Hotlist Flashcards
Murder and Manslaughter
What is the offence of murder?
Common-Law
Committed when a person unlawfully kills another human being under the Queen’s Peace, with MALICE aforethought.
Penalty:
- Over 18 = Life Imprisonment
- 18-21 = Custody for Life
- Under 18 = Detention at Her Majesty’s Pleasure
Murder and Manslaughter
What is the mens rea for murder as an intention?
Murder is a crime of specific intent…
To kill, or
To cause grievous bodily harm.
Murder and Manslaughter
In which situations is consent required before proceedings can be instituted for a ‘fatal offence’?
s2 Law Reform Act 1996
Attorney General…
(a) The injury alleged to have caused the death was sustained more than 3 years before death occurred, or
(b) The person has previously been convicted of an offence committed in circumstances alleged to be connected to the death.
Murder and Manslaughter
What special defences allow for conviction of voluntary manslaughter instead of murder (not attempted murder)?
The accused has the MENS REA for murder, the elements of murder therefore exist (intent to kill/ GBH).
- Diminished responsibility
- Loss of control
- Suicide pact
Can still be sentenced to life imprisonment.
Special defences allow for conviction of voluntary manslaughter instead of murder
Diminished responsibility
s2 Homicide Act 1957
(a) Significant mental abnormality from a medical condition.
(b) Substantial impairment to;
- Understand the nature of the conduct.
- Form a rational judgment
- To exercise self-control
…and therefore provides an explanation for the act
Special defences allow for conviction of voluntary manslaughter instead of murder
Examples of Potential Diminished responsibility
s2 Homicide Act 1957
- Abnormality of mind
- Post-natal/ pre-menstrual symptoms,
- Grief reaction
- Battered wife syndrome
Special defences allow for conviction of voluntary manslaughter instead of murder
Loss of control
s54 Coroners and Justice Act 2009
The loss of control must be attributable to (but not incited or instigated by)…
- Fear of Serious Violence (not in the future)
- Things done or said of grave character justifying a sense of being seriously wronged.
Would a similar person of age, sex, degree of tolerant and self-restraint have reacted in the same or in a similar way? NEED NOT BE SUDDEN
Special defences allow for conviction of voluntary manslaughter instead of murder
Suicide Pact
s4 Homicide Act 1957
Common agreement between two or more persons with a settled intention of all to die.
The burden of proof lies with the accused. He/ she must show that:
- A suicide pact had been made, and
- He/she had the intention of dying at the time the killing took place.
What is the offence of involuntary manslaughter?
Common Law
Unlawful killing of another human being.
Occurs where the defendant causes the death of another but is not shown to have had the required mens rea for murder (intention to kill or GBH) nor involve the special defences as per voluntary manslaughter.
Divided into:
- Kill another by an unlawful act which was likely to cause bodily harm, or
- Kills another by gross negligence.
Penalty:
- Indictment – Life imprisonment
Involuntary manslaughter
What is gross negligence?
Gross negligence is a matter of fact for the jury and means the “lack of slight diligence or care” or “a conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party.
Civil liability is not enough (being responsible for actions and practices that could damage others, but which aren’t criminal).
For example, a duty of care in a care home.
Involuntary manslaughter
What three elements to the offence of manslaughter by an unlawful act must you prove?
- An unlawful act (constitutes a criminal offence in its own right, e.g arson)
- That the unlawful act is likely to cause bodily harm (emotional/ psychological not enough).
- The defendant had the mens rea for the unlawful act which led to the death (cannot rely on voluntary intoxication, e.g drug-induced hallucination).
Involuntary manslaughter
Can the accused rely on his/her lack of mens rea induced by voluntary intoxication?
No - as manslaughter is a crime of basic intent.
For example, accused killed his girlfriend while suffering LSD induced hallucinations that he was at the centre of the earth being attacked by snakes. If the unlawful act were to be a crime of specific intent, then the intoxication should be relevant.
