SQE CLP and Criminal Flashcards
6 principal ways to exclude evidence
- Submission of no case to answer
- Application for dismissal
- Exclusion under s.78 PACE
- Exclusion under s.76 PACE
- Exclusion under reserved common law rules in s.82(3) PACE
- Abuse of process application
When can an application for dismissal be made?
Who is the application made to?
Can an application be an oral application?
What is the test for dismissal?
Timing of application:
1. After D sent to CC by M
2. After evidence put to D by M
3. Before arraignment
Who is app made to?
To the CC judge
Can app be oral?
Yes, but written notice needs to be given if the application is going to be made orally
Test for dismissal:
1. No evidence that D committed the offence OR
2. The prosecution evidence, taken at its highest, is not enough for a properly directed jury to properly convict on
Test for no case to answer (I.e. the Galbraith test)
When is Galbraith submission made?
Is the court required to give reasons when rejecting this app?
What is the process in CC?
Same as for application for dismissal
- There is no evidence that the offence was committed by D OR
- The prosecution evidence, taken at its highest, is not enough for a properly directed jury to properly convict D
When is it made?
- close of P case
Reasons?
No.
Process CC:
- App will be made in the absence of the jury
- P must have an opportunity to make representations
When does the court have the power to stay proceedings for abuse of process?
Examples of where the defence might raise abuse of process?
Can delay count as abuse of process?
The court has the power to stay for abuse of proceedings where:
(1) it could not afford D a fair trial
(2) it would jeapordise the integrity of the justice system
Examples:
(1) D tricked or coerced into committing an offence would not normally commit
(2) Prosecution unequivocally promised would not be convicted of this offence
(3) Actions of police have undermined public faith in the criminal justice system - e.g. destroying evidence
(4) the prosecution have misused or manipulated the court so as to deprive D of a protection afforded by law
Delay?
- Yes - if P has deliberately delayed prosecution to gain tactical advantage, this can be an abuse of process
Rights under Code C of PACE:
Another example where s.78 could be used:
(1) Right to have someone informed of your arrest
(2) Right to consult a solicitor
(3) Right to consult the Code of Practice
(4) Caution to be given on arrest
(5) Caution to be given before any interview
(6) Interview should be conducted at a police station unless an exception applies
(7) Juveniles and vulnerable people should have an AA
Another example:
- Proper ID procedure was not used
Wording to use for a submission under s.78 to exclude evidence:
[details of the breach of COP and submission] having regard to the circumstances in which this evidence was obtained its admission would have such an adverse effect on the fairness of the trial that the court ought not to admit it.
What should you consider when making a submission to exclude evidence under s.78 PACE?
Whether the breach was “significant and substantial”
Did the conduct of the police lead to injustice or unfairness?
What is factual causation and what is the test?
What is legal causation?
Factual causation:
The defendant’s act or omission was in fact the cause of the consequence
Test - ‘but for’ test
Legal causation:
The defendant’s act or omission was the legal cause of the consequence
The law checks culpability and action/omission must be ‘operating and substantial’ cause
What is a ‘substantial’ cause of harm when looking at legal causation?
It need not be the only or principal cause but it needs to be more than minimal
What is required in a case of medical negligence for it to count as a novus actus interveniens?
Only if the second cause (medical negligence) is so overwhelming as to make the original wound merely part of the history can it be said that death does not follow from the wound
What is required for an act of a third party to count as a novus actus interveniens?
There will only be a break in the chain of causation if the actions of the third party are ‘free, deliberate and informed’
3 types of ‘acts of the victim’ that can be novus actus interveniens?
What will be required of each for it to be a novus actus intervenien?
3 types:
1. Fright or flight
2. Refusing medical treatment
3. Suicide
Fright or flight
1. whether it was reasonably foreseeable that some harm, albeit not serious harm, was likely to result from the threat itself
2. whether the victim’s reaction was within the range of responses which might be expected from a victim placed in the situation which he was
(e.g. victim stuck in car with someone making unwanted sexual advances, jumps out of car and sustains injuries, if foreseeable that would jump out of car then D is liable)
Refusing medical treatment
- Defendant’s take victim as they find them - if someone refuses a life-saving transfusion on religious grounds, D still liable for death
Suicide
- D still liable where the act was reasonably foreseeable eg where the defendant causes a brilliant pianist to lose her fingers, or a keen sportsman to be paralysed
- May not be if e.g. wounds healed then commit suicide OR voluntary and informed decision of V to act
When will natural events break the chain of caustion?
