Week 8 - Evidence Flashcards
State of mind. Criminal conduct. Incomplete offences. Issues in evidence. Offences agains the administration of justice and public interest.
1
Q
What is specific and basic intent
A
Crimes of specific intent:
only committed when defendant is shown to have had a particular intention to bring about a specific consequence at the time of the criminal act.
Other criminal offences require nothing other than the basic intention to bring about the given circumstances (i.e burglary 91b only requires proof that person entered the building and then went on to commit prohibited act)
2
Q
Murder.. Specific or basic intent?
A
Specific
3
Q
Burglary 91a.. specific or basic?
A
Specific (entering with intent)
4
Q
Burglary 91b.. specific or basic
A
Basic (did not enter with intent to cause prohibited act, that was decided once alreadg inside)
5
Q
Common feature of crimes with specific intent?
A
Intention. Without that intent the offence does not exist.
6
Q
What is intent?
A
If a defendant intends something to happen, he wishes to bring about a certain consequence
(I.e entering a house intending to steal)
7
Q
What if person did not intend certain consequences??
Concept of foresight…
S8 criminal justice act 1967
A
S8 Crim just act 1967 says that a court/jury when determining wether a person has committed an offence…
1) shall not be bound in law to infer he intended or foresaw a result of his actions only because the consequences were probable
But they shall decide if he intended/foresaw the consequence by looking at the evidence and drawing inferences from it
8
Q
Foresight of the probability of a consequence does not….
A
Mean there was an intention to bring about that consequence (but may be evidence of it).
The jury considers:
- at the time of the criminal act was there a probability of a consequence
- the greater the probability , the more likely it is that the defendant foresaw that consequence
- if the defendant foresaw that consequence, the more likely it is that the defendant intended it to happen
9
Q
Foresight.
You cannot claim that a person intended a consequence of a persons behaviour just because it was virtually certain to occur
A
Evidence of the defendants foresight of the probability of a consequence is put to the court, who may draw an inference from it…
I.e…
If at the time of the act there was a consequence…
- The greater the probability of the consequence the more likely the defendant foresaw it
- and if the defendant saw the consequence then the more likely it is they intended it to happen
10
Q
Recklessness
A
Is subjective.
Subjective recklessness is satisfied where the defendant foresees the consequences as being probable or even possible.
The fact the consequences ‘ought ‘ to have been foreseen is not enough.
11
Q
Malice
Particularly relevant to which offences?
A
S18 S20 S23 S24 Offences agains persons act
12
Q
Malice. Requires what?
A
Either
The actual Intention to cause the relevant harm
Or
At least foresight of the risk of causing ‘some’ (not full extent) of the harm
I.e…. X throws a coin at Y intending to cause small cut to Y. The coin hits Y’s eye and Y loses his sight.
X has commited GBH as he has behaved maliciously - he saw ‘some’ risk of harm and took the risk anyway
13
Q
Wilfully
Mentioned in offences such as child cruelty
A
Taken to mean intentionally or recklessly (recklessly being subjective)
Wilful is not to be understood literally as being deliberate or voluntary
14
Q
Dishonestly
A
Identify the state of mind required
And the ways that can be proved/disproved
15
Q
Knowing
Relevant to several offences such as handling stolen goods
A
One knows something if they are absolutely sure that it is so.
As it is difficult to absolutely be sure of anything it is accepted that a person who feels virtually certain about something can be regarded as knowing it.
16
Q
Belief
The difference between belief and knowing
A
Same degree of certainty however
Knowing something implies correctness of belief..
Whereas a belief could turn out to be mistaken
(In handling stolen goods cases it has been stressed there is a need to distinguish belief from recklessness or suspicion, as it is not sufficient that an accused believed it to be probable that goods were stolen)
17
Q
Negligence
A
Generally concerned with the defendants compliance with the standards of reasonableness of ordinary people.
Negligence focuses on the consequences of defendants conduct rather than proving his state of mind.
Most important common law offence that can be committed by negligence is manslaughter (by gross negligence).
18
Q
Strict liability
A
Generally means that there is Little to prove beyond the act itself. (I.e. no need to prove mens rea- eg: in offence of drink driving)
19
Q
Transferred mens rea
A
The state of mind for an offence can be transferred from one victim to another.
