1. Burden and Standards of Proof, and Elements of Liability

Question 1

Where the defendant wishes to rely on an exception within an element of an offence, or when raising some defences, they will have to prove it. What is the standard to which they must prove?

Answer 1

Balance of probabilities

Question 2

What defences must the prosecution disprove?

Answer 2

Self-defence, and loss of control

Question 3

What are the three elements of actus reus?

Answer 3

1. Conduct (acts or omissions)
2. Circumstances (facts making defendant liable)
3. Result (outcome)

Question 4

What are the two requirements for a failure to act to amount to a criminal offence?

Answer 4

Defendant:

1. Had a duty to act
2. Breached the duty by failure to act sufficiently

Question 5

What are the five situations in which a duty to act will arise?

Answer 5

1. Statute, e.g. to stop at scene of accident
2. Special relationship, e.g. parent-child, doctor-patient
3. Voluntarily assumed duty of care for victim
4. Contract, e.g. railway guard
5. Defendant created dangerous situation and is aware of having done so

Question 6

What are the two stages in the test for causation?

Answer 6

1. Factual causation
2. Legal causation

Question 7

What does factual causation consider?

Answer 7

Whether the result would have occurred but for the defendant’s conduct

Question 8

If there is more than one cause, and defendant’s action slightly accelerates the result, is there sufficient factual causation?

Answer 8

Yes.

Compare with legal causation under which the cause must be substantial.

Question 9

What are the two requirements of a defendant’s action before it will be a legal cause?

Answer 9

It must be:
1. Substantial, i.e. more than minimal, slight, or trifling, and
2. Operative, i.e. actually cause the result and is not negated by a more substantial intervening act or event

Question 10

However, what is the thin skull rule which is somewhat of an exception to the intervening act part of legal causation?

Answer 10

Causation is not negated if the defendant does more damage than expected due to the particular vulnerabilities of the victim, or a victim’s condition worsens because they refuse medical treatment on religious grounds

Question 11

When will medical treatment break the chain of causation?

Answer 11

When the treatment is so bad that the original injury becomes the background

Question 12

What is required for intervention of the following parties to break the chain of causation?

1. Defendant
2. Natural event
3. Victim
4. Third party

Answer 12

1. Defendant: New act
2. Natural event: Unforeseeable
3. Victim: Voluntary, and unforeseeable, i.e. so daft as to be unforeseeable
4. Third party: Free, deliberate, and informed

Question 13

What are the two types of intention?

Answer 13

1. Direct
2. Indirect (oblique)

Question 14

When will a defendant directly intend an outcome?

Answer 14

When the outcome is the defendant’s aim or purpose

Question 15

When will a defendant indirectly intend an outcome?

Answer 15

When the outcome is a virtual certainty of the act, and the defendant realises this

Question 16

What are the only offences indirect intention is available for?

Answer 16

Specific intent offences only (eg. murder, s 18 GBH), not basic intent

Question 17

What is available instead of indirect intent for basic intent offences?

Answer 17

Recklessness

Question 18

What is a specific intent offence?

Answer 18

An offence which can only be committed with intent, not recklessness

Question 19

As an important aside, is attempt a specific or basic intent offence?

Answer 19

Specific intent, even if the offence attempted is a basic intent offence.

This means that you cannot commit attempt recklessly and to sustain a conviction, it must be shown that the defendant had the specific intent to commit the offence they were attempting.

Question 20

What is the doctrine of transferred malice?

Answer 20

If defendant has intent to commit an offence against victim A, but inadvertently commits the offence against victim B, the intent is transferred and the offence is completed in the same way

Question 21

What is the limitation on transferred malice?

Answer 21

The offence must be the exact same.

E.g. the intent to commit a battery whilst throwing a rock at someone’s head would not transfer and sustain a criminal damage charge if the rock actually breaks a window instead.

Question 22

Where a person is guilty of a crime under transferred malice, what other crime will they usually also be guilty of?

Answer 22

Attempt against victim A

Question 23

What is the two step test for recklessness?

Answer 23

1. Defendant foresees any risk from the act, and
2. In the circumstances subjectively known to the defendant, this is an objectively unreasonable risk to take

Question 24

What is the two step test for negligence in criminal law?

Answer 24

Defendant:
1. Owes a duty a care, and
2. Breaches the expected standard of care

Question 25

What is not available in the case of strict liability offences, and why?

Answer 25

Defences that negate state of mind, because state of mind (and mens rea generally) is irrelevant to strict liability

Question 26

Under the identification doctrine, what is required to hold a corporation liable for criminal acts?

Answer 26

Prosecution must identify a controlling mind, whose actions and mental state can be said to be that of the corporation as a whole