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Law > Criminal Liability > Flashcards

Criminal Liability Flashcards

1
Q

What two elements must be proved by the prosecution to show that d is guilty

A

Actus reus and mens rea

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2
Q

Actus reus

A

Physical element of the crime

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3
Q

Mens rea

A

Mental element of the crime

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4
Q

What must ds act/omission be to prove the actus reus

A

Voluntary, if D has no control over his actions then he is not at fault as has not committed the actus reus

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5
Q

In what case did the court hold that the driver of the vehicle could not be driving voluntarily

A

Hill V Baxter

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6
Q

In which situations does hill v Baxter state that driver has no actus reus when losing control of the vehicle as a result of

A

Stung by swarm of bees

Struck on the head by a stone

Had a heart attack while driving

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7
Q

Where can involuntary conduct occur

A

In assaults

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8
Q

Examples of where involuntary conduct occurs in assaults

A

Person A pushes person B causing them to bump into victim- not guilty of assault

D hits V due to a reflex action/muscle spasm- d not in control of his own body? Defence of insanity/automatism

Abscence of fault if there is a threat that D will be killed if he does not commit an assault- defence of duress

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9
Q

What does the prosecution have to show where the actus reus requires a consequence to be proved

A

D conduct factual cause, legal cause and there was no intervening act which broke the chain of causation from Ds conduct to consequence

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10
Q

Factual cause

A

Consequence wouldn’t have happened ‘but for’ Ds conduct

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11
Q

Which case illustrates factual cause

A

Pagett

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12
Q

What happened in pagett (fc)

A

D used his pregnant girlfriend as a shield while he shot at armed policemen

Police fired back and girlfriend was killed

D convicted of manslaughter- she would not have died but for him using her as a shield in the shoot out

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13
Q

Legal cause

A

If Ds conduct is more than a minimal cause of the consequence

Others may contribute to the consequence

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14
Q

Which case illustrates legal causation

A

Benge

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15
Q

What happens in benge (LC)

A

D was a foreman charged with manslaughter where railway tracks were not relaid in time and train crashed as a result- killing people

D argued that although he was negligent the flag man had not gone far enough up the track and train driver not paying attention

D still a legal cause of the deaths as his conduct was more than a minimal cause

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16
Q

What must there be a direct link between in order to prosecute D

A

From Ds conduct to the consequence

Must not be an intervening act which breaks this chain of causation

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17
Q

4 examples that won’t break chain of causation

A
  • Ds conduct causes reasonably foreseeable action by third party
  • medical negligence
  • vs own conduct
  • thin skull rule
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18
Q

Which case illustrates reasonably foreseeable action by third party

A

Pagett

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19
Q

Medical negligence is unlikely to break the chain of causation unless…

A

It is so independent of Ds act and in itself so potent in causing death that Ds acts are insignificant

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20
Q

Which cases illustrate medical negligence

A

Cheshire and Jordon

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21
Q

Cheshire

A

D shot V who died later in hospital due to his windpipe becoming obstructed where surgery had been performed

Doctors negligently failed to spot complications

Although gunshot wounds no longer life threatening at the time of death, D liable for murder

Medical complications were direct consequnece of the shooting and Ds act still a significant cause of Vs death

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22
Q

Jordon

A

D stabbed V, V treated in hospital and was recovering

Doctors gave him antibiotics which he was allergic to twice and he died as a result

Negligence ‘palpable’ and he was recovering, chain of causation broken.

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23
Q

Vs own conduct unlikely to break chain of causation unless…

A

It is so daft that a reasonable person would not have foreseen V reacting in that way

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24
Q

What case illustrates vs own conduct

A

Roberts

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25
Q

Roberts

A

Girl jumpers from car to escape sexual advances of D, car travelling 20-40mph and the girl injured

D held liable for her injuries as her reaction was reasonably foreseeable

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26
Q

Thin skull rule

A

Chain of causation will not be broken if V has something unusual about them which makes them more vulnerable, d must take V as he finds him

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27
Q

Examples of what could make V more vulnerable

A

Inability to swim, certain religious beliefs etc

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28
Q

Which case illustrates thin skull rule

A

Blaue

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29
Q

Blaue

A

D held to have caused the death of a jehovas witness whom he had stabbed

Young woman refused a blood transfusion on religious ground that would have probably saved her life