ONLY IF THE CRIME REMAINS THE SAME
20
Q
Transferred mens rea in relation to the liability of an accessory to a crime
A
If the intentions were contemplated and accepted by the accessory then the accessory is liable. Even if the mens rea was transferred to another victim inadvertently.
Eg… if in an assault where X and Y agree that X will assault Z…
X then decides to assault a different person then Y not liable as they didn’t agree to that.
But if X assaults Z and in doing so X injures a third party inadvertently then transferred mens rea may mean that Y is also liable.
21
Q
Wyen considering criminal liability
What is the ‘but for’ test??
A
But for X’s actions, would Y have happened?
22
Q
Actus reas. Criminal conduct.
To be found guilty of an offence you must show that he / she:
A
- Acted in a particular way
- Failed to act in a particular way (omissions)
Or - Brought about a state of affairs
This is the actus reas of an offence (the behavioural element)
To prove the required actus reas you must show
- The the defendants conduct was voluntary and
- That it has occurred while the defendant still had the requisite mens rea (state of mind)
23
Q
Voluntary act
A
I.e if pushed into a window and it breaks, the person cannot be said to be guilty of criminal damage even though they were the immediate cause.
The person being pushed was not acting of their own free will and therefore could not perform the actus reas (criminal conduct)
24
Q
Ommissions
Criminal conduct most often associated with actions , but occasionally liability is brought about by a failure to act - mostly where a DUTY to act has been created… the main circumstances being…
A
D - dangerous situation created by defendant.
U - under statute, contract or persons public
office.. eg:
- Statute - driver who fails to stop of scene of
accident
- Contract - crossing keeper omitted to close
the gates at a level crossing
- Public office - police officer failed to
intervene to prevent an assault
T - taken it upon himself to carry out a duty and then fails to do so (i.e acepted duty to care for someone and then they die of neglect)
Y - young person - where defendant is parent of young person (obligation exists for parent to look after health and welfare of child and they dont)
25
Actus reas...
Omission where a duty to act has been created.
Must also show that the defendant has voluntarily ommitted to act as required or not done enough to discharge their duty...
Unless...
Someone else has stopped them from discharging their duty
Or
They are incapable of doing more because of their own personal limitations (i e inability to swim)
26
Causal link?
You must prove the consequences would not have happened 'but for' the defendants act or omission
27
Intervening act??
The causal link (but for) can be broken by an intervening act provided the new act is free, deliberate and informed.
However the basic rule is that an intervening act will not generaly break the causal link
28
Defendants must take their victims as they find them
So if a victim has a very thin skull or some illness which makes the consequences of the act against them more acute, this is the defendants bad luck. These things will not break the causal link.
29
Victims actions can sometimes be significant in the causal link/chain...
I.e
If a victim is injured when jumping from a car to get away from their assailant ... their behaviour will not necessarily be seen as a new and intervening act as the victims actions can be seen as reasonably anticipated from any victim in such a situation... therefore the defendant will be responsible for the outcome.
However if the victims actions are done entirely of their own violition , or their actions are daft, then this will amount to a new and intervening act and the defendant cannot be held responsible for them.
30
A principle or an accessory to criminal liability
Principle - offender whose conduct has met all the requirements of the particular offence
Accessory - someone who helped or brought about the commision of the offence.
If an accessory aids/abets/counsel's or procures the commission of an offence he/she will be treated by a court in the same way as a principle offender (under the accessories and abettors act 1861 for indictable offences , or the magistrates court act 1980 for a summary offence)
31
Aid, abet, counsel, procure meaning
These are not seperated out into seperate elements when charging a defendant, They are looked at in theie entirety
Aid -giving help, support, assistance
Abet - inciting, investigating or encouraging
Counsel - advise or instruct
Procure - bringing about
32
If accessory is present at acene of crime when committed... their presence amounts to to..
Their presence amounts to encouragement
Which supports a charge of aiding or abetting if they were there are part of an agreement re the principle offence.
(Not the case if they were just walking by)
33
What if accessory not present at scene when crime is commited?
Necessary to prove intentional assistance.. by proving:
An act done by the accessory which assisted the later commission of the offence
That the accessory did the act deliberately realising it was capable of assisting the offence
That they contemplated the commision of the offence by the principle offender
And that when doing the act they intented to assist the principle offender
34
Vicarious liability??
