Criminal - actus, mens, homicide Flashcards
(127 cards)
1
Q
What was the basis of the misdirection in Evans (Gemma) 2009?
A
Judge to decide on duty as a q of law. Jury should decide if that duty arose on the facts.
Misdirection with regards to these principles, but the conviction was still ok. Upheld.
2
Q
In which recent case was it questioned whether a murder charge should be removed from a jury due to uncontradicted evidence of an abnormality of mental functioning?
A
Brennan 2014
The judge needs to ask whether the jury could rally convict if properly directed. Look at the evidence.
3
Q
Case for battered woman syndrome?
A
Ahluwalia
4
Q
S.54 (1) (c) - someone of D’s characteristics - would they act in the same way?
What sort of characteristics can be taken into account?
2 cases?
A
Shameful past incidents, race, physical and mental infirmities
Things affecting the GRAVITY of provocation (Morhall - glue sniffer taunting - took into account glue sniffing as affected gravity)
Luc Thiet Thuan - can take mental infirmity into account
5
Q
Mens rea is presumed unless what?
A
Mens rea is presumed unless there is compellingly clear evidence to rebut it.
6
Q
Which case to show conduct must be voluntary?
A
Kay v butterworth
Driving without due care. Court: should’ve pulled over as soon as felt drowsy. Convicted.
Reasonable foreseeability is a factor.
7
Q
What is diminished responsibility?
A
Partial defence to murder
Burden on D to prove on balance of probs (I.e. More than trivial)
4 requirements set out in s52 CJA
8
Q
In which case did someone spill oil into a river! But the acts of a third party (the saboteur) weren’t enough to constitute a novus actus?
A
Empress Khan
Company was liable as didn’t protect others from harm (Hoffmann)
9
Q
Which case to show that you need factual causation, I.e. There must be a connection between D’s act and the consequences?
A
Dalloway. Horse and cart, not holding reins, but wouldn’t’ve been able to stop in time even if had been driving perfectly. So no crime.
10
Q
Main case for Transferred Malice?
A
Latimer 1886
Use Cunningham for ‘malice’ = an act is malicious if it is done intentionally or recklessly as to causing some harm.
So d liable if intend (or reckless thereto) to commit crime against one but in fact commits against another.
11
Q
Name three recent cases where strict liability was imposed
A
R v G 2008 - boy 15 raped girl 12. Hale said that parliament’s intention was to prevent sexual activity to protect a group in society. So imposed SL. Attaching label of rape even though couldn’t prove the girl was unwilling.
Jackson 2006
Dyemi 2008 - stungun carried around shopping precinct. Imposed SL since there was a social element - prevent people carrying firearms. Firearms Act.
12
Q
What are the cons of imposing strict liability?
A
. Stigmatisation (e.g. Rape in R v G 2008) - could affect employment prospects
. Injustice
. SL does not necessarily act as a deterrent - this assumes people are aware of the imposition of strict liability for certain crimes, how can it deter people if they don’t know what they’re doing is wrong?
13
Q
Does D’s act need to be the sole cause of the harm?
A
No, but it must have been a more than minimal cause (Pagett, per Lord Goff)
14
Q
How does alcoholism operate in connection with partial defences?
A
Can’t use loss of control. Morhall.
If separate to the AMF then intox won’t negate the defence of diminished responsibility. Doesn’t matter if alcoholism contributed to the AMF.
If alcoholism is the AMF then it needs to have been a significant factor in D becoming intoxicated so the defence will operate, so habitual drinking will not suffice (Dowds)
Despite the initial alcoholism, D’s mind may be functioning normally when he actually commits the crime (Stewart)
Dim responsibility will operate where the alcoholism in the AMF and this AMF caused D to get drunk in the first place.
15
Q
Taunting cases? 5.
A
Humphreys (15 yr old prostitute)
Bedder (tried to have sex. Taunted)
Camplin (non-consensual buggery. Taunting)
Morhall (glue sniffer)
Clinton (with sexual infidelity, rejected on retrial. Commonsense)
16
Q
Which case to show familial relationships give rise to a duty to act? There are two
A
Instan - aunt sick, duty, even though didn’t know she was ill, aunt was infirm therefore duty
Stone and Dobinson - stone’s sister found dead (sister therefore duty). Dobinson = live-in lover - had assumed a duty (she turned away social workers). Reckless disregard for health and welfare, so both godly of gross negligence manslaughter.