He had to take victim as he found her

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30
Q

Normal rule of omission

A

Omission cannot make a person guilty of an offence

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31
Q

Under which two pieces of legislation will require d to act

A

Statute/common law- omitting to do so will satisfy the actus reus

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32
Q

Example of a stature that may require d to act

A

Road traffic act requires d to drive with insurance

If without, omission causes him to commit offence

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33
Q

Under which 5 duties can omission make D liable for committing actus reus

A
  • contractual duty
  • duty to act because he has set in motion a chain of events
  • family duty
  • duty to act because he has voluntarily promised to care for V
  • duty to act through official position
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34
Q

Which case demonstrates failure to carry out contractual duty

A

Pittwood:
-railways crossing keeper omitted to shut gates so that a person crossing line was struck and killed by a train

-keeper guilty of manslaughter because his duty to act was arising from his contract of employment

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35
Q

Which case demonstrates Ds duty to act because he has set in motion a chain of events

A

DPP v SANTANA-BERMUDEZ

  • police officer wanted to search Ds pockets
  • asked him whether he had any sharp objects, D said no
  • police officer cut by syringe he had in his pocket

-d liable for ABH because he had a duty to prevent the harm to police officer by warning her about the needle and had failed to do so

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36
Q

Which cause illustrates family duty

A

GIBBINS AND PROCTOR:

  • father deliberately starved his child to death
  • failure to feed his own child was an omission which made him satisfy actus reus of murder
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37
Q

Which case illustrates duty to act because of voluntary promise to care for V

A

Stone and dobinson:

  • stones elderly sister came to live with Ds
  • became ill
  • due to incompetence and forgetfulness, both Ds failed to care for her/summon help when she became helpless and V died
  • both Ds convicted of manslaughter
  • by allowing v to come and live with them they had promised to care for her and then had omitted to do so
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38
Q

Which case illustrates duty to act through official position

A

DYTHAM
-police officer saw violent attack on V but took no steps to intervene or summon help- drove away from scene instead

-officer guilty of neglecting to perform his duty as an officer of justice

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39
Q

What does each offence have

A

It’s own mens rea

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40
Q

What must the prosecution prove that D had to find them guilty

A

The relevant mens rea for the offence charged

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41
Q

Which offences do not require proof of mens rea in respect of at least part of the actus reus

A

Strict liability

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42
Q

Why are there different levels of mens rea

A

The law can identify the degree to which a person is at fault for his or her actions

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43
Q

What must D have in order to be guilty of the offence

A

The minimum level of mens rea required by the definition of the offence

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44
Q

What are the 3 common states of mind find in criminal liability

A
  • direct intent
  • indirect intent
  • recklessness

Direct is most blame worthy

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45
Q

Direct intent

A

D directly intends a Reilly where it is his aim/purpose

D actually desires the result that occurs and sets out to achieve it

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46
Q

Case and example for direct intent

A

Mohan

E.g. D deliberately punches v, directly intends to use unlawful force on v

Motive or reason for throwing punch is not relevant whether she has mens rea or not

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47
Q

Indirect intent

A

Court may find that D indirectly intends a result where that result is not desired, but was virtually certain to occur and D knows this

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48
Q

Case that illustrates indirect intent

A

Woollin
-d lost his cool when his baby started to chrome and threw him in the direction of his oram in a fit of frustration

  • child missed Pram and fatally struck a wall, trial judge misdirected jury on the law
  • house of lords held on appeal that d should be guilty of manslaughter- trial judge should have made it clear that D must know that the undesired result was virtually certain to occur
  • jury may find that D indirectly intended the death
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49
Q

Recklessness

A

D will have acted recklessly where he knows there was a risk of the result happening, but takes the risk

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50
Q

What case illustrates recklessness

A

Cunningham
-d tore a gas meter from the wall in an empty house in order to stall the money in it

  • this causes gas to seep into house next which made V ill
  • d not liable since he did not know there was a risk of gas escaping into Vs house. He had not intended to cause the harm, nor had he taken a risk he knew about it
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51
Q

Transferred malice

A

Where Ds mens rea is directed at one person, but D harms someone else, he can still be guilty.