General principle is that liability is personal however there are occasions where liability can be transmitted vicaiously to another....
I.e where statutory duty is breached by an employee, or where a duty is placed into an individual (such as a licensee) who then delegates some of their functions to another.
35
Incomplete offences
Ones where defendants are interrupted or frustrated in their effort to commit an offence...
Incomplete offences cannot be mixed and most cannot be attempted (i.e you cannot conspire to aid and abet and you cannot attempt to conspire)
36
Legislation around encouraging or assisting crime
Serious crime act 2007
S44 - Intentionally encouraging or assisting an offence
S45 - encouraging or assisting an offence believing it will be commited
S46 - Encouraging or assisting offences believing one or more will be committed
ALL TRIABLE ON INDICTMENT AND ALL LIABLE TO SAME PENALTY AS PER OFFENCE THEY ARE ENCOURAGING OR ASSISTING
37
S47 serious crime act 2007?
Sets out what must be proved in order to establish guilt for S44/45/46
In respect of each offence D must merely do an act which is capable of encouraging or assisting the commission of an offence.
38
S49 serious crime act 2007
Stares that offences can be committed regardless of wether or not the encouragement or assistance has the effect that was intended or beleived it would have.
39
An act of encouraging or assisting the commission of an offence may take a number if different forms such as...
A course of conduct
Failure to discharge a duty
Threatening another person or
Putting pressure on another to commit the offence
40
Can a person be convicted of more than one of the offences of S44/45/46 serious crime act (encouraging/assisting in commision of offence) in relation to the same act?
Yes
41
What is a defence to s44/45/46 serious crime act?
| Encouraging/assisting in commission of offence
S50 sets out that it will be a defence if the person acted reasonably
(that in the circumstances they were aware of, or reasonably believed existed, it was reasonable to act as they did)
42
S51 serious crime act says a person cannot be guilty of s44/45/46 if it is in relation to a protective offence where the person who does the act is the person that the offence was designed to protect... example?
A 12yr old child encouraging an adult to have sex with her. The child cannot be liable for encouraging rape as she is considered the victim of the actual offence
43
Does S44/45/46 serious crime act apply to corporate manslaughter?
No
44
Conspiracy
2 types...??
Statutory
Common law
45
Statutory conspiracy
Legislation ?
Triable?
When is this offence committed?
S1 criminal law act 1977...
If a person agrees with any other person that a course of conduct will be pursued which will either:
A) amount to or involve the commission of any offence(s) by one or more of the parties or
B) would do so but for the existence of facts which render the commission of the offence impossible
He is guilty of consipracy to commit the offence(s) in question
Triable on indictment (regardless of if the offence consipred to commit is summary or indictable)
Offence is committed at the time of the agreement, it is immaterial whether or not the substantive offence is ever carried out
46
What must there be for a Conspiracy?
An agreement - A meeting of minds. Therefore at least 2 people involved.
Person A cannot be guilty of consipracy with person B if B intends to thwart or sabotage it (as there would not be a meeting of minds i.e an agreement to carry out the offence)
47
Each conspirator must be aware of the overall common purpose.
If one enters into seperate agreements with different people then each agreement is a seperate consipracy.
.
48
Can a person be convicted of consipracy even if the actual identity of the other person is unknown?
Yes.
49
When can a defendant NOT be convicted of consipracy?
If the ONLY other party to the agreement is:
- Their spouse/civil partner (a civil partner is a same sex partnership registered under the civil partnership act 2004)
- A person under 10 yrs old
- The intended victim (crim.law act 1977. s2)
50
Can a company be party to a Conspiracy?
Yes.
But not if the only 'parties ' are the company and a director, as there would be no meeting of minds.
51
Who must carry out the offence in a consipracy?
One or more of the parties to the agreement.
Once agreed upon, any failure to bring about th3 end result or abandoning the agreement altogether will not prevent the statutory conspiracy being committed.
52
For a true consipracy, all parties must intend to go through with r their agreemrnt
If an under cover copper is one of the parties, with no intention of going through with the agreement then the offence of encouraging or assisting an offender may be more appropriate
53
Common law consipracy
Conspiracy to defraud.
