in protecting public safety would be weakened if the mens rea of knowledge of the materiality of the deviations was required. The offences in question therefore created strict liability and the convictions were upheld.

A

Gammon (Hong Kong) Ltd v A-G 1985

75
Q

What is Strict Liability more appropriate for?

A

Quasi-criminal/Regulatory Offences - acts which carry no moral stigma on conviction and are not severe assumed to be strict liability offences ie where they are not truly crim in nature.

76
Q

Describe how they discover if there is or is not mens rea required

A

1) There is a presumption that mens rea is required unless rebutted. Presumption against imposing strict liability without good reason. eg Sweet v Parsley 1969

2) Statutory interpretation, wording of act may indicate whether it requires MR or not. Mens rea needed: Knowingly, Wilfully, Permitting, Intentionally, etc.
May not be needed: ‘cause (Alphacell v Woodward 1972), possess, use

3) Issue of social concern & public safety, presumption more likely displaced and more likely SL if it involves social concern eg misuse of drugs, road safety, gambling
Licensing abuse Cundy v Le Cocq 1884
Selling unfit food (Consumer protection) Smedleys Ltd v Breed
Unsafe buildings Gammon Ltd v A-G Hong Kong 1985

4) Penalty Imposed - If statute seeks to impose small penal sanction courts are most likely to make it SL. Very few involve prison eg speeding.

5) Necessary to enforce the law - Presumption in favour of MR stands unless strict liability would encourage observation of law.

77
Q

What were the cases where:

1) D let farmhouse out to students where cannabis were being smoked by the students. D charged for concerned for management of premises used for purpose of smoking cannabis, NG as mens rea required.

2) D charged of selling alcohol to drunk person. Individual did not display any signs of drunk, but offence complete, drink sold and customer was drunk.

3) 4/3.5 mil tins of peas held caterpillar unavoidable due to collection process. Held that fine that even with human agency it is unavoidable. However, caterpillar could’ve been took out.. so liable.

A

1) Sweet v Parsley 1969

2) Cundy v Le Cocq 1884

3) Smedleys Ltd v Breed 1974

78
Q

What is the case where D was charged with causing polluted matter to enter river as the pipe belonging to D’s factory had been blocked and not fixed. Still held liable.

A

Alphacell v Woodward 1972.

79
Q

How are illegal broadcasts dealt with?

A

Blake 1997
D was accused of making unlicensed radio broadcasts. Held as guilty for offence as this was created for public safety to avoid interference with emergency broadcasts.

80
Q

What is a possible defence for SL?

A

Due diligence
No consistency in use of this defence and can make it hard for court to decide whether it is available to D eg Lim Chin Aik 1963 (But Callow is good too)

81
Q

What is Murder, and what can it be moved down to?

A

Intending to and causing death or GBH.

Can be reduced to Voluntary manslaughter.

82
Q

What is voluntary manslaughter

A

Murder proved but partial defence eg DR or Loss of Control reduces it.

83
Q

What is involuntary manslaughter?

A

Where murder cannot be proved, Constructive manslaughter, Gross Negligent Manslaughter and Subjective Reckless manslaughter instead (Also unlawful act manslaughter)

84
Q

What is the definition of murder in Common Law

A

Murder is unlawful killing of reasonable creature in being under King’s peace with malice aforethought as defined by 17th C Sir Edward Coke

Jurisdiction - Murder committed by a British citizen in any Country may be tried in Britain

85
Q

What is the Actus Reus of murder?

A

a) Unlawful Killing (Justified can be self defence or death penalty)
b) Death can be caused (By act or omission, Gibbins & Proctor 1918)
c) Reasonable creature (Victim must be human)
d) In being (alive) (When does life end - Brain stem dead. When does life begin? Child must have independent existence from mother.)
e) Under the king’s peace (No offence to kill enemy in wartime)

Prosecutions should be brought within 3 years unless Attorney-General agrees

86
Q

When is causation an issue?
What is the chain of causation?