A natural event will only break the chain of causation if it is ‘extraordinary and not reasonably foreseeable’
General rule on omissions:
An omission, without a duty, cannot create an indictable offence
5 elements prosecution will need to prove to convict D of offence of omission:
- The offence is capable of being committed by omission
- D was under a duty to act
- D breached the duty
- The breach caused the actus reus of the offence to occur
- If applicable, D had the necessary mens rea
6 situations where D may be under a duty to act (looking at omissions):
- By statute
- Special relationship
- Voluntary assumption of responsibility
- Contract
- D creating a dangerous situation
- Public office
Examples of special relationships:
(Looking at liability from omissions arising from duties)
- Doctors and patients
- Parents and their children
- Spouses
Explanation of the duty someone is under if they create a dangerous situation:
Look at example of a house fire
If a person accidently started a fire in a house, the person has a duty to take reasonable steps to counteract the dangerous situation created. The steps need only be reasonable, so a person would not be expected to risk their own life to save the lives of others, but they would be expected to take reasonable steps, such as summoning help, warning any occupants of the house that it is on fire, and so on.
What is direct intention?
Intention because it is the purpose of D’s act or aim
What is oblique intention?
Firstly, it is not a substitute for direct intention but evidence that intention exists
Oblique intent is where the consequence is not the defendant’s purpose but rather a side effect that D accepts as an inevitable or certain accompaniment to D’s direct intention (the consequence is a virtual certainty of D’s actions)
AND
D appreciated this was the case
What is recklessness?
Where D does not intend to cause harm but foresees the risk of harm and takes the risk anyway [this is subjective to D]
Taking the risk must also be unjustifiable (e.g. russian roulette never justified, surgeon carrying out risky procedure might be)
What is the coincidence of AR and MR principle?
What are the exceptions?
As a general rule, the defendant must have the relevant mens rea for the offence at the precise moment when D commits the actus reus. This is known as the requirement for coincidence of actus reus and mens rea
Exceptions:
1. Continuing act theory - D can be liable where AR is continuing and MR formed at some point during
2. Series of acts - where action categorised as series of acts it is enough for D to have MR at some point during the whole action
What is the principle of transferred malice?
Where D has intention to shoot A but misses and shoots B, find liability for murder through transferred malice EXCEPT:
* D’s MR can only be transferred where it is for the same offence
* No double/general transfer of MR – where man stabs woman to kill her but also stabs foetus which is later born alive but then dies from those injuries, MR can’t be transferred
Mistakes that negate mens rea:
Could be a mistake of fact: for example if the defendant takes the wrong umbrella away from a restaurant, mistakenly believing it is their umbrella, there will be no liability for theft because D will not be dishonest.
If the mens rea required for the relevant element of the actus reus is intention or recklessness, there is no need for the mistake to be reasonable.
If the mens rea requirement is negligence, then the mistake must be reasonable.
Elements to partial defence of loss of control
- D’s action resulted from a loss of self-control
- The loss of self-control was caused by a qualifying trigger
- A person of D’s age and sex with a normal degree of tolerance and self-resrtaint in the same circumstances might act in the same way/similar way
What are the qualifying triggers for loss of self-control?
- Fear trigger
- if D actually feared violence agains self or another identifiable person AND
- the violence D feared was serious violence - Anger trigger
- D loses control because of something said or done
- and what was said or done was of an ‘extremely grave character’
- and caused D to have a justifiable sense of being seriously wronged
(can’t be incited by D)
Elements for diminished responsibility partial defence?
- D suffers from an abnormality of mental functioning
- This arises from a recognised medical condition
- Which causes substantial impairment
- The abnormality of mental functioning provides an explanation for the killing
Elements of involuntary manslaughter - constructive manslaughter?
- D has intentionally done an act
- The act is unlawful
- The act is objectively dangerous [sober and reasonable person would recognise that it subjects the other person to some harm]
- The act has, in fact and in law, caused the death of the other person
Elements of gross negligence manslaughter:
- D must owe the deceased a duty of care
- D must have breached that duty
- The breach involves a serious and obvious risk of death that was reasonably foreseeable
- The breach caused death
- The breach can be classed as grossly negligent
Elements of a common assault offence:
- D must cause V to apprehend immediate harm in the form of unlawful personal violence
- D must intend or be reckless as to causing V to apprehend unlawful and immediate violence
Elements of battery offence:
- D must unlawfully apply force to V
- D must intend or be reckless as to the application of force
NB: Unlawfulness means there was no consent and consent can be express (handshake) or implied (getting on the tube at rush hour)
NB: D has a defence if had a genuine belief of consent even if he was mistaken
s.47 offence?
