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SQE 1 - Criminal Law +Practice > The core principles of a criminal liability (actus reus, mens rea, specific and general defences, participation) > Flashcards

The core principles of a criminal liability (actus reus, mens rea, specific and general defences, participation) Flashcards

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1
Q

What is the standard of proof for a criminal conviction?

A

Beyond reasonable doubt.

The prosecution has both the legal and evidential burden of proof.

Defendant only has BoP in diminished responsibility - this is lower BoP

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1
Q

What is necessary to establish criminal liability

A
  1. AR
  2. MR
  3. Absence of a defence
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2
Q

When might an omission to act result in a conviction

A

General rule - no liability for omissions

Exception - where D is under a positive duty to act.

1- when there is a relevant statutory offence
2- when there is a duty of care in place such as between doctors and patients, lifeguards.
3 - when there is a special relationship either by family ties or by D assuming a duty.
4 - when the defendant has created a dangerous situation.

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3
Q

What is the test for factual causation

A

The but for test.

“but for” the defendants actions would the consequence have occurred.

The defendant’s act must accelerate death

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4
Q

What is the test for legal causation?

A

The defendant’s actions must be the substantial and operating cause of the consequence.

  • the consequence must be attributable to a culpable act or omission
  • the act must be a more than minimal cause of the consequence
  • the act need not be the sole cause
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5
Q

What does ‘take your victim as you find them mean”

A

If the victim has a predisposed weakness or religious belief which prevents them from seeking treatment or causes their harm to be more severe, this has no impact on the case. D will still be guilty.

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6
Q

Name 3 ways the chain of causation may be broken

A
  1. the victim acts in a particular way
  2. a third party acts in a particular way
  3. some event occurs between the D’s conduct and end result

1 - victim’s acts must be free, deliberate and informed.

Voluntary euthanasia doesn’t necessarily break the chain of causation.

2 - D will not be liable if the third party’s act is free, deliberate and informed or not reasonably foreseeable

Medical negligence - public policy not normally the case. Exception - if injuries had mostly healed. The cause was medical treatment which was ‘so palpably wrong’. If the original injury is still operating at the time of death D will be liable. Must be so independent of D’s actions and so potent in causing death.

3 - an act of god might break the chain - unforseeability of the event is the factor.

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7
Q

What is direct intention?

A

Where the outcome was D’s main aim or purpose

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8
Q

What is indirect intent?

A
  1. Where the Consequence was virtually certain to occur’ and
  2. Defendant foresaw the consequences as virtually certain
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9
Q

What test do the jury apply when considering whether the defendant foresaw their actions (indirect intent)

A

(a) Test what he himself foresaw not what the reasonable person would have foreseen, but
(b) What reasonable person would have foreseen is good indication

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10
Q

What is the test for recklessness?

A

Whether the defendant foresaw the risk of causing some harm and whether, in the circumstances known to the defendant, it was an unreasonable risk to take.

Social utility and benefit will be considered.

This is a subjective test - must look through D’s eyes

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11
Q

Give an example of an offence by which negligence can lead to criminal liability.

A

Careless and inconsiderate driving.

Negligence is an objective test. The accused will be compared against the standard of the reasonable driver. If you fall below this standard you are guilty and their motive is irrelevant.

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12
Q

What is strict liability?

A

There is no MR - conduct alone will lead to a guilty conviction.

If statute says nothing, the starting point is there is a presumption in favour of mens rea however this presumption can be rebutted.

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13
Q

What is the doctrine of transferred malice?

A

If the Actus Reus is the same as the original action then the AR and MR match up, so defendant is liable.

If the act is different to the one originally intended then malice will not be transferred.

However where the MR of an offence includes recklessness then transferred malice is not required to be considered.

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14
Q

Does the defendant need the MR for the whole of a continuing act.

A

No, D does not need the MR at the start of the act, just at some point of the continuing act.