17
Q
In Kennedy no1 D was found guilty of manslaughter. Which case overturned this? What was the point of law?
A
Dias 2002
Self-injection is not unlawful - can’t be convicted of your own manslaughter. So V’s act = novus actus.
18
Q
Which case involved raising a vein with a tourniquet? What was established?
A
Rogers 2003. D was actively involved, so acting in concert together, so joint principal offenders. (V principal offer do but can’t be convicted since can’t be convicted of your own manslaughter)
19
Q
Two cases on mistake?
A
Bailey - ignorance of the law is no defence
Smith - mistake may negate mens rea where it is a mistake of fact and prevents D from forming the full mens rea.
(D thought he was damaging his own property so he couldn’t form mens: intentionally/recklessly damaging property belonging to another)
20
Q
What does a ‘person in being’ mean?
A
Must be born human, born alive (Poulton), capable of independent life (AG’s ref (No 3 of 1994) foetus, man)
Umbilical cord must be severed (Reeves)
Dead when brain is dead Malcherek and Steel
21
Q
Can intoxication be a complete defence to murder?
A
Yes, if it prevents d from forming the mens rea.
Asmelash 2013
Voluntary intoxication is of no relevance. The only relevance might be the gravity of provocation.
22
Q
Smouldering mattress case. What was it called? And what was the point of law?
A
Miller 1983
Lord Diplock: there was supervening fault - coincidence of actus reus and mens rea, so creation of a duty. Creation of a dangerous situation (recognised smouldering, went into a different room, arson)
Here a duty was superimposed - to take reasonable steps to counteract the harm set in motion
23
Q
Who criticised the CJA law on diminished responsibility?
A
Ronnie McKay
Said old law worked well in practice (in favour of the old mercy killing defence). Called it a “benevolent conspiracy”
If there had been premeditation this would negate the diminished responsibility defence. Tullock 2000
Law com wanted to include developmental immaturity as a partial defence, but didn’t since it thought it would make the defence too wide. McKay thinks this a shame.
Law com is tentative to produce radical change, so it instead included tentative and unnecessary changes in the act. McKay thinks the act is full of “judge’s compromises”
24
Q
Which test for factual causation? Who decides? Judge or jury?
A
But for test. Jury decides. Applying law to the facts. Evans
25
Case for continuing act theory?
Fagan!
Car on police officer's foot, wouldn't remove.
Just needed the mens era to occur at one point, then it coincides with the actus reus. (So in effect this is an exception to the 'coincidence of. Actus and Mens rule)
Where an actus occurs over a period of time it is sufficient that mens rea occurs at some point during that time.
26
S54 (1) (a). Elaborate.
Loss of control need not be complete, but d must've been unable to restrain himself (richens)
Must be more than a loss of temper (fenton)
No req that it be sudden (54 (2)) but the longer the delay the less likely it is that the defence will apply (esp if evidence of planning) Ahluwalia
Loss of control must take place at time of killing
27
What case would you use to demonstrate the high threshold set by the CJA self-control test?
Jewell 2014
Work colleague dispute. Pre-planned (left note to neighbours asking them to feed the cat!)
Bolsters the fact that the CJA test for loss of self control is very high - have to complete ALL 3 elements.
28
Which case for post-natal depression?
Reynolds
29
Which case would you use for the fact that jealousy will not suffice?
Fenton
30
What needs to be true about the mens rea for the crime in order for the malice to be transferred? Case?
Transferred malice sentence? 5 cases.
Needs to match the crime actually committed!
Pembliton 1874
Pub melee - stone thrown at head, missed, smashed window.
An act is malicious if it is done intentionally or recklessly as to causing some harm (Cunningham). D will be liable where intent (or are reckless) to commit a crime against one but in fact commits against another (Latimer). Need the mens rea for crime intended to match the one actually carried out (Pembliton).
Gnango (2011)
AG's ref (no3 of 1994)
D stabbed pregnant gf,many born prematurely and died.
Trial judge said the woman and foetus were one person so no murder/man.