An agreement by 2 or more persons by dishonesty to deprive a person of something which is his or to which he would be entitled,
Or
An agreement by 2 or more by dishonesty to injure some proprietary right of the victim (no requirement to prove an end result would comission an offence, only that it would result in depriving a person of something injuring his proprietary right)
10 yrs prison and/or fine.
You MUST show INTENT to defraud a victim
You MUST show a defendant was dishonest
54
Examples of common law consipracy to defraud ...
Bufet car staff selling own homemade sandwiches on trains therebg depriving the company of the opportunity to sell their own products
Directors concealing details of banks trading losses from its shareholders
Making unauthorised copies of films for sale
Marketing devices to falsify gas/elec meters enabling customers to defraud their gas/elec suppliers
55
S1, Criminal attempts act 1981
S2
S1 - if with intent to commit an offence, a person does an act which is more than merely preparatory to the commission of an offence , he is guilty of attempting to commit the offence
S2 - states that a person may still be guilty of attempt even if the facts are such that the commission of the offence is impossible
56
What kind of offences are excluded from the attempts act...
Conspiracy (statutory and common law)
Aiding, abetting, counselling or procuring
An offence under s2 (1) suicide act (assisting suicide)
Offences under s4(1) (assisting offenders) criminal law act 1967
57
Attempt offences are triable by same means (indictable or summary) as per the offence attempted.
Can a summary only offence be attempted??
No.
Not unless the only reason it is summary only is because of a statutory limit imposed on the offence... i.e low value shop theft/ crim dmg to low value property... in these cases the offences can be attempted.
58
Attempts...
| An act which is more than merely preparatory
An attempt requires an act (an ommission to act would not create liability for an Attempt)
Actions must be shown to have gone beyond mere preparation towards commission of the substantive offence.
Courts accept questioning if the defendant has embarked on the crime proper, but there is no requirement to have passed a point of no return leading to the commission of the substantive offence.
59
Mens rea for attempt
To prove an Attempt you must show an intention on the part of the defendant to commit the substantive offence.
A higher level/ degree of mens rea may be required to prove an attempt.
I.e the mens rea for murder is the intention to kill or cause GBH. Whereas the intention for attempted murder is nothing less than but the intent to kill.
60
Attempted rape... recklessness
In cases if attempted rape, courts have accepted that recklessness as to whether the victim was consenting is sufficient mens rea, because it is sufficient for the substantive offence (r v khan)
61
General defences.
| Automatism
It is where there is an absence of actus rea... criminal conduct.. i.e criminal conduct needs to be willed or and voluntary, automatism is where a person may have total loss of control over their actions... e.g a swarm of bees flew in a car and caused the driver to have a reflex action which caused an accident. The drivers actions were involuntary and not sufficient to support a criminal charge.
Or sneezing/cramping causing a firearm to be discharged as a result of the sudden involuntary movement
62
General defences.
| Intoxication.... voluntary and involuntary
No general defence of intoxication. But it potentially removes the mens rea required for committing an offence
Voluntary- got self intoxicated.
Involuntarily- you are not responsible for getting in that condition... i.e spiked
63
Gen. Defences.
Voluntary and involuntary intoxication and specific / basic intent
Voluntary intoxication can be raised as a defence for an offence of specific intent only.
Involuntary intoxication can be raised for both basic and specific .
Specific intent (i.e murder /crim dmg)... voluntary intoxication at time of offence may be able to show they were incapable of forming the mens rea required.
Basic intent... voluntary intoxication is NOT a defence as courts decided a person still capable of forming basic intent when inebriated (dpp v majewski)
Basic intent (i.e s46 assault)... defendants who were INvoluntary intoxicated at time may be able to say they lacked the mens rea for the basic intent offence
64
If defendants mis judge the amount/strength of intoxicants... is this involuntary intoxication?
No.
65
If defendants can be shown to have formed the necessary mens rea then intoxication (voluntary or involuntary) is not available as a defence.
Drunken intent is still intent.
| R v kingston
66
General defences.
Intoxication and mistaken belief.
When can / can't it be raised thay the intoxicated peraon had formed a mistaken belief ?
Can be raised as mistaken belief... Crim dmg. If dmg property thought was their when drunk.