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15
Q

What is a crime of basic intent?

A

Those committed either intentionally or recklessly

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16
Q

What is a crime of specific intent?

A

One that can only be committed intentionally

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17
Q

What is a crime of ulterior intent?

A

Where an ‘ulterior’ MR needs to also be established. Such as burglary, the burglar must have knowledge or be reckless as to being a trespasser AND have intent to steal or cause GBH.

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18
Q

What is the AR and MR for simple assault?

A

s39 CIA 1988
AR - acts or words causing the victim to apprehend immediate and unlawful personal force
MR - intention or recklessness as to the victim apprehending such force.

Silence can amount to assault.

Must be immediate and person must be present when the words are spoken.

Conditional threats might not be immediate.

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19
Q

What is the AR and MR for battery?

A

AR - infliction of unlawful personal force
MR - intentionally or recklessly applying the force

The force can be applied indirectly by throwing something. Degree of force can be light - even slight touching.

No need to show intent or recklessness as to causing any injury.

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20
Q

What is the AR and MR for an offence under s47 OAPA 1861 (ABH)

A

AR - simple / physical assault causing ABH
MR - intention or reckless as to the assault - there is no need for D to foresee ABH.

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21
Q

What is ABH?

A

Any hurt calculated to interfere with the health or comfort of the victim. Must be more than transient or trifling.

Psychological harm can be ABH if it is a recognised medical condition.

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22
Q

What is the AR and MR for causing GBH under s20 OAPA 1861

A

AR - Wound or inflict GBH a
MR - maliciously - so intent/reckless - Savage/Parmenter only needs to be reckless to some bodily harm ABH not GBH

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23
Q

Define GBH

A

really serious harm’ e.g a fractured skull or severe internal injuries.

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24
Q

Define wound

A

The breaking of both layers of skin resulting in bleeding.

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25
Q

What is the AR and MR for an offence under s18 OAPA 1861?

A

AR - Wound or inflict GBH
MR - intent to cause GBH
Intent to resist or prevent arrest and intention / recklessness as to ABH

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26
Q

Can consent be a defence to assault?

A

The general rule is that consent is not available as a defence to any assault where harm is intended or caused.

However exceptions include
- surgery
- sport
- ear piercing and tattoos.
- horseplay

However the issue of consent is irrelevant when there is a real risk of harm.

Sado- masochism and body modifications are not valid consent.

27
Q

When is consent valid?

A

When it is given freely by an informed and competent adult.

NOT valid when obtained by fraud or identity of D or quality and nature of the act are fraudulent.

28
Q

What is the AR and MR of simple criminal damage?

A

Simple criminal damage s1(1) Criminal Damage Act 1971

AR: Damage or destroy
Property
Belonging to another
MR: Intend or be reckless as to the damage or destruction
Know or to be reckless that property belongs to another

29
Q

What is the AR and MR of aggravated criminal damage?

A

Aggravated criminal damage s1 (2)

AR - destroying or damaging property (property can belong to the defendant or another)

MR - intending or be reckless as to damage or destruction
Intending or being reckless as to endanger the life of another with the
damage/destruction

30
Q

What is defined as property in the context of criminal damage?

A

Property can be tamed animals. Wild plants cannot be damaged but plants in a park can be.

31
Q

What constitutes ‘damage’ for the purpose of criminal damage?

A

Doesn’t need to be extensive, anything which involves the cost of cleaning up. Can be temporary.

32
Q

What is the AR and MR for simple arson?

A

Simple Arson s1(1) and s1(3) Criminal Damage Act

AR - destroy or damage
Property belonging to another
By fire

33
Q

What is the AR and MR for aggravated arson

A

AR - destroy or damage
Property belonging to yourself or another
By fire
MR - Intention or reckless as to damage or destruction by fire
Intention or reckless as to endangerment to life by property damage

34
Q

Under what circumstances could someone rely on lawful excuse as a defence to criminal damage?