HoL - Lord Mustil used transferred malice doctrine, but couldn't be murder. Was unlawful act man (no req that the act aimed at the unborn baby for this as this is a constructed crime, constructed manslaughter)
Prof smith criticism: said there was an intention to kill A but instead killed B so should have been transferred malice and conviction for murder. Mustil said this would create a legal fiction.
31
What is the mens rea for murder?
Intention to kill or cause GBH (Vickers)
Intention - Moloney Lord bridge
Kill - ordinary meaning
GBH - serious harm (Saunders) or really serious harm (DPP v Smith).
Same reform point as before - hierarchical system mirroring that in the US.
32
When will self-defence be a complete defence to murder?
If the force is necessary and reasonable
33
Which Scottish high court decision in 2009 departed from the authority of Kennedy No2?
Michael Kare v HM Advocate 2009
Same facts as Kennedy
Turned to s African law, and said that V's act is not a novus actus.
Said need immediacy, directness of action,many foreseeability to make D liable.
34
Which case states that the mind = perception, understanding, judgment and will?
Brown 1993
35
Does a D assume a duty of care towards a lover? Case?
No.
Bardsley.
Lover took morphine and overdosed. There was no duty of care to a lover.
36
What is the test for oblique intent? Case?
A) Was the consequence of D's actions (death/serious injury) a virtual certainty? Objective limb
Woolin, per Lord Steyn
B) if yes, did D appreciate that it was a virtual certainty? Subjective limb.
37
Direct intention? What is it? Case?
Intention should be given its basic meaning, i.e. 'Direct aim, purpose, or want'
Moloney, per Lord Bridge. This is the golden rule!
38
What about legal causation for murder?
Needs to be sine qua non, I.e. An indisputable result of their actions.
39
Which case would you use to show mens rea with no actus reus?
Deller
| Car salesman he though he was lying when he wasn't, so there was no crime
40
Carol Withey on loss of self control in CJA?
Still not self-evident that battered women suffered loss of control at the time of killing - more could be done to protect them. Cooling off period idea.
But, she does note that Baille wouldn't pass now (good thing. Ham sandwich)
Must question is such piece-meal reforms will solve wider problems governing murder.
Need more clarity on how overlaps with defence of self-defence.
41
What did Lord Steyn say in Acott?
Things must be said or done, circumstances alone are not enough.
42
What was Re A about?
Re A - conjoined twins case. Operation = positive intervention. Allowed on the basis of necessity. One bound to die either way. Had to preserve the other's life. Moral pathway hard to tread.
Sanctity of life versus autonomy.
43
Which old law cases would probably satisfy the new CJA test on loss of self control?
Battered women cases
. Ahluwalia - convicted of murder under old law, wouldn't under new (grave circs - previous beatings, threats operating at the time of murder, sexual infidelity)
. Thornton
. Humphreys (15 yr old prostitution case - raped by pimp, laughed at when tried to slit her wrists, she stabbed him to death)
44
In miller would there be a difference in outcome if you used Glanville's continuing act theory, or Smith and Hogan's duty theory?
No.
The duty to take reasonable steps to prevent the harm set in motion was superimposed.
Continuing act theory - just need to establish mens rea at one point (he left the room without putting out the smouldering!)
45
What will loss of control do if proven? Ss 54-56 JCA2009
Be a partial defence to murder (reduces it to voluntary manslaughter)
Burden of proof on the prosecution (beyond reasonable doubt)
46
What was Bland about?
Hillsborough. Switching off life support machine. This is not manslaughter. No commission by omission (doctor turning off = omission). Cf. bystander - would be murder/man depending on the requisite intention.
Lord Goff: what is in the best interests of the patient? Has the patient communicated wishes? No indication or communication? Doctor shouldn't be liable.
47
Old law test for loss of control?
Duffy
| Had to be sudden and temporary
48
Strict liability. What is it? What is the difference between the old law and the new law?
```
Where dispense with the need for mens rea.
Old law (sweet v parsley) made distinction between mala in se crimes (where obv crim, like murder) and mala prohibitor crimes (where presumption of need for mens easier to rebut, e.g. Regulatory or quasi crimes which no-one thinks of as 'criminal')
```
Now: emphasis is more on fault - less likely to say a crime is one of strict liability. Look at the language of the statute in order to determine this. Nature of crime, parliament's intentions.
49
What do you need for legal causation? Judge or jury to decide?