Can'r be raised... murder, rape, manslaughter
67
If defendant becimes intoxicated to gain courage to commit a crime.. can intoxication be used as a defence?
No. Even if one of specific intent. Because they have formed the intent before getting intoxicated and just got intoxicated for Dutch courage to carry it out.
68
General defences
Insanity.
Burden of proof?
Rests with the defence
In law there is a presumption that all people are sane.
69
General defences
Insanity.
What are the m'naughton rules?
To establish defence on grounds of insanity it must be clearly proved that at the time of commiting the act the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing,
Or if he did know it, that he did not know he was doing what was wrong .
The question if whether a condition amounts to a disease of the mind is a question of law and NOT medical opinion (r v Sullivan)
70
What illnesses are deemed to be similar to insanity in respect of their potential defence to a criminal charge? (And therefore the m'naughtom rule should be applied?)
Hypoglyceamic episode in a diabetic
| An epileptic fit.
71
Under what act is a special verdict of 'not guilty by reason of insanity ' provided?
Trial of lunatics act 1883.
A special verdict can be returned under the criminal procedure (insanity) act 1965... under this act a range of orders are available (i.e hosptial order, supervision order, even absolute discharge)
72
S44 serious crime act 2007 - Intentionally ncouraging or assisting an offence
A person commits an offence if
A) he does an act capable of encouraging or assisting in the commission of an offence and
B) he intends to encourage or assist its commision
But he is not to be taken to have intended this merely because such encouragement or assistance was a foreseeable consequence of his act
73
S45 serious crime act 2007 - encouraging or assisting an offence believing it will be committed
A person commits an offence if
A) he does an act capable of encouraging or assisting in commision of an offence and
B) he believes that
i) the offence will be committed and
ii) his act will encourage/assist its commission
74
S46 serious crime act 2007- encouraging or assisting offences believing one or more will be committed
A person commits an offence if
A) he does an act capable of encouraging/ assisting the commission of one or more of a number of offences and
B) believes that
i) one or more will be committed (but no belief as to which one) and
ii) his act will encourage/ assist the commission of one or more of them
It is immaterial whether a person has any belief as to which offence will be encouraged/assisted
75
Gen. Defences
| Inadvertence or mistake
Only an effective defence if the defendant negates the mens rea for that offence.
I.e theft - if wandered out with item without paying- need to negate any mens rea of dishonesty.
It doesn't matter if the mistake was reasonable, the appropriate test is whether the defendants mistaken belief was an honest and genuine one
76
General defences.
A defence of mistake has to involve a mjstake of fact, not a mistake of law..
I.e people under arrest are not entitled to inform a view on the lawfullness of the arrest, they have a duty to comply with police and hear the charge against them
(Therefore it is not defence to resist arrest based on believing you are innocent !)
77
Gen. Defences
Duress
Where a peraon is threatened with death or serious harm unless they carry out a criminal act, then they may have a defence of duress.
R v graham.
Threat of serious harm/injury does not include psychological injury. R v baker.
Where intent in relevant to the offence, it has to be shown that any intent was only formed by reason of that duress
78
Gen defences
Duress.... key elements
Threat must have driven defendant to commit the offence
Defendant must have acted as a sober and reasonable person of same characteristics would
Threatened death/injury must be anticipated at or near the time of the offence (not sometime in distant future)
79
Gen defences
When duress is not a defence
When defendant failed to take advantage of opportunity to neutralise the effects of the threat (perhaps by escaping from it)
(I.e not gone to police when had opportunity)
If person knowingly exposes self to risk of threat then cannot claim duress as a defence (i.e person joins a violent gang or active terrorist organisation)
80
Gen defences
| Marital coercion
Mau be raised where a WIFE maintains she commited an offence in the presence and ubder coercion of her husband
Apart from in treason or murder
No need for threats of death/serious injury. It is enough that the wife acted because of the dominating influence of husband .. she was forced unwillingly to participate.
81
Gen defences.
| Duress of circumstances
No alternative but to commit offence due to circumstances....
I.e wife says gonna commit suicide if husband doesn't drive son to work. Husband is disqual driver but drives son to work so wife doesnt commit suicide (she had attempted suicide previously.