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52
Q

Where is Ds state of mind transferred in transferred malice

A

To the actual victim, intention/recklessness can be transferred

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53
Q

Which case illustrates transferred malice

A

Latimer

D aimed a blow with an belt at a men in a pub after that man had attacked him

Belt bounced off the man and struck a woman in the face. D convicted of wounding the woman

Intention to harm the man was transferred to the actual victim

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54
Q

Where is the principle of transferred malice not available to make d guilty

A

Where Ds mens rea is for a completely different type of offence

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55
Q

In which case was transferred malice not allowed

A

Pembilton

D threw a stone intending to hit people with whom he’d been fighting

Stone missed them and smashed a pub window

D not liable for the damage to the window as his intention to hit people could not be transferred to property

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56
Q

What must be present at the same time in order for an offence to take place

A

Actus reus and mens rea

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57
Q

When do actus reus and mens rea coincide making D guilty

A

Where there is a continuing act for the actus reus and at some point whilst the act is still going on d has the necessary mens rea

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58
Q

Which case illustrates that a continuing act can make D guilty

A

Fagan v mpc

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59
Q

Fagan v mpc

A
  • d told by a police officer to park his car by the kerb
  • in doing this D drove into officers foot without realising
  • officer asked him to move off but D delayed doing so
  • court held that once D knew the car was on the officers foot he had the required mens rea
  • as actus reus was still continuing the two elements of the crime were present together
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60
Q

What are the two exception where D will still be guilty of an ordence even though AR and MR are not present at the same time

A
  • where actus reus is part of some larger transaction
  • where D has voluntarily become intoxicated and then goes on to commit a crime that can be committed recklessly, his intoxication is not a defence. D seen as reckless in getting intoxicated in the first place so has the mens rea for the later offence
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61
Q

What are the two main exceptions where d will still be guilty of an offence even though the actus reus and mens rea are not present at the same time

A
  • where the actus reus is part of some larger transaction, it will be sufficient that D forms mens rea at some point during that transaction
  • where d has voluntarily become intoxicated and then goes on to commit a crime that can be committed recklessly, his intoxication is not a defence. D seen as reckless in getting intoxicated in first place so has mens rea for later offence
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62
Q

Which case demonstrates exceptions to ar and mr occuring simultaneously (larger transaction)

A

Church

D liable for involuntary manslaughter. AR was part of a larger transaction and D formed mens rea at one point during that transaction

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63
Q

what mens rea will be sufficient to find D guilty of an offence where the actus reus is part of some larger transaction

A

it will be sufficient that D forms the mens rea at some point during that transaction

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64
Q

which case illustrates mens rea being suffiecient to occur at some point during a larger transaction where part is actus reus

A

church

D was liable for involuntary manslaughter. actus reus was part of a larger transaction and D formed mens rea at one point during that transaction

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65
Q

which case illustrates liability for voluntary intoxication

A

DPP v mAJEWSKI

the house of lords upheld his convictions for various assaults, all of which could be committed recklessly (this ignores the principle that actus reus and mens rea must coincide. the decision to drink may be several hours before D commits the actus reus of any offence)

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66
Q

what is the general rule that prosecution must prove in crimes for D to be guilty

A

both actus reus and mens rea

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67
Q

what are the two exception to the rule that prosecution must prove actus reus and mens rea for D to be guilty

A

crimes of strict/absolute liability

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68
Q

what is an offence of strict liability

A

one where the prosecution need not prove mens rea for at least part of the actus reus

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69
Q

how must D have committed the actus reus in strict liabilility

A

voluntarily, but D does not have to be at fault

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70
Q

what can D be liable despite in strict liability

A

despite not having a guilty mind at the time they committed the guilty act

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71
Q

what type of offence does HARROW LONDON BOROUGH COUNCIL V SHAH illustrate

A

strict liability (not having guilty mind at time of committing guilty act)

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72
Q

harrow London borough council v shah

A

Ds liable for selling a lottery ticket to a person under the age of 16 years. the offence did not require MR. the act of selling the ticket to someone who was actually under 16 was enough to make them guilty. even though they had done their best to prevent this happening in their shop. it was more important to try to deal with young people gambling than insist upon proving mens rea

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73
Q

callow v tillstone (strict liability)

A

d convicted of exposing unsound meat for sale even though he was not at fault

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74
Q

who are most strict liability cases created by

A

parliament

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75
Q

what may a statute make clear

A

whether or not a crime is one of strict liability

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76
Q

what case illustrates that where there is uncertainty, the courts will start by presuming that the prosecution must prove mens rea

A

gammon

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77
Q

when will the presumption that the prosecution must prove mens rea be set aside in strict liability uncertainty be set aside