Responsibility and culpability. D's actions must be the operating and substantial cause of the consequences (Pagett). This means that d's act must have been more than a minimal cause (Lord Goff in Pagett)
Must have a connection between D's act and the consequences (Dalloway)
50
What was Pagett about? What else did it establish in relation to legal causation?
Girl used as human shield in a rooftop chase and shootout.
D convicted even though it was a police bullet that killed her.
A novus actus can break the chain of causation. Here d caused v's death.
51
Who thinks we don't need the doctrine of transferred malice?
Andrew Ashworth.
Said that in all cases D could be convicted for attempt.
Law commission opted to retain it since recklessness may not be enough to convict in all cases.
52
Case for escape? What was the test established in this case?
Williams 1991
Stuart-Williams LJ
Unwelcome homosexual advances made in a car.
Was it reasonably foreseeable (by D) that V would escape in the way he did?
It must be the NATURAL result of D's actions.
If the escape is too daft then it isn't reasonably foreseeable
53
Which case would you contrast with the battered women cases (Ahluwalia, Thornton, humphreys) with regards to the cooling off period?
Baille - ham sandwich en route to killing (drug dealer)
He didn't have a justifiable sense of being wronged so wouldn't satisfy new test.
But did satisfy old law rest since was momentary, sudden, temporary (Duffy)
54
Which case to show generally no liability for failure to act?
Airedale Trust v Bland 1993
55
Why was Cato a problem case?
It said the possession of drugs was the unlawful act and so secured a conviction of unlawful act manslaughter on this basis.
Problem = the possession didn't cause the death!
56
What was R v K 2001 about? Why is it relevant
26 year old man touched underage girl (though she looked older)
Bingham said offence was mala in se, so needed mens rea.
Relevant because it shows the court moving away from strict liability offences.
Then string of three cases where SL was used (see card before)
57
What's your main case for circs of an extremely grave character?
Clinton 2012
D killed ex-wife and sent pictures to her new lover.
D was acquitted since sexual infidelity + taunts
But retrial - have to look at in a common sense way! D pleased guilty - 26 years.
Don't isolate the event from the context.
58
What are the pros to imposing strict liability?
. Promotes greater vigilance (road, safety, hygiene, health & safety)
. Everyone views minor penalties as less serious
. Don't need to prove mens where there is a troubling element of the actus reus.
. Deterrence. Promotes enforcement, so can't escape liability as easily.
. Easy to administer
59
Recklessness. Which case overruled Caldwell and why?
R v G
Lord Bingham said the result in Calwell was "offensive" since only objective (objectively unreasonable for them to take the risk)
It led to bad results in Elliott v C (a minor) - 14yr old with special needs set alight to a shed - was found to be recklessly committing arson even though she couldn't foresee the risk!
R v G reestablished Cunningham as precedent on recklessness
60
When might the court be more willing to impose SL?
Where there is a public interest that needs protection, e.g. Environment, currency circulation in hard times.
61
Which case would you use to show that a person can't rely on an unknown justification?
Dadson 1850
Stealing wood, officer shot him in the leg to apprehend, but didn't know he was an escaping fell on at the time. Can't rely on an unknown justification.
Glanville thinks incorrectly decided since the actus reus was there, and if use continuing act theory the mens only has to offer at one point, doesn't matter when. He thinks the man shouldn't've been convicted.
Smith and hogan disagree - duty theory - correct conviction.
62
Which case established that you need to act in more than a minimal way in order to cause death by dangerous driving?
Hughes 2013
Need causation and fault
Here there was factual causation but no legal causation - D's driving was perfect - the crash was 100% v's own fault. Not a strict liability offence, so the conviction was quashed.
63
What were Gammon v AG of HK and Bradish about?
Old law strict liability.
Gammon - Lord Scarman's 4 propositions - look at words of statute to see if SL was intended. Some WORDS import liability, others don't. E.g. Words such as permitting, allowing, classing, possession - all import SL. Road traffic crimes are a good example.
Bradish - words such as knowingly, wilfully, or maliciously are associated with mens rea. Here possession of an aerosol canister was possession of a firearm, a SL offence.
64
What are the two qualifying triggers for s 54 (1) (b)? Need test and case for both.