A

Result crimes such as murder
Link has to be proved between D’s act or omission

Cause in fact (White, Pagett)

Cause in law (Dalloway, Blaue, Robert, etc)

87
Q

What is the mens rea for murder?

A

With malice aforethought (murder requires a specific intent) which can be:

Express malice (intent to kill)
Implied malice (Intent to cause GBH but V dies)
eg Vickers 1957

88
Q

What is the case where a sweet shop lady was killed by intruder, charged with murder anyways due to GBH intent

A

Vickers 1957

89
Q

What Reform was put forward for murder?

A

Law Commission Report 2006 - Murder, Manslaughter and Infanticide
1) Murder to be divided:
First degree - D intended to kill or intended GBH but aware that conduct serious risk of death (Mandatory life)
Second degree - D intended to GBH but not aware of risk of death (max life at discretion of judge)
2) DR and loss of control to reduce first to second degree murder
3) Duress to be allowed to murder

90
Q

What did Loss of Control replace?

A

Provocation

91
Q

What must you prove first? Where does it apply? Is the burden of proof reversed?

A

Murder
D intended Death or GBH But has an excuse
Burden of proof is not reversed

92
Q

What act declared LOC?

A

S54 + S55 of Corners and Justice Act 2009

93
Q

What are the requirements needed for LOC?

A

1) D must have lost self-control
2) There must be a qualifying trigger
3) Reasonableness of D’s response

94
Q

Describe D having lost self control

A

Need not be sudden and temporary any more but the longer the gap the more likely not to be allowed. eg Jewell 2014 (new law)

New rule is kinder to killer who has cooling off period. Courts can now take this into account rather than one breaking incident.

95
Q

What was thec ase where D had loss of sleep, tired and depressed, and used a shotgun to kill V and fled the scene and LOC was not allowed?

A

Jewell 2014

96
Q

Describe the need to be a qualifying trigger

A

Fear of serious violence trigger
Subjective test - D must show genuine fear for V, does not need to be reasonable, must be due to fear of death or serious violence from V against D or another identifiable person. VIctory for Ahluwalia as evidence of V’s bad character is of value (Ahluwalia battered wife syndrome)
Old law on provocation did not allow a defence where D lost control through fear of violence, unlike the old provocation law, but they cannot use the trigger if self induced eg Martin (Anthony) 2002 or Dawes 2013

Things said or done/anger trigger - D’s LOC was attributable to things said, done or both which:
a) Constituted circumstances of extremely grave character AND
b) Caused D to have justifiable sense of being seriously wronged

Many cases where D able to use def would now not come within defence of loss of Control eg Doughty 1986 or Zebedee 2012

97
Q

What are the cases where:
1) Lived in isolated farm, two people broke into it, shot the two people killing one and injuring the other, self defence rejected, Provocation not allowed, DR allowed after appeal. LOC may now apply though.

2) D found wife & V on sofa. Fought. killed both w/ knife. Neither threatened him, so no LOC.

3) D killed baby due to it crying. Crying was provocation. Murder quashed and provocation allowed - would not be justifiable under new law.

4) 94 yo father soiled self. D lost control and killed. LOC not allowed, not extremely grave or justifiable.

A

1) Martin 2002

2) Dawes 2013

3) Doughty 1986

4) Zebedee 2012

98
Q

What are excluded matters in the need of a qualifying trigger?

A

EXcluded matters s55(6):
1) Revenge cannot be a trigger, old law unchanged - Ibrams & Gregory 1981.

2) Sexual infidelity alone is excluded unless combined with another factor (Clinton). Used to be allowed, no longer is

It is difficult to separate from other triggers, eg D kills husband due to raping her sister, act of infidelity may be excluded but the qualifying trigger could be the rape.
Clinton 2012
Self induced provocation is no trigger Dawes 2013

99
Q

What is the cases where…

1) D+D terrorised by ex. DD planned to attack ex but killed him. 5 day gap between original provoking made it revenge, so no LOC.

2) Infidelity part of def, not on its own. Wife cheated on him but also taunted him. Mocked him and threatened to take kids if she just had affair, D couldn’t of used LOC.