Causing or Allowing a Child or Vulnerable Adult to Die or Suffer Serious Harm
s5 Domestic Violence, Crime and Victims Act 2004
(1) A person (“D”) is guilty of an offence if—
(a) a child (under 16) or vulnerable adult (“V”) dies or suffers serious physical harm as a result of the unlawful act of a person who—
(i) was a member of the same household as V, and
(ii) had frequent contact with him,
(b) D was such a person at the time of that act,
(c) at that time there was a significant risk of serious physical harm being caused to V by the unlawful act of such a person, and
(d) either D was the person whose act caused the death or serious physical harm or—
(i) D was, or ought to have been, aware of the risk mentioned in paragraph (c),
(ii) D failed to take such steps as he could reasonably have been expected to take to protect V from the risk, and
(iii) the act occurred in circumstances of the kind that D foresaw or ought to have foreseen.
Penalty:
Indictment –
- Where the child/ vulnerable adult dies = 14 years imprisonment and/ or a fine.
- Where the child/ vulnerable adult suffers serious physical harm = 10 years imprisonment and/ or a fine.
Cybercrime
Unauthorised Access to Computer Material (‘Hacking’)
s1 Computer Misuse Act 1990
(1) A person is guilty of an offence if—
(a) He causes a computer to perform any function with INTENT to secure access to any program or data held in any computer, or to enable any such access to be secured.
(b) The access he intends to secure or to enable to be secured, is UNAUTHORISED; and
(c) He KNOWS at the time when he causes the computer to perform the function that that is the case.
Penalty:
- Indictment– 2 years and/or fine.
- Summarily– 12 months and/or fine.
Cybercrime
Unauthorised Access to Computer Material (‘Hacking’)
‘Securing access’ to a computer includes…
s17 Computer Misuse Act 1990
- Altering or erasing a program or data
- Copying or moving a program or data to a new storage medium
- Using data or having it displayed or ‘output’ in any form from the computer in which it is held.
Cybercrime
Unauthorised Access to Computers with Intent to Commit Further Offences
s2 Computer Misuse Act 1990
(1) Unauthorised access offence with intent (at the time of the actus reus)—
(a) To commit an offence
(b) To facilitate the commission of such an offence (can be at a later date)…
The further offence can be impossible.
Penalty:
- Indictment– 5 years and/or fine.
- Summarily– 6 months and/or fine.
Cybercrime
Unauthorised Acts with Intent to Impair, or with Recklessness as to Impairing, Operation of Computer, etc.
s3 Computer Misuse Act 1990
(1) A person is guilty of an offence if intentionally or recklesslessly does an act—
(a) To impair the operation of any computer;
(b) To prevent or hinder access to any program or data held in any computer
(c) To impair the operation of any such program or the reliability of any such data;
(d) to enable any of the things mentioned in paragraphs (a) to (c) above to be done.
Examples include programs that generate denial of service attacks, or malicious code such as viruses.
Penalty:
- Indictment– 10 years and/or fine.
- Summarily– 6 months and/or fine.
Cybercrime
Unauthorised Acts Causing or Creating Risk of, Serious Damage
s3ZA Computer Misuse Act 1990
(1) A person is guilty of an offence if—
(a) The person does any unauthorised act in relation to a computer;
(b) At the time of doing the act the person knows that it is unauthorised;
(c) The act causes, or creates a significant risk of, serious damage of a material kind; and
(d) The person intends by doing the act to cause serious damage of a material kind or is reckless as to whether such damage is caused.
(2) Damage is of a “material kind” for the purposes of this section if it is—
(a) Damage to human welfare in any place;
(b) Damage to the environment of any place;
(c) Damage to the economy of any country; or
(d) Damage to the national security of any country.
(3) For the purposes of subsection (2)(a) an act causes damage to human welfare only if it causes—
(a) Loss to human life;
(b) Human illness or injury;
(c) Disruption of a supply of money, food, water, energy or fuel;
(d) Disruption of a system of communication;
(e) Disruption of facilities for transport; or
(f) Disruption of services relating to health.
(4) It is immaterial for the purposes of subsection (2) whether or not an act causing damage—
(a) Does so directly;
(b) Is the only or main cause of the damage.
Penalty:
- Indictment– 14 years and/or fine.
Cybercrime
Making, supplying or obtaining articles for use in offence under s1, 3 or 3ZA
s3A Computer Misuse Act 1990
(1) A person is guilty of an offence if he makes, adapts, supplies or offers to supply any article intending it to be used to commit, or to assist in the commission of, an offence under s1, 3 or 3ZA.