Fear of serious violence. Subjective test. Threshold high (Martin)
Things said or done which constitute things of an extremely grave character AND cause d to have a justifiable sense of being seriously wronged.
Objective test - Clinton
The example given in guidance notes is coming home to find that your child has been raped. V high threshold.
65
Which other cases (2) can you use to illustrate escape?
Roberts 1971.v jumped out of moving car. ABH.
Mackie - was it RF that v would escape in the WAY he did?
66
What spare the two assisted suicide cases?
Pretty
Purdy
The Assisted Dying Bill failed
67
Does it matter why the mistake was made for Transferred Malice doctrine?
Sentence on transferred malice? 4 cases.
No.
Where the offence is committed through a series of actions, the men's rea can occur at some point (Thabo-Meli). Prior planning is not required (Church 1966). The transaction occurs as long as D involved (Le Brun, per Lord Lane).
Also AG's ref (no3 of 1994)
68
Can you use loss of control if you have a considered desire for revenge?
No. S 54(4)
69
Which other cases (2) would you use to show that a duty can be imposed for the creation of a dangerous situation?
Fagan
| Santana-Bermudas
70
What does the self-administration of drugs constitute?
A novus actus interveniens. (Kennedy No 2)
71
What are the four cases to use on alcoholism?
Asmelash
Alcoholism will be a complete defence to murder if has prevented the D from forming the mens rea.
Tandy
Alcoholism can be a disease of the mind on two preconditions:
A. Has to have reached a level where the person is brain damaged/diseased on medical evidence, so there was a gross impairment of judgement to render her to take a drink involuntarily
B. If first drink was voluntary then can't rely on abnormality of mind.
Wood
Alcohol dependence syndrome. Drunk, passed out, gone to flat, unwelcome sexual advances made stabbed V to death.
Dietschmann 2003
Sir Igor judge disagreed with Tandy. Doesn't need to be a brain disease for it to be a defence. Simply need to be the effect of alcohol consumed as a direct result of the dependency that is relevant.
Here D was an alcoholic and depressed, so can have a mixed cause of the abnormality of mental functioning.
72
Red bandana man. Elaborate.
Gnango. Shootout in a carpark. Man who shot the bullet escaped. D was liable even though it wasn't his bullet.
He shot back so encouraged his own attempted murder!
It was the same fault element even though a different crime, so malice transferred.
73
What are the three requirements needed for the loss of control defence to apply? Which section?
S.54
D must have killed as a result of losing control
Loss of control must've had a qualifying trigger
Another person with D's characteristics must have (hypothetically) reacted in the same or similar way as the D.
74
What is the definition of the actus reus for murder?
The unlawful killing of a person in being under the Queen's Peace. - per Coke
Fine if soldiers in combat, or for the 'advancement of justice' or self-defence (provided force necessary and reasonable)
D must CAUSE V's death
75
What was Santana Bermudas about?
Sharps. Pocket. Creation of a dangerous situation.
Harm was reasonably foreseeable, so failure to act (inform policewoman) was the conduct part of the crime. Convicted for assault (she pricked her finger).
76
Generally there should be a coincidence of the actus and mens, but what are the two exceptions to this rule?
```
Continuing Act Theory (Fagan) SAME actus
Transaction Theory (Thabo Meli) DIFFERENT actus'
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77
Which case interpreted the Woolin test for oblique intention? What was established?
Matthews and Alleyne 2003
| Virtual certainty comes from Nedrick. The Woolin test is a rule of evidence (therefore it is for the JURY to decide)
78
What about oblique intent?
= where try for consequence A but B happens
Only applies to murder and s.18 crimes, I.e. Where intention nay form of mens rea.
Lord bridge in Moloney - mere foresight of the prob of an outcome is not enough for oblique intent.
Never us this where recklessness is available!
D's motive is irrelevant - flight to Manchester example. Overwhelming moral certainty.
79
When will suicide constitute an novus actus and break the chain?
When the wounds from the initial assault have completely healed, and where suicide unconnected with the initial attack.
Rose LJ in Dear 1996.
80
Which present day case didn't satisfy the loss of self control test?
Davies 2013.
| No rages or incitement of attack (d stabbed v to death in a fit of jealous rage)
81
Case on suicide? Point of law?
Dear 1996.
Rose LJ: have to look to see if the initial wounds remained a significant and operative cause of death.