A

s5 (2) (a) believed he had consent of person who entitled to give permission
believed he had consent of person he thought was entitled to give permission
believed he would have consent of person entitled to give permission
believed would have consent if person entitled to give permission knew
circumstances

S5 (2) (b) - destroyed property in order to protect property belonging to himself or another that was in need of IMMEDIATE protection and
That means of protection would be reasonable

35
Q

What is the definition of murder?

A

Unlawful killing of a reasonable creature in being under the Queen’s peace with malice aforethought

36
Q

What is the MR of murder?

A

Intention to kill or cause GBH.

Indirect intent will suffice.

37
Q

What are the three types of voluntary manslaughter?

A
  1. Diminished responsibility
  2. loss of control
  3. suicide pact

These are partial defences to murder

38
Q

Who holds the burden of proof for diminished responsibility?

A

The prosecution has to prove the AR and MR of murder are made out.

The defendant holds the legal burden of proof for this partial defence but only on the balance of probabilities’.

39
Q

What needs to be established for the partial defence of diminished responsibility?

A

D had an abnormality of mental functioning

Which arose from a recognised medical condition

Which substantially impaired their ability to understand the nature of their conduct, form rational judgment or exercise self control.

And provides an explanation for their acts and omissions causing the murder.

40
Q

What must be proved for a defendant to rely on the partial defence of Loss of control?

A

The defendant must lose self control.

As a result of a qualifying trigger which causes the defendant to either fear serious violence or have a justifiable sense of being wronged.

A person of the defendant’s sex and age with a normal degree of tolerance in the same circumstances of the defendant must have acted in the way the defendant did.

41
Q

Who holds the burden of proof over the partial defence of loss of control?

A

The defendant can raise the defence. It is then for the prosecution to disprove the evidence supporting the defence beyond all reasonable doubt.

42
Q

Does loss of control need to be sudden?

A

No however considered desire for revenge will not be considered loss of control.
Arming yourself, significant planning or significant delay between the words and the action.

Victim’s of abuse may ‘snap in slow motion’ and there could be a case of ‘the straw that breaks the camel’s back’ - the final comment may not be that severe.

43
Q

What constitutes a qualifying trigger?

A

Two types - fear and anger.

Fear is a fear of serious violence against the defendant. The fear is subjectively assessed.

Anger relates to things said and done. The judge considers this first before allowing the jury to contemplate it. Having a justified sense of being wronged.

44
Q

Can sexual infidelity ever be a qualifying trigger?

A

Historically no.

Sexual infidelity alone will not work however along with other abusive comments, yes.

45
Q

What is the AR and MR for unlawful act manslaughter?

A

AR - do an unlawful act
which is dangerous
and causes the death of another

MR - intent or recklessness as to the assault / unlawful act

46
Q

What is the test for considering whether an unlawful act is dangerous in the context of involuntary manslaughter?

A
  1. Dangerous means the act caries risk of some harm to some person, doesn’t have to be serious harm
  2. Test entirely objective - whether all sober and reasonable people would think the act was reasonable, doesn’t matter if the defendant does
  3. Knowledge given to sober reasonable person is given to them as if they were at the scene.
47
Q

What is the AR and MR for gross negligence manslaughter?

A

NO MR

Criteria set out in Adamako

Defendant must owe a duty of care

Breach this duty

TThe breach must cause death

The defendant must be grossly negligent

48
Q

What is the AR and MR for theft?

A

AR - Appropriation
of property
belonging to another

MR - Dishonesty
Intention to permanently deprive

Theft Act 1968

49
Q

What does ‘appropriation’ mean in the context of theft?

A

Assuming the rights of an owner.

The appropriation can happen at a later date.

There can be multiple appropriations but there will just be one theft.

50
Q

What constitutes ‘property’ in the context of theft?