A

where the statute involves an issue of social concern, strict liability will be imposed

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78
Q

in what type of offences will the presumption that the prosecution must prove mens rea be set aside

A

offences which are regulatory in nature as these are not thought of as being truly criminal matters eg food safety and sale of alcohol, prevention of pollution and safe use of vehicles

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79
Q

what is the link between social danger and likelihood of strict liability being imposed

A

the greater the social danger, the more likely strict liability will be imposed

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80
Q

which case illustrates links between greater social danger and likelihood of strict liability being imposed

A

ALPHACELL LTD V WOODWARD

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81
Q

ALPHACELL LTD V WOODWARD

A

there was no evidence that the company had been negligent, but they were strictly liable because it was the utmost public importance that rivers should not be polluted

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82
Q

3 main reasons for having offences of strict liability

A
  • help protect society
  • easier to enforce strict liability offences
  • saves court time
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83
Q

how do strict liability offences help protect society

A

it makes sure businesses are run properly

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84
Q

why is it easier to enforce strict liability offences

A

there is no need for the prosecution to prove mens rea- this would’ve helped secure the conviction of ALPHACELL

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85
Q

why do strict liability offences save court time

A

Ds are more likely to plead guilty so that no trial is required. the fact that d may not be blameworthy can be taken into account when sentencing

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86
Q

what is the main argument against strict liability

A

it makes people who are not blameworthy guilty

even those who have taken all possible care will be found guilty and can be punished

eg. harrow LBC where ds guilty even though theu had done their best to prevent sales of lottery tickets to anyone under the act of 16

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87
Q

what must the prosecution prove where an offence is one of strict liability

A

that D voluntarily committed the actus reus

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88
Q

what happens in strict liability if D acted involuntarily

A

there is no actus reus and D is not guilty

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89
Q

what happens in addition to mens rea not needing to be proved in offences of absolute liability

A

the actus reus can be involuntary

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90
Q

what is the actus reus in absolute liability

A

state of affairs

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91
Q

case demonstrating absolute liability

A

winzar v chief constable of kent

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92
Q

winzar v chief constable of kent

A

the court upheld his conviction of being found drunk on the highway because this was an offence of absolute liability, designed to deal with the nuisance of public drunkenness. it did not matter that D had been taken to the highway against his will

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93
Q

what is an assault

A

D must intentionally/recklessly cause V to apprehend immediate and unlawful force: IRELAND

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94
Q

actus reus of an assault

A

where by an act or words of D causes V to apprehend immediate or unlawful force

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95
Q

what is the rule for actus reus of assault

A

there must be an act or words for an assault, an omission is not enough

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96
Q

in what 3 formats can Ds words be in actus reus for an assault

A

verbal, written or typed

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97
Q

in what case did the court hold that letters could be an assault

A

constanza

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98
Q

in what case was it held that silent phone calls could be an assault- there is no need for any physical contact

A

ireland

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99
Q

what is necessary in the actus reus of assault

A

that V apprehends unlawful force

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100
Q

what does apprehend mean

A

to be aware of something- v does not have to be scared, nor doing he have to be in danger

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101
Q

Logdon V DPP

A

d was convicted of assault, V did not actually have to be in danger

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102
Q

what type of threat by d cannot be an assault

A

a threat by D to inflict harm in the future. there must be an apprehension of immediate force

103
Q

what is sufficient in timing of assault (AR)

A

IF d does something that makes V aware that there would be unlawful force at some unpredictable moment in the near future

104
Q

which case indicates that imminence can mean the same as immediate in assault

A

smith v superintendent of woking police station

105
Q

smith v superintendent of woking police station

A

v was terrified and did not know what D might do next. unlawful force could well have been imminent

106
Q

what can prevent an act from being an assault

A

words indicating that there will be no immediate and unlawful force

107
Q

which case illustrates that words indicating that there will be no immediate and unlawful force can prevent as act from being an assault

A

tuberville v savage

108
Q

tuberville v savage

A

his words ruled out the threat implied by putting his hand to his sword, so there was not assault

109
Q

what is the mens rea of assault

A

intention or recklessness as to causing v to apprehend immediate and unlawful force: VENNA

110
Q

what is a battery

A

d must intentionally or recklessly apply unlawful force to V: Collins v wilcock

111
Q

actus reus of battery

A

where Ds act or omission applies unlawful force to v

112
Q

what can force include in AR of battery

A

the slightest touching but not the ordinary ‘jostling’ of everyday life: COLLINS V WILCOCK