A

1) Ibrams & Gregory 1981

2) Clinton 2012

100
Q

Describe Reasonableness of D’s response

A

Person of D’s age and sex with normal degree of tolerance & self-restraint and in circumstances of D might have reacted in same way as D. eg might normal woman with ordinary level of self-control, 23 years old, beaten regularly, would have killed D aswell?
a) Normal standard of self-control expected
b) In the relevant circumstances of D

101
Q

Describe normal standard of self-control expected

A

Explains power of self control expected of them, age and sex otherwise objective, repugnant characters eg glue sniffing excluded, perso with less than normal tolerance needs a medical reason and plead DR eg Camplin

102
Q

Describe int he relevant circumstances of D

A

Responding to gravity of P, might a normal person react in the samew ay? Excludes short temper and characteristics affecting self control eg jealousy or depression or alcoholism. Includes history of abuse, eg battered wife syndrome. Gregson 2006 + Rejmanski 2017

103
Q

What was the case where it questioned whether an unemployed depressed epileptic taunted would have done the same

What was the case where a Jury could consider army experience causing PTSD

A

1) Gregson 2006

2) Rejmanski 2017

104
Q

Must a Judge have sufficient evidence for LOC and do they bring it up in court?

A

Yes. Christian 2018

105
Q

What was the case where D killed two flatmates over argument about hot water. Judge ruled that LOC could not go to jury as although there was evidence he decided no jury could find a reasonable person might have behaved that way.

A

Christian 2018

106
Q

Where does Diminished responsibility come from?

A

s2 Homicide Act 1957 amended by s.52 Coroners and Justice Act

107
Q

What are three key facts about DR?

Where does it apply?

A

Prove murder first
Partial Def
Specific Def

D intended death or GBH but… has psychiatric problems

It is a reverse burden.

108
Q

What are the key differences between old DR and new DR?

A

Abnormality of mind became Abnormality of mental functioning

Internal cause became Arising from a recognised mental condition

Substantial impairment became Which substantially impaired D’s ability to do one of three things

109
Q

What are the requirements for DR?

A

1) Abnormality of mental functioning
2) The cause of abnormality must be a recognised medical condition
3) The condition must substantially impair D’s responsibility - meaning of substantial is a Q for the jury to decide

110
Q

Describe abnormality of mental functioning

A

D must show objectively that a RP would find state of mind abnormal.
‘A state of mind so different from that of ordinary people that the reasonable person would term it abnormal ‘ - Byrne 1960

Brennan v R 2014 murder squashed manslaughter allowed

111
Q

What is the case where D sexual psychopath and unable to resist, convicted for murder after strangling and doing things with womans body, conviction quashed and replaced with manslaughter by CA.

A

Byrne 1960

112
Q

Describe the cause of the abnormality needing to be a recognised medical condition

A

Recognised medical conditions can bef ound in lists such as WHO (world health organisation) including physical, psychiatric and psychological conditions. Conditiond oes not have to be perm but must exist at time of killing. Medical evidence is neede.

Includes:
Depression
Irresistible Impulse (Byrne)
Battered wife syndrome (ahluwalia 1993)
Alcoholism
Alcohol Dependency Syndrome
Adjustment disorder
Post-natal depression
Paranoia
Autism

113
Q

Describe the condition needing to substantially impair D’s responsibility (Meaning of substantial is Q for Jury to decide)

A

Golds 2016 Jury needs not direction, only common sense, must be more than trivial though.

Lloyd 1967 Significant not trivial or total

114
Q

What case was:

1)D killed partner, claimed DR. Judge did not explain meaning of substantial. D found guilty of murder. Appeal dismissed so DR not allowed.

2) Held that substantial does not mean total, not trivial or minimal. D killed his wife, had reactive depression, not substantial impairment.

A

1) Golds 2016

2) Lloyd 1967

115
Q

What must be substantially impaired?