Here had been wounded, the alleged suicide was the reopening of the wounds.n
82
Which case to show a parental duty to act?
Gibbins v Proctor
| Let daughter nelly starve to death. Gross negligence manslaughter, there was a duty to act
83
6 main things/headings for mens rea?
```
Intention
Knowledge
Recklessness
Mistake
Dishonesty
Strict liability offences
```
84
What did Alan Norrie have to say about loss of control under CJA?
He notes the shift from an excuse-based defence to a justification-based defence (looking at trigger)
85
If the V is escaping what do V's actions have to be in order for the escape test to be satisfied?
Proportionate to the threatened harm. Williams 1991
So needs to be in a range of reasonably foreseeable responses in order to not break the chain of causation.
V's characteristics may be taken into account even if d wasn't aware of them at the time.
86
Which case overruled Empress Khan?
Latif
| A free, deliberate and voluntary action by a third party will constitute a novus actus.
87
What is Transaction Theory? Which 4 cases?
= offence occurs through a series of actions, just need mens rea at some point. (Lord Reid in Thabo Meli)
. Thabo Meli - mountain hut, hit over head, rolled down mountain, hypothermia, dead.
. Church - prior planning not required
. Le Brun - hit wife over head, dropped when bundling into cab to cover up crime (might've been different if the motive was pleasant!)
Transaction continues as long as D involved
. AG's Ref (no4 of 1980) - v gruesome case. Despite uncertainty of actual cause of death still convicted of manslaughter
88
What was the relevant act in Evans (Gemma) 2009? Which case would you contrast it with on this point?
The supply of drugs. Duty created due to the recognition of overdose & blanket over her.
Contrast with Kennedy No 2. Drug dealer didn't hang about - a dealer doesn't owe a duty to his customers.
89
If not guilty of the actual crime of manslaughter what else might you convict them of (in drug cases)?
Being an accessory to the crime.
| Rafterty - plan to kill, cash point, no actus, but still an accessory.
90
Which case to show a duty to act through contract?
Pitwood 1902
| Level crossing keeper on lunch. V hit by train.
91
Statute for the administration of a noxious substance?
S.23 Offences Against the Person Act 1861
92
Can a duty be removed due to pleading?
Yes. Smith 1979.
Wife pleaded with husband not to seek medical help.
(But this is an issue as yet unresolved in the case law)
Cf. Bland - Lord Goff insinuates a duty can be removed if the patient can make rational decisions.
93
What are the two limitations to qualifying triggers? Cases?
Can't rely on where incited triggers as an excuse to use violence (Johnson)
Sexual infidelity alone is not enough to constitute circs of an extremely grave character (but will be enough where combined with taunts, or threats, or other issues like child custody) - Clinton
94
Can sexual infidelity be taken into account for the objective 'someone of D's characteristics reaction' test?
Yes but probably won't be circs of an extremely grave character unless combined with something else (e.g. Taunts) - Clinton.
95
What is meant by a lacuna in the law, with respect to recklessness? 2 cases?
Where D concludes no risk of harm, or where D considers there is a risk of harm but thinks he has done something to eliminate it.
Merrick - d had taken some steps to remedy the risk. Different to concluding there was no risk and proceeding anyway.
Morgan - RAF sex with wife. Protest to heighten pleasure. Ds thought it was honest consent.
Court said the belief has to be REASONABLE and honestly held. Convicted.
96
Which case said Rogers 2003 was wrongly decided? What did it establish?
Kennedy No2 2007
Said V's act = novus actus. Raising a vein is not enough to establish joint principalship. It is the injection of the drug which causes the death.
In this case there was no duty created as the drug supplier didn't hang round after handing over the drugs. Cf. Evans 2009 where there was a duty owing to the creation of a dangerous situation.
This was followed in Cher Kassky 2008
97
Necessity is no defence to murder? Except when?
```
R (Nicklinson) v MoJ 2014 Supreme Court said it was impracticable to lay down guidelines on assisted dying since each case v specific.
Re A (conjoined twins) was too slender a thread to defence of necessity in murder.
```
98
If you knocked someone out on a beach and the tide comes in to drown them will you be liable?
Yes. Where naturally occurring events intervene the causation issue will turn on reasonable foreseeability.