A

Money

Real property
personal property - land can only be stolen in certain circumstances such as by a tenant who takes something they aren’t supposed to or by a trustee.

things in action (money or bank accounts)

51
Q

What cannot be stolen in the context of property theft?

A

Information - as per Oxford v Moss

Mushrooms, flowers, fruits growing on wild land

wild creatures.

52
Q

Can you steal your own property?

A

If you are the sole person with any proprietary interest in a piece of property, you cannot be guilty of stealing it. However, it is possible to steal property you own if somebody else has possession or control of it or a proprietary right or interest in it at the moment of appropriation

  • R v Turner (No 2) [1971] 1 WLR 901: the Court of Appeal held that: he took the car without paying for the repairs. He was liable for theft of his own car since the car was regarded as belonging to the service station as they were in possession and control of it.
53
Q

Can abandoned property be stolen?

A

No provided it has been genuinely abandoned however the courts are reluctant to treat property as abandoned.

54
Q

What are the circumstances listed in s2 of the TA 1968 in which a person will not be dishonest?

A
  • the person has the right in law to the property
  • the owner would have consented had they known the circumstances
  • the owner cannot be discovered by taking reasonable steps.

The act also states a person may be dishonest even though they were willing to pay.

55
Q

What is the test for dishonesty as per Ivey v Genting?

A

The jury must
(a) ascertain the actual state of the defendant’s knowledge or belief as to the facts (subjective)

(b) determine whether their conduct was honest or dishonest by the standards of ordinary people (objective

56
Q

What would constitute intention to permanently deprive?

A

Treating the property as your own

Borrowing in circumstances making it equivalent to outright taking.

Parting with property under a condition as to its return.

57
Q

Who has the burden of proving the elements of the offence?

A

Prosecution.

58
Q

What is the standard of proof for the prosecution?
Beyond reasonable doubt.

A

Beyond reasonable doubt.

59
Q

What is the evidential burden?

A

Proving a fact in issue with the same evidence.

60
Q

self defence

A

judge requires some evidence to be raised in order to put the issue before the jury, but where there is no actual standard of proof required.

then the prosecution is on notice that to prove that the use of force was lawful, it has to disprove self- defence.

61
Q

What is the rule for the defence of duress?

A

Prosecution must disprove it beyond reasonable doubt.

62
Q

What is the rule for the defence of alibi?

A

Prosecution retains the burden of proof

63
Q

Does the defendant bear an evidential burden?

A

Depends on whether the D is relying on affirmative defence

If D does not - all D needs to do is cause doubt in the minds of jury/magistrates (tactical burden) not evidential burden

IF D is relying on self-defence, intoxication or loss of control - D has evidential burden to put some evidence in support of the defence

evidential burden is not the same as a legal burden - must be some evidence of the defence for it to be considered

If D has evidential burden, prosecution then has legal burden to disprove the accused

64
Q

Simple criminal damage where the value is £5,000 or less

A

Summary only (same with an attempt to)

65
Q

What if the value of criminal damage is unknown?

A

Where the value of the damage is uncertain, ie it is not known whether or not it exceeds £5,000, the defendant is asked if they consent to be tried summarily.

If so, that will take place and the maximum sentence will be limited to three months or a level 4 fine. If the defendant does not consent then the offence(s) will be treated as either-way and the higher sentencing powers will apply on conviction.

66
Q

What about low value shoplifting?

A

where the value does not exceed £200, is now said to be a summary only
offence.

When read fully, however, the statute still allows an adult defendant to elect trial in the Crown Court. You should therefore continue to treat shoplifting as a theft which is an either-way offence.

Note. ‘Shoplifting’ is not an offence in any event. Where a person has allegedly shoplifted, they are properly charged with theft.

In reality the only difference that the supposed reclassification of the offence makes is that a magistrate’s court cannot decline jurisdiction at the mode of trial hearing.

SQE 1 - Criminal Law +Practice (4 decks)

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