A

D must be substantially unable to:
A) Understand nature of conduct
B) Form a rational Judgment (eg Irrational judgment placing son in river to drown in Price 1971)
C) Exercise self control

Burden of proof on defendant but only balance of probabilities R v Wilcocks 2016

116
Q

How does Intoxication work with DR?

A

1) Transient, Temporary intoxication cannot lead to DR (Dowds 2012)

2) D is intoxicated and also suffers from unrelated abnormality of mental functioning (Dietschmann 2003)

3) D’s abnormality is caused by addiction eg ADS

117
Q

What is the case where D stabbed gf 63 times. Both binge drinkers. No diminished responsibility as not alcoholic.

A

Dowds 2012

118
Q

Describe when D is intoxicated and also suffers from unrelated abnormality of mental functioning

A

Where D has a RMC and was voluntarily intoxicated Jury can take both into account so long as the intoxication is related to RMC

119
Q

What is the Dietschmann 2003 three part test?

A

1) If D had abnormality of mental functioning arising from recognised medical condition
2) Whether the abnormality substantially impaired D’s ability to understand the nature of his conduct/form a rational judgement and/or exercise self control
3) And whether the abnormality caused, or was a significant factor in causing D to kill V.

120
Q

What is the case where D was upset at V for disrespecting late aunt. Killed V. D suffering from adjustment disorder but had whiskey and cider. Convicted then appealed, DR allowed.

A

Dietschmann 2003

121
Q

Describe the case where D was a paranoid schizophrenic and Drunk/drugged no medical evidence that underlying illness, schizophrenia, serious enough that independent from drunk or drugs it impaired responsibility substantially, so murder upheld.

A

R v Joyce and Kay 2017

122
Q

Describe D’s abnormality caused by addiction eg ADS

A

1) D has brain damage as result of alcohol misuse eg R v Wood 2008

2) Where D is intoxicated involuntarily because of spiked drinks or alcoholism which leaves d with no control over drinking. Contrast the view in R v Tandy with R v Wood and R v Stewart

123
Q

What is the case where CA showed more sympathy for D whilst suffering from ADS

A

Wood 2008

124
Q

What is the three stage test for juries from Stewart 2009

A

1) Was there abnormality of mental functioning?
2) Was the abnormality caused by alcohol dependency syndrome?
3) Was mental responsibility substantially impaired?

125
Q

What is the definition of Gross Negligence Manslaughter?

A

Definition - Where person owes duty of care and breaches this by being grossly negligent creating a risk of death, may be guilty of manslaughter if someone dies as a result eg Adomako 1994 three ingredients

126
Q

What is the actus Reus of Gross Negligence manslaughter?

A

1) A duty of care must be owed by accused to the victim
2) The duty must be breached
3) Causing death

127
Q

Describe how a Duty of care must be owed by accused to the victim

A

Based broadly on civil war, eg Donoghue v Stevenson 1932 there is a duty to not harm anyone who may be affected by your negligence.
Caparo 1990: Civil tests of harm foreseeable, proximity, fair, just and reasonable to impose duty.

Many will be duty situations fixed by law such as
Statutory duties - Litchfield 1997
Doctor: patient Adomako 1994
Landlord: tenant Singh 1999

A contractual duty is not needed for duty of care to exist. Khan & Khan 1998 - Drug supplier not guilty of leaving user alone to die but CA said duty situations could be extended to type of area.

Where D created dangerous situation: Evans 2009 - sister created state of affairs by supplying drug which she knew threatened life and breached duty by failing to get help.

128
Q

What is the case where master of ship sailed knowing engines might fail. Three crew died when engine failed to ensure gas heater was safe.

A

Singh 1999.

129
Q

What is the Confusion between civil law Negligence and Duty of care?

A

Lord McKay 1994 said ordinary rules of negligence apply to GNM. BUT duty is not exactly same in civil law.

eg Wacker 2002 & Willoughby 2004

130
Q

What is the case where D agreed to take 60 illegal immigrants to England, closed vent, most died, Conviction of manslaughter upheld in CA, made it clear immigrants could not sue due to being associates in crime.