113
Q

why can force include the slightest touching (AR of battery)

A

implied consent is given to all the touching which is inevitable in everyday life- physical restraint is not acceptable

114
Q

where does unlawful force NOT have to be applied in AR of battery

A

to Vs body; touching his/her clothes may be enough, even in V feels nothing

115
Q

which case illustrates that AR of battery doesn’t mean unlawful force to Vs body

A

thomas

116
Q

thomas

A

the court held that touching a persons clothes while she/he was wearing them is equivalent to touching them

117
Q

where are most batteries applied

A

directly to v’s person- usually by striking that person with a fist or some object

118
Q

How else can unlawful force be applied in battery

A

Through an indirect act such as a booby trap. D causes force to be applied even though he does not personally touch V

119
Q

In which case did D satisfy the actus reus of battery by indirectly applying force to the child

A

Haystead

120
Q

How else can a conviction involving indirect application of force be justified

A

By applying the principle of transferred malice

121
Q

When can a battery be committed by omission

A

If D is under a duty to act e.g. DPP V SANTANA BERMUDEZ

122
Q

What may the actus reus of a battery be

A

A continuing act, allowing mens rea to be present at the same time

Fagan v mpc

123
Q

Mens rea of a battery

A

Intention or recklessness as to applying unlawful force to v

VENNA

124
Q

Under what section of what act is it an offence to commit ‘any assault occasioning actual bodily harm’

A

Section 47 of the OFFENCES AGAINST THE PERSON ACT

125
Q

Actus reus of ABH

A

Must be an assault/battery and this must cause ABH

126
Q

What must D satisfy to be convicted of ABH

A

The actus reus of an assault/battery

127
Q

What must the assault/battery have occasioned in ABH

A

It must have occasioned ABH

must be no intervening act which breaks chain of causation from Ds conduct to injury

128
Q

What is ABH

A

Any hurt or injury calculated to interfere with the health/comfort of V: miller

129
Q

What does the word actual mean in ABH

A

The injury should not be so trivial as to be wholly insignificant: CHAN FOOK

130
Q

Mens rea of ABH

A

Mens rea of an assault/the mens rea of a battery

131
Q

What does do not need to satisfy the mens rea of ABH

A

Does not need to intend or be reckless as to whether ABH is caused to V e.g. Savage

132
Q

Savage

A

D satisfied mens rea of ABH because she had the mens rea of a battery

133
Q

What is an offence under a.20 OAPA

A

GBH

maliciously wound

134
Q

Actus reus of s.20 OAPA

A

Requires D to have inflicted GBH on V or to have wounded V

135
Q

There appears to be very little difference between the two words inflict and cause

A

Burstow

136
Q

What does GBH mean

A

Really serious harm: DPP V SMITH

137
Q

Does injury have to be life threatening in GBH

A

No

138
Q

Why was Burstow liable for inflicting GBH

A

Ds conduct causes V to suffer severe depression, insomnia and panic attacks

139
Q

What is necessary to take into account when deciding whether injuries amount to GBH

A

Vs age and health: bollom

140
Q

Which case illustrators that a single minor injury to V, when added to other minor injuries inflicted on V can amount to GBH

A

Brown and Stratton

141
Q

What does wounding require

A

A breaking of the whole skin

142
Q

What must the injury be deep enough to break in wounding

A

The inner skin

143
Q

Which case illustrates that internal bleeding where there is no cut of the skin is insufficient for a wound

A

JCC V EISENHOWER

144
Q

Is a broken bone considered a wound?

A

No unless the skin is broken as well

145
Q

What would a serious wound that caused heavy blood loss be also viewed as a

A

GBH

146
Q

Mens rea for S.20 (GBH AND WOUNDING)

A

Defined by the word maliciously: must be intention/recklessness that V might suffer some harm: MOWATT

147
Q

Is there any need for D to foresee this level of injury in GBH/WOUNDING

A

No even though the actus reus requires a wound or GBH

148
Q

Under what section of what act is malicious wounding/GBH, with intent to cause GBH/resist/prevent arrest