(2) A person is guilty of an offence if he supplies or offers to supply any article believing that it is likely to be used to commit, or to assist in the commission of, an offence under s1, 3 or 3ZA.
(3) A person is guilty of an offence if he obtains any article…
(a) Intending to use it to commit, or to assist in the commission of, an offence under section 1, 3 or 3ZA, or
(b) With a view to it being supplied for use to commit, or to assist in the commission of, an offence under s1, 3 or 3ZA.
Penalty:
- Indictment– 2 years and/or fine.
- Summarily– 6 months and/or fine.
Malicious Communications
Offence
s1 Malicious Communications Act 1988
(1) Any person who sends to another person—
(a) A letter, electronic communication or article of any description which conveys—
(i) A message which is indecent or grossly offensive;
(ii) A threat; or
(iii) Information which is false and known or believed to be false by the sender; or
(b) Any article or electronic communication which is, in whole or part, of an indecent or grossly offensive nature (e.g poo through letterbox or message).
…is guilty of an offence if his purpose is to cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.
Penalty:
- Indictment– 2 years and/or fine.
- Summarily– 6 months and/or fine.
Malicious Communications
Defences
s1 Malicious Communications Act 1988
(2)
1. That the threat was used to reinforce a demand made by him on reasonable grounds and
- That he believed that the use of the threat was a proper means of reinforcing the demand.
- Reasonable grounds existed for believing.
…Relevant test is objective based on 3.
Racially and Religiously Aggravated Offences
The offences that can become racially or religiously aggravated can be grouped in four categories:
Criminal Damage
• s1: ‘Simple’ criminal damage—Criminal Damage Act 1971
Harassment (Protection from Harassment Act 1997)
• s2: Harassment
• s2A: Stalking
• s4: Putting people in fear of violence
• s4A: Stalking involving fear of violence or serious alarm or distress
Assaults
• s20: Wounding or grievous bodily harm—Offences Against the Person Act 1861
• s47: Causing actual bodily harm—Offences Against the Person Act 1861
• s39: Common assault—Criminal Justice Act 1988
Public Order (Public Order Act 1986)
• s4: Causing fear or provocation of violence.
• s4A: Intentional harassment, alarm or distress.
• s5: Non-intentional harassment, alarm or distress.
Racially and Religiously Aggravated Offences
Meaning of racially or religiously aggravated
s28 Crime and Disorder Act 1998
A) at the time of the offence (or immediately before or after doing so), the offender DEMONSTRATES towards the victim of the offence HOSTILITY based on the victim’s membership (or presumed membership) of a racial or religious group,
or
B) the offence is MOTIVATED (wholly or partly) by HOSTILITY towards members of a racial or religious group based on their membership of that group.
Racially and Religiously Aggravated Offences
What is a ‘racial group’?
s28 Crime and Disorder Act 1998
(4) In this section “racial group” means a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins.
“Membership”, in relation to a racial or religious group, includes association with members of that group.
- E.g having a black wife, working with certain religious/ racial groups.
Racially and Religiously Aggravated Offences
Timing necessity
‘At the time of the offence, or immediately before or after doing so.’
Racially and Religiously Aggravated Offences
Victim necessity
The demonstration of hostility must be towards the victim based on the victim’s membership or presumed membership of a racial or religious group.
If the offence is towards a coroporate body it is impossible to discern the vicitm so will must likely be charged under s28(1)(b).
Non-fatal Offences Against the Person
What is Common Assault?
s39 Criminal Justice Act 1988
“any act by which a person intentionally or recklessly CAUSES another person to apprehend (not fear) IMMEDIATE and unlawful personal violence”.
Assault by threat only, e.g:
- E.g I’m going to slap you, or conditional threat (if you do this I’ll___)
Non-fatal Offences Against the Person
On the part of the defendant, the mens rea needed to prove assault is either:
- The intention to cause apprehension of immediate and unlawful violence; or
- Subjective recklessness as to that consequence.
Non-fatal Offences Against the Person
- Can silence amount to an assault?
- Can words negate an assault?
- Yes, provided they are accompanied by the required mens rea.
- Yes– to say a conditional threat “if these officers weren’t here I’d chin you” would be a hypothetical threat that would not amount to assault.