What is the case where D owned an old disused pub, went into debt and unable to sell pub. Engaged person to help set fire to pub to claim insurance, explosion occurred and killed other person, D convicted for GNM.

A

1) Wacker 2002

2) Willoughby 2004

131
Q

Describe how a Duty may be breached

A

Did D’s conduct fall below that of a reasonable person in the same situation?

Breach can be by act or omission. Contrast with Lowe in Constructive manslaughter.
Rules on duty and omissions apply if conduct is omission. eg Stone & Dobinson 1977

Duty is breached if D did not act as RP/reasonable doctor eg Edwards 2001

Act need not be unlawful it may be lawful act negligently performed eg an operation

132
Q

Describe how causation applies to Causing death

A

Broughton 2020
This case demonstrates high test for causation which is required for gross negligence manslaughter.

133
Q

What ist hec ase where D supplied drugs to gf, didnt do anything ab it, held Jury couldnt be certain that he wouldve stopped her death. NG of GNM.

A

Broughton 2020.

134
Q

What is the Mens rea of GNM?

A

1) D must be grossly negligent eg Adomako 1994, Holloway and Prentice et al (appealed together), Lord McKay: Essence of the matter, which is supremely a Jury question, is whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgement to a criminal act or omission.

Circular unhelpful test, alternatives: R v Cornish 2016 (Jury must consider breach to be so flagrant and atrocious it would consequently amount to a crime)
or Old Bateman 1925 test:
Going beyond a mere matter of compensation OR showing such disregard for life and safety of others as to amount to death dealing punishment.

2) Risk of death
When breaching Duty of Care, Ds conduct must pose reasonably foreseeable serious and obvious risk to death.

135
Q

What type of offence is Assault or Battery?

A

Common law, however has some statutory aspects eg CJA 1988 s39 downgrading them from TEW to summary offences but did not define them.

136
Q

What is the definition of assault/Technical assault?

A

Conduct by D which causes the victim to apprehend the infliction of some immediate, unlawful force, eg aiming a kick or menacing gesture

137
Q

What ist he actus reus of Assault?

A

a) an Act
Some acts or words are required - It can be by acts, gestures, words or silence
eg Ireland 1997, Constanza 1997 + Wilson 1995

b) Which causes V to apprehend infliction of immediate or unlawful force - V must expect personal violence or force (touching), need not be frightened.

Fear/Apprehension of force - Lamb 1967
Words can prevent an action from being an assault - Tuberville v Savage 1669.

Immediate
Usually D must be present with the V and able to carry out any threat. Does not include ‘ I will give you a beating one of these days ‘

Imminent not immediate - Smith v Chief Superintendent of Woking Police Station 1983

138
Q

What are the cases where:

1) Silent telephone calls, not an act but caused fear
2) 800 letters from D, 2 of which contained threats.
3) Get out the knives could amount to an assault.
4) Two kids playing with a loaded gun thinking it was unloaded and one shot the other. Not assault as there was no apprehension of violence from the other child.
5) Man put hand on sword hilt and told him that if it were not assize time he would kill him, no assault as he said he wouldnt
6) D went into garden and looked through Bedroom window. She was terrified thinking he was going to enter and attack even though he had no way to. Still assault due to apprehension.

A

1) Ireland 1997
2) Constanza 1997
3) Wilson 1995
4) Lamb 1967
5) Tuberville v Savage
6) Smith v Chief Superintendent of Woking Police Station 1983

139
Q

What is the Mens Rea of Assault?

A

D must either intend to cause someone fear of immediate unlawful personal violence

or do so recklessly ie realising there is a risk of causing fear eg Venna 1975

140
Q

What is the case where D kicked at police to keep away and ended a officer and it was considered reckless enough for A&B?

A

Venna 1975

141
Q

What is the definition of Battery?

A

Where D intentionally or recklessly applies unlawful physical force to another person

142
Q

What is the actus reus of Battery?

A

Application of unlawful force
Must be physical and not merely emotional but touch enough: Thomas 1985, Collins v Wilcock.
contains continuing act too.