With duress of circumstances there is a threatening situation or set of circumstances the defendant wishes to escape, and in doing so feels impelled to commit offence as the lesser of 2 evils
The threat is situational ... if i dont do this then the consequence will be death or serious injury
82
Gen defences
Duress
What 2 questions may a jury ask in relation to the defendant
Were they impelled to act as they did because, as a result of what he reasonably beleived, he had good cause to fear he would suffer death/injury if he didnt do so
If so, would a sober person of reaosnable firmess and sharing the same characteristics have responded to the situation in the same way?
If yes to both then the defence is made out.
R v cairns
Only need an honest beleif, without reasonable grounds . No need for threat to be real.
Defendants actions must however be reasonable and proportionate to the threat presented
83
Gen defences.
Self defence of self , others, property
Human rights act
Article 2- right to life
Everyone's right to life protected by law.
Deprivation of life shall not be regarded as inflicted in contravention of article 2 when it results from use of force, which is no more than absolutely necessary, in defence of any person from violence, to effect arrest or prevent escape of someone lawfully detained or in quelling a riot or insurrection
84
Gen defences.
Householder case
Proportionate force
S43 crime and courts act 2013..
Use of disproportionate force can be regarded as reasonable in the circumstances as the accused beleived them to be when householder acting to protect self, or others from trespassers in their home (self defence)
The use of Grossly disproportionate force is not permitted.
85
Gen defences.
| S3 crim law act 1967
A person may use such force as reasonable in the circumstances in the prevention of crime, or in effecting and assisting in lawful arrest of offenders or suspected offenders, or of persons unlawfully at large
86
Gen defences...
Infancy
Age of criminal responsibility? And act
10
S50 children and young person's act 1933
87
Issues in evidence.
Burden of proof
If a legal rule.requires a fact (an issue) to be proven then a judge/jury must decide whether it happened.
The fact in issue falls into 2 categories...
- Prosecution bear the burden of proving/disproving in order to establish the defendants guilt
- The facts which, in exceptionally circs, the defence need to prove to show the defendant is not guilty
88
Issues in evidence.
Burden of.proof.
Examples of where defence carries the evidential burden in relation to specific defences they intend to rely on...
Defences relating to alibis, self defence, accident and provocation
89
Can you attempt (in crim attempts act) to consipire/counsel or procure the commision of an offence
No.
These are exceptions to the criminal attempts act
90
Transferred mens rea.
If go to hit A abd B gets hit instead. What are tou liable for?
Attempt assault on A and actual assault on B
91
State of mind...
Negligence...is concerned with what?
Negligence is concerned with the defendants compliance with the standards of reaosonableness of ordinary people
92
Crimes of Specific intent are only committed where..
The defendant is shown to have had a PARTICULAR INTENTION to bring about a SPECIFIC CONSEQUENCE at the time of the act
Murder ia such a crime
As is burglary with intent
93
The word INTENT is NOT defined by any statute
Intent means different things for different offences
Whether a defendant intends a particular consequence will be a question of fact left to the jury or magistrate
94
There have been some instances where the courts have held that an offence does not require any mens rea to be proved
.
95
Mens rea... subjective recklessness
In cases involving subjective recklessness it is the state of mind of the defendant which is important (and not what they ought to have foreseen)
96
Incorporated companies
| corporate liability
There are occasions where courts will accept that the knowledge of certain employees will be extended to the company
Companies HAVE been prosecuted for;
- offences of strict liability
- For offences involving mens rea
- As accessories
97
When proving actus reas (criminal conduct) you must show what?
That the defendant's conduct was voluntary and it occurred while the defendant had the required mens rea (state of mind
98
Accessory
The state of mind that an accessory must possess is What?
.Accessory
The state of mind that an accessory must possess is proof of intention to aid the offence as well as knowledge of the circumstances
(Recklessness and negligence are not enough)
99
'Special defences' are available when?
Only available in answer to a charge of murder
100
If an accessory aids, abets, counsel's or procures an offence then they will be treated ny a court in the same way as a principal offender for an INDICTABLE offence.
.
101
When trying to show a defendant has procured an offence you must show what?
Must show a causal link between their conduct.and the offence
102
Generally speaking, aiding or abetting an offence will usually involve What?
Will usually involve the presence of the accessory at the scene of the offence
103
S1 (2) criminal attempts act 1981
A person may be guilty of attempting to commit an offence to which this section applies even though the facts are such that the commission of the offence is impossible.