A

S.18 OAPA

149
Q

Actus reus of wounding with intent

A

Any breaking of the skin- JCC V EISENHOWER

150
Q

Actus reus of GBH with intent

A

Really serious harm

151
Q

Mens rea of wounding/GBH with intent

A

Intention to cause GBH

152
Q

Mens rea of resisting/preventing arrest with intention

A

I room to resist/ avoid arrest and recklessness as to GBH

153
Q

Pre trial procedure for all offences: what can the police decide after arresting and charging D

A

To release D from police station on bail or keep them in custody until Ds first court appearance

154
Q

Pre trial procedure for all offences: what will the CPS advise the police on

A

Whether there is enough evidence and if it’s in the public interest for the case to proceed to court

155
Q

Pre trial procedure for summary offences: how may D he summoned to court where he hasn’t been arrested and taken to a police station

A

By post

156
Q

Where are all summary offences dealt with

A

In the magistrates court

157
Q

Pre-trial procedure for all offences: who may D be represented by for the first hearing

A

By a duty solicitor at the court

158
Q

What is a duty solicitor

A

Paid by state to represent D in court at no extra cost to D

159
Q

Pre trial procedure for summary offences: purpose of first hearing

A

For d to enter a plea which could be guilty/not guilty

160
Q

Pre-trial procedure for summary offences: what may occur if a guilty plea is made

A

Sentencing may take place

Immediately or the magistrates may adjourn for pre-sentence reports before they pass sentence

161
Q

Pre trial procedure for summary offences: if a not guilty plea is entered what is likely to be adjourned and why

A

Proceedings are likely to be adjoined for witnesses to be summoned to court and for D to obtain further legal advice

162
Q

Pre-trial procedure for summary offences: if a not guilty plea is made, what must the magistrates decide

A

Whether D should receive legal aid to help fund advice and representation given by a solicitor

163
Q

Pre-trial procedure for summary offences: for a NOT guilty plea, what must it be in the interests of for D to receive public funding

A

In the interests of justice

164
Q

Pre-trial procedure for summary offences: if a not guilty plea is made, what test must D pass

A

A means test

165
Q

Pre-trial procedure for summary offences: what must the magistrates finally decide for a not guilty plea

A

Whether D should be released on bail until the next court hearing or kept in custody

166
Q

What are assault and battery both

A

Summary offences

167
Q

Where will assault and battery cases be tried

A

In the magistrates court

168
Q

Where are all indictable offences transferred after being heard in the magistrates court

A

To the crown court

169
Q

Pre trial procedure for indictable offences:what is the first hearing at the crown court after the case has been sent by the magistrates

A

Plea and case management hearing

170
Q

Pre trial procedure for indictable offences: what is the plea and case management hearing’s purpose

A

To ensure that all the necessary steps have been taken into preparation for trial and sufficient information has been provided for a trial date to be arranged

171
Q

Pre trial procedure for indictable offences: what will D enter at a plea and case management hearing

A

A plea

172
Q

Pre trial procedure for indictable offences: what may happen if D pleads guilty

A

Sentencing may take place immediately or the judge may adjourn for pre sentence reports before he or she pass sentence

173
Q

Pre trial procedure for indictable offences: if D pleads not guilty then what will take place

A

Preparations for trial, including how many witnesses and what exhibits (e.g. Weapons) will be produced at the trail

174
Q

Example of an indictable offence

A

S.18 OAPA 1861

175
Q

Pre trial procedure for indictable offences: what will the jury decide

A

On guilty or innocence

176
Q

Pre trial procedure for indictable offences: what will occur if D is found guilty

A

Judge will pass sentence

177
Q

Examples of either way offences

A

S.47 and s.20 OAPA 1861

178
Q

Pre trial procedure for either-way offences: what procedure is there where D is asked whether he pleads guilty or not guilty to the offence

A

Plea before venue and allocation procedure

179
Q

Pre trial procedure for either-way offences: what happens if d pleads guilty

A

The magistrates must decide whether their sentencing powers are sufficient to sentence D or if the case should be committed to the crown court for sentence

180
Q

Pre trial procedure for either-way offences: what must the magistrates work out if D pleads not guilty

A

The most appropriate court to allocate the case for trial

181
Q

Pre trial procedure for either-way offences: if D pleads not guilty, what will the magistrates hear to help them decide which court to allocate the case to

A

Arguments from the prosecution and defence, together with any relevant previous convictions

182
Q

Pre trial procedure for either-way offences: generally where should either way offences be tried

A

In the magistrates court unless it is likely that the courts sentencing powers will be insufficient