Direct and Indirect Acts-
Direct: Can be directly physical contact eg spitting Misalati 2017

Indirect: Eg digging pit for victim to fall into, Martin 1881, Khan 1990, Scott v Shepherd 1773

Need not be hostile eg Cole v Turner 1704

Cannot usually be by omission but Santana v Bermudez 2003

143
Q

What case is…
1) Stated obiter that touching bottom of womans skirt is equivalent to touching lady herself
2) Lawful to touch to attract attention but not to restrain unless arresting
3) Spitting is battery
4) D locked fire exits, turned out lights, shouted fire and people injure themselves in panic and guilty of indirect battery for it.
5) 15 yo put acid in hot air hand drier to use it later, someone used the drier and it squirted into their face and caused burns, leading to indirect battery.
6) Civil, D threw lighted squib into market, two or more people threw onto ultimate victim. Battery.

A

1) Thomas 1985
2) Collins v Wilcock
3) Misalati 2017
4) Martin 1881
5) Khan 1990
6) Scott v Shepherd 1773

144
Q

What is the Mens Rea of Battery?

A

D must either intend to apply unlawful force or do so recklessly ie realise there is a risk eg Venna 1975.

145
Q

What is the definition of Statutory Assaults/ABH and where is it defined?

A

An assault or battery which causes actual bodily harm

Offences against the Person Act 1861

146
Q

What is the Actus Reus of ABH?

A

1) Causing an unlawful common assault (can be assault OR battery, usually battery)
2) That causes actual bodily harm

147
Q

What is ABH?

A

T v DPP 2003 Temporary loss of consciousness
DPP v Smith 2006 Cutting victims hair
Ireland 1997 Psychiatric injury
Scratches, bruises, abrasions, swelling

148
Q

What did Chan Fook 1994 confirm?

A

1) Discomfort is not enough
2) Includes Psychiatric harm

149
Q

What is the case where D aggressively questioned woman who he thought stole an engagement ring, dragged her upstairs and locked in room, victim in nervous, hysterical condition not enough. ABH included psychiatric harm but not panic, conviction quashed.

A

Chan Fook 1994

150
Q

What is the Mens Rea of ABH?

A

1) Prove MR of A & B - must intend or be reckless. No need to prove D intended to cause ABH or that he was reckless for it eg Roberts 1971

151
Q

What is the definition of GBH?

A

To maliciously unlawfully wound or inflict GBH upon any person. Sentence- Max 5 years/TEW.

Actus Reus s20:
Unlawful - Melin 2019
1) Wounding, cut or break in the skin, both inner and outer, must be broken. Usually bleeding. Does not include bruises.
eg Wood 1830

2) OR inflicting GBH injury need not be permanent or life threatening.

Saunders 1985 - Serious bodily harm sufficient
Rv Bollom 2004 - Age of child relevant
R v Dica 2004 - Biological GBH (D had unprotected sex despite being HIV positive)
Jury could take age into account when deciding extent of injury

INFLICT - Despite prev ideas that cause and inflict mean different things have diff requirements, now settled that they just mean ‘ to cause’

152
Q

What is the Mens Rea (S20) of GBH?

A

Wounding or GBH must be done maliciously: intending to inflict some physical or psychiatric harm not serious harm or
Reckless (Cunningham test) - D must be aware that he might cause physical or psychiatric harm to another albeit not serious harm.
R v cunningham 1957 - GAS
Savage 1991 - Confirmed that subjective recklessness applied where maliciousness required

153
Q

What is S18 OAPA 1861 GBH with intent

A

Def - To unlawfully wound or cause any GBH to any person. Sentence - Max life imprisonment/Indictable

May be committed by Actus reus
Unlawful wounding or Unlawfully causing GBH (includes psychiatric)

Mens rea
With intention to:
Cause GBH (Serious harm, intention to wound not enough Taylor 2009)
or
To resist arrest to prevent lawful arrest or detention of another person. Probably police officer trying to arrest D but could be another person.

Law Paper 1 (15 decks)

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