104
Conspiracy to defraud (common law)
| Can take 2 forms?
1) involves deceiving another into acting in a way that is contrary to their duty
Or
2) an agreement by 2 or more persons by dishonesty, to deprive a person of something which is his or would or might be entitled, or an agreement by 2 or more by dishonesty to injure some proprietary right of the victim
105
In proving a conspiracy to defraud you must prove that the defendant was dishonest.. as per what??
As per the test laid out in R v Gosh 1982.
| Not as per the theft act!
106
There may be circumstances where the defendants behaviour will amount to both consipracy to defraud and statutory consipracy.
So which charge do you go with?
The criminal justice act 1987 s12 makes provisions for such circumstances and allows the prosecution to choose which charge to prefer
107
What act amends S76 criminal justice and immigration act 2008 in relation to use of force? And How?
S43 crime and courts act 2013
Amends s76.crim just and imm act so that the use of DISPROPORTIONATE force can be regarded as reasonable in the circumstances as the accused BELIEVED them to be when householders are acting to protect themselves or others from trespassers in their homes (self defence)
108
Article 2 HRights states what in regards to a lethal use of force ?
Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more then absolutely necessary:-
A) in defence of any person from unlawful violence
B) in order to effect a lawful arrest or prevent the escape of a person lawfully detained
C) in action lawfully taken for the purpose of quelling a riot or insurrection
(Defending property is not included in the circumstances where property alone is being protected)
109
Defence of duress is not available when?
In respect of an offence of murder (r v howe) or attempted murder (r v gotts).. as a principle or secondary offender
110
'Facts in issue' will always include what?
Actus reas
Mens rea
Identity if the defendant will be a fact in issue where relevant (so not always)
111
The standard of proof for the defence is what?
On the balance of probabilities
112
When may the evidential burden shift to the defence?
A.variety of situations: statute (eg diminished responsibility) or common law (defence of insanity)
113
In deciding whether evidence should be admitted in court , a.judge can consider what.with regards to fairness?
Whether it is fair to allow the evidence
| Not whether it was obtained fairly or not!
114
Perverting the course of justice by Making a false allegation...
Allegations made whereby it is incapable of identifying specific individuals is immaterial when the defendant intends that the allegation be taken seriously.
Making a false allegation of an offence means that person has committed the offence of perverting the course of justice
There is no requirement to show that a great deal of police time and resources were expended on the investigation (this is only associated with giving false details to police on arrest)
115
What is the maximum sentence for someone who has assisted an offender?
Half of the original offences maximum sentence
116
Witness protection is available to jurors where their safey is at risk by virtue of being a juror.
What act covers this?
The serious and organised crime and police act 2005.... sets our witness protections arrangements and extends to people involved in the criminal justice process (including people who are or have been jurors).
117
Who has to give consent for an offence of assisting an offender under S4 criminal law act 1967?
Cosent of the DPP is required before a prosecution is brought
(Director of public prosection)
118
For an offence of assisting an offender , a person must KNOW or BELIEVE the assisted person to be guilty of the offence .
Suspicion (however strong) that the person commuted the offence is not enough
119
Intimidating witnesses or jurors contrary to S51 criminal justice and public order act 1994 deals with what?
Intimidatory acts by the offender towards the victim when the offender knows or believes the victim is assisting in the investigation of an offence or is a witness or potential witness or a juror or potential juror in proceedings for an offence
The threat can be made otherwise than in the presence of the victim or to a person other than the victim
The harm can be towards a persons property
120
A person detained under s136 MHA CAN commit the offence of escaping lawful custody
People detained under the mental health act are in lawful custody
121
Escaping lawful custody.
Common law.
Triable on indictment only.
Unlimited punishment.
Offence applies to both police custody or custody following conviction
122
Offence of concealing relevant offences
S5 criminal law act 1967
Who musy give permission to prosecute?
DPP.
123
Chain of causation ...
Negligent medical treatment...
Negligent medical treatment will NOT normally be regarded as an intervening act that will break the chain of causation
124
Mnemonic for remembering exceptions to statutory consipracy
HAT
H - His/her spouse (or civil partner)
A - A person under 10yrs old
T - The intended victim