183
Q

Pre trial procedure for either-way offences: what will happen if the magistrates feel the case is not suitable for trial by the magistrates court

A

They will allocate it to the crown court for trial

184
Q

Pre trial procedure for either-way offences: what will happen if the magistrates are prepared to hear the case

A

d is given a choice of trial court

185
Q

Pre trial procedure for either-way offences: what is D given to help them decide where to have trial court

A

An indication of the likely sentence

186
Q

Pre trial procedure for either-way offences: what will happen if D chooses trial in magistrates court

A

There will be an adjournment and the court will have to decide on whether to grant bail or remand D in custody until the trial

187
Q

Pre trial procedure for either-way offences: what will happen if D decides to have their trial in the crown court

A

There will be a plea and case management hearing in the crown court

188
Q

A decision on what has to be made for all types of offence

A

A decision has to be made about whether to release D on bail or remand them in custody

189
Q

Who can bail be granted by

A

The police or the courts

190
Q

Under which act is there a presumption for bail

A

Section 4 of the bail act 1976

191
Q

Why may the court refuse bail

A

If they have substantial grounds that there is a risk that D might

  • abscond and not turn up to the next stage of the case
  • commit a further offence if granted bail
  • interfere with witnesses
192
Q

What 4 things will the court take into account when deciding whether to grant bail

A
  • nature and seriousness of offence
  • Ds character and community ties
  • Ds record in respect of any previous grants of bail
  • strength of the evidence against D
193
Q

Why is the nature and seriousness of the offence taken into account when deciding whether to grant bail

A

If D has been charged with a serious offence like s.20 and s.18 OAPA 1861, he is more likely to abscond because he is likely to be imprisoned if convicted

194
Q

Why is ds character and community ties taken into account when deciding whether to grant bail

A

If D has close links with that area e.g. He lives with his family/has a local job, he is more likely to turn up at court because he does not want to leave the area

195
Q

Why is Ds record in respect of any previous grants of bail taken into account when deciding whether to grant bail

A

The court is unlikely to grant bail if D has absconded on an earlier occasion

196
Q

Why is the strength of the evidence against D taken into account when deciding whether to grant bail

A

If the evidence appears very strong and the crime serious, the chance of bail will be less

197
Q

What two things can bail be

A

Unconditional or the court can attach conditions

198
Q

Examples of conditions attached to bail

A
  • surrender of Ds passport
  • regular reporting at a police station
  • placed on a curfew
  • requirement of a surety
  • residence at a particular address
199
Q

What is a surety

A

Another person promises to pay a specified sum of money if D fails to turn up

200
Q

What offence is D guilty of when he fails to attend court when required to do so without reasonable court

A

Absconding

201
Q

What is an accused person presumed in criminal trials

A

Presumed innocent until proven guilty

202
Q

Who is the burden of proof on at a trial

A

The prosecution

203
Q

How must the prosecution prove a criminal case

A

By showing that D satisfies both the required actus reus and the required mens rea for the offence charged

204
Q

What is the standard of proof necessary for D to be found guilty at their trail?

A

Beyond reasonable doubt

205
Q

Beyond reasonable doubt

A

Magistrates/jury should only convict if they’re sure of Ds guilt

206
Q

What is the most severe form of punishment

A

Custodial sentences

207
Q

What do custodial sentences involve

A

Imprisonment

208
Q

What two things can custodial sentences be

A

Immediate or suspended

209
Q

What is a suspended sentence

A

Not activated unless the offender commits a further offence

210
Q

What is the maximum sentence for s.18 OAPA

A

Life (court can give lesser sentence where appropriate)

211
Q

What is a fixed term prison sentence

A

A term of imprisonment for a set number of months or years

212
Q

What is a suspended prison sentence

A

Not activated unless the offender commits a further offence

213
Q

Community order

A

Created by criminal justice act 2003 to which courts can attach any requirements they think will both punish and reform the offender

214
Q

What requirements can one community order include

A

Unpaid work requirement

Alcohol/drugs treatment requirement

Supervision requirement

Curfew requirement

215
Q

What can financial sentences include

A
  • a fine paid to the state

- a compensation order paid to the victim

216
Q

What are the least serious sentences

A

Discharges

217
Q

When are discharged usually imposed

A

On first time minor offenders in the MC

218
Q

What are the two types of discharge

A

Conditional/absolute

219
Q

Conditional discharge

A

Where if the offender commits a further offence in the stated period, they can be resentenced for the original offence