Assault occasioning ABH
Elements for a s.47 offence:
- D must commit assault or battery
- Must cause V harm that amounts to ABH
s.20 offence?
Wounding/inflicting GBH WITHOUT intent
Elements of a s.20 offence:
- D must wound or inflict GBH
- D must intend SOME harm or be reckless as to causing SOME harm
s.18 offence?
Wounding/causing GBH WITH intent
Elements of a s.18 offence:
- D wounds or inflicts GBH
- D must INTEND to cause GBH or resist lawful arrest
s.1 Theft Act offence?
Theft
Elements of s.1 theft offence?
- D appropriates the property
- Belonging to another
- Dishonestly
- With intention to permanently deprive
s.8 theft act offence?
Robbery
Elements of a s.8 robbery offence?
- D must commit theft
- D must use force, or fear of force, on any person
- Immediately before or at the time of stealing
- The force must be used in order to steal
- D must have intended to use force (or fear of force) for the purpose of stealing
What is a s.9 theft act offence?
Burglary
Elements of a s.9 burglary offence?
Offence can be committed in two separate ways:
s.9(1)(a) - offence committed on entry
s.9(1)(b) - offence committed when commit ulterior offence after entry
- D must enter a building as a trespasser
(can be part of a building) - D must have necessary intention or recklessness as to being a trespasser
- s.9(1)(a) - D must intend to commit ulterior offence on entry [theft, inflict GBH, criminal damage]
- s.9(1)(b) - D must commit an ulterior offence [steal/attempt to steal or inflict/attempt to inflict GBH]
What is a s.10 theft act offence?
Aggravated burglary
Elements of a s.10 aggravated burglary offence?
- D must commit burglary
- D must have with him at the time of the burglary an aggravating article
(for (a) at time of entry and (b) when UO committed)
- does not need to be on his person could be readily accessible and still count - The article is a firearm, explosive, weapon of offense or imitation firearm
3 fraud offences:
- fraud by false representation
- fraud by abuse of position
- fraud by failing to disclose
Elements for fraud by false representation:
- D made a representation
- The representation was false
- D knew the representation is/might be false
- D is dishonest in making the representation
- D intended to make a gain or cause a loss as a result of the representation
Elements of fraud by failure to disclose:
- D must fail to disclose information
- D must be under a duty to disclose
- D must have been dishonest in their failure to disclose
- D must have intended to make a gain or cause a loss as a result of failure to disclose
Elements of fraud by abuse of position:
- D must occupy a position
- The position is one that requires D to safeguard, or not act against, the interests of another
- D must abuse position
- D must act dishonestly in abusing position
- D must intend to make a gain or cause a loss as a result of abuse of position
Elements of simple criminal damage:
- D causes damage or destruction to property
- Property belongs to another
- D does so without lawful reason or excuse
- D has the necessary intent or recklessness as to causing damage or destruction
NB: by fire if the charge is basic arson but same elements otherwise
Elements of aggravated criminal damage:
- D damages or destroys property
- Belonging to another
- D intends or is reckless as to causing damage or destruction
- D intends or is reckless as to the endangerment of life by damage or destruction
NB: endangerment of life needs to arise from the damage done to property not the means by which it is damaged
Who is an innocent agent?
person commits AR for offence on instruction of another individual but cannot be found liable for some reason
potentially because lacks MR or mental capacity
Requirements to establish accessorial liability:
- Principal offender must commit principal offence
- D must aid, abet, counsel or procure the commission of the principal offence
- D must have knowledge of the essential matters of the principal offence
- D must intend to assist or encourage and for the principal offence to be committed
What does aid, abet, counsel and procure mean?
What about if help after offence committed?
Aid - assist, support or help person PO commit offence
- Providing weapon, acting as look out
Abet - incite, instigate or otherwise encourage him to commit an offence
- Shouting words of encouragement or cheering or applauding during event
Counsel - advise or solicit him on how to commit offence
- Hiring hitman to carry out a murder
Procure - D has caused, in some way, offence to come about
- Lacing PO’s drink, knowing he will drive home intoxicated as a result (an offence)
- Directing wife to have sex with someone else knowing she does not consent
Timing:
- Not an accessory if assist after the offence has been committed
Relevance of causation in accessorial liability
No requirement of causation of the PO but must be some connecting link between D’s actions and PO