220
Q

Absolute discharge

A

No real penalty imposed as the offender is technically guilty but morally blameless

221
Q

What two things do judges/magistrates look at when they have to pass sentence

A

Range of sentences available and what they are trying to achieve by the punishment they give

222
Q

Which section of which act sets out the aims of sentencing for those aged 18 and over

A

Section 142 of the criminal justice act

223
Q

What must the court have regard to under in terms of aims of sentencing under the criminal justice act 2003

A
  • punishment of offenders
  • reduction of crime
  • protection of the public
  • reform and rehabilitation of offenders
  • making of reparation by offenders to persons affected by their crimes
224
Q

What is the aim of punishment/retribution

A

The idea that if someone has broken the criminal law, they should be punished

225
Q

What are the two types of deterrence

A

Individual and general

226
Q

Individual deterrence

A

Impose severe sentences for crimes so that offenders are deterred from reoffending for fear of the consequences

227
Q

General deterrence

A

Other people are deterred from offending because they don’t want the same fate as those convicted

228
Q

How is protection of the public achieved

A

The offender is given a sentence that makes them incapable of committing further crime. A long custodial sentence or community order with a curfew requirement are typically used to achieve this aim

229
Q

What does reform/rehabilitation involve

A

Help the alter the offenders behaviour so that he will not reoffend. The sentence should take into account the personal circumstance of the offender and look to his future. Offenders will usually be given a community order with various requirements aimed at rehabilitating them

230
Q

Reparation

A

Where the sentence tries to ensure that the offender makes amends

231
Q

How may reparation be achieved

A

Through a compensation order

232
Q

What factors do courts take into account when sentencing

A
  • max prison sentence allowed by parliament
  • max sentencing powers of the court
  • whether custodial sentence is necessary
  • offenders background and aggravating/mitigating factors
  • aims of sentencing
  • sentencing guidelines
233
Q

What is the maximum prison sentence allowed for assault/battery

A

Six months imprisonment

234
Q

What is the maximum prison sentence allowed for s20/s47

A

Five years imprisonment

235
Q

What is the maximum prison sentence allowed for s.18

A

Life imprisonment

236
Q

What is the maximum sentence a magistrates court can impose for one offence

A

6 months imprisonment (12 months for two)

237
Q

What limits does a judge have on sentencing in crown court

A

None other than the maximum sentence allowed by parliament

238
Q

What type of offence are s47 and s20

A

Either way

239
Q

What can the magistrates court sentence up to if D is found guilty of an either way offence in MC

A

6 months imprisonment

240
Q

What is the maximum sentence the crown court can pass if D is found guilty/pleads guilty of an either way offence

A

5 years imprisonment

241
Q

How often is the maximum period of imprisonment given

A

Rarely as any kind of custodial sentence like that is often inappropriate

242
Q

What does the criminal justice act say iTO passing sentence

A

Court must not pass offence unless the offence is serious enough

243
Q

What must the custodial sentence be in proportion with if a custodial sentence is justified

A

The seriousness of the offence

244
Q

When should an offender convicted of s.18 be given life imprisonment under criminal justice act

A

Only if it is necessary to protect the public from serious harm from the offender

245
Q

What may be referred to when the offenders background and aggravating/mitigating factors are taken into account upon sentencing

A

Pre sentence report drawn up by the probation service or to a medical/psychiatric report if the offender is ill

246
Q

What are aggravating factors

A

Circumstances which allow the court to impose a more severe sentence than it would normally have given

247
Q

3 examples of aggravating factors drawn up in the criminal justice act 2003

A
  • previous convictions for similar offences
  • the fact that the assault was premeditated
  • the offence was committed whilst D was on bail
248
Q

Mitigating factors

A

Circumstances which allow the court to impose a lower sentence than it would normally have given

249
Q

3 examples of mitigating factors

A
  • offender has no previous convictions
  • offender is very young/old
  • offender has mental/physical illness
250
Q

Are aims of sentencing taken into account when sentencing

A

Yes

251
Q

Who are sentencing guidelines issued by

A

The sentencing council

252
Q

What do sentencing guidelines set out

A

The starting point and the range of sentencing options for an offence and the kind of factors the court should consider

253
Q

What may sentencing guidelines suggest

A

A tariff

254
Q

What is a tariff

A

The sentence appropriate for the average example of the offence

Law (39 decks)

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