99
What can never be defences to attempted murder?
Loss of control and diminished responsibility (Campbell)
100
When is murder lawful?
If in the course of war or rebellion against the crown (Clegg)
101
What did Lord Goff's comment in Bland insinuate?
That if a patient can make rational decisions it might remove a doctor's duty of care towards his patient.
102
Which case was the turning point for SL in the law?
B (a minor) v DPP 2000
Lords Nicholls and Steyn. Said that you have to look at the language of the statute to see if the presumption of mens rea can be rebutted. Excluding mens can be express or implied.
What is Parliament's will, what was the mischief they were trying to prevent?
103
What can never be defences to murder?
Consent and duress.
104
What is intention distinct from?
Motive.
Intention is what the action was attempting to achieve.
Motive is why the action was carried out.
You want to know that someone went to the shops to buy eggs, not that they went to the shops to buy eggs because they wanted to fry them for breakfast.
105
Which case was applied in Evans (Gemma) 2009, and to what effect?
Miller. Creation of a dangerous situation. So duty, so gross negligence manslaughter. They recognised the signs of an overdose and covered her with a blanket, but failed to seek help.
Here the duty arose from the creation of a dangerous situation and NOT the familial relationship. Some steps had been taken, and then there was omission - commission.
106
What does a novus actus have to be in order to break the chain of causation? Case?
A free, deliberate, and informed action. The harm caused must also be reasonably foreseeable.
Pagett
107
Reform point on intention?
Law com report 304
What does 'virtual certainty' actually mean?
They wanted to implement a two-tier hierarchical system for murder (like in America)
1st degree = intent to kill
2nd degree murder = intent to cause GBH with serious risk of death.
108
Which case to show breach of duty to act (imposed by statute)?
Dytham
109
Which case to show that factual causation may not be present, despite the presence of the mens rea?
White
Poison in mother's drink, but she died of something else.
But for test!
110
Which old law cases would you have doubts about in terms of their ability to pass the CJA loss of self control test?
Baille (had a ham sandwich on the way to commit the crime)
| Doughty (baby crying, couldn't cope, strangling)
111
Where would you use/identify ulterior intention?
Burglary - entering a building with intention to steal or commit criminal damage, or rape, or commit GBH at point of entry.
112
Which 2015 case said that references to the old law may be unhelpful with regards to loss of self control?
Gurpinar and Kojo-Smith
| Need sufficient evidence on all three elements of the CJA test. Reiterated that the threshold is high.
113
What happened in AG's ref (No 4 of 1980)?
Pushed over balcony, strangled, cut up.
Use for transaction principle and for transferred malice.
Mens rea just had to occur at one point.
Transferred malice - could only use for manslaughter (unlawful act and unlawful state of mind).
They couldn't convict of murder since couldn't prove the fault element at every point in the crime.
114
In which case did the V refuse medical treatment, but the court ruled this was not a novus actus? Why?
Holland 1841
V refused amputation of finger - not unreasonable given the state of medicine in 1841!
V died of lockjaw.
115
Case on knowledge for mens rea?
Croylagrange
| Knowing that you're running a sex establishment.
116
When should you use R v G as opposed to Cunningham when testing recklessness?
Criminal damages cases (due to the facts). Use Cunningham in every other case.
117
Name the 7 drug administration cases you need to be aware of.
```
Kennedy no1
Cato
Dias
Rogers
Kennedy no 2 (followed in Cher Kassky 2008)
Michael Kare v HM Advocate
Evans
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118
Case on Transferred Malice involving a pregnant lady?
Ag's ref (3 of 1994) - d stabbed pregnant gf. Could malice be transferred to foetus (killed)?
Mustill said no - gf & foetus are one person, so wasn't murder but unlawful act manslaughter since caused the death of the baby.
Prof John smith disagreed - said there was an intention to kill so should be transferred malice. Would create a legal fiction otherwise.
119
What justice and coroners act 2009 change?
Loss of control (ss 54-56) and diminished responsibility.
120
What does abnormality of mind mean? Which case?
Byrne
Something that a reasonable man would term abnormal
Here was an irresistible impulse - strangulation
121
Which case states that habitual drinking isn't enough? I.e. That it need to be a recognised medical condition for alcoholism
Dowds
| College lecturer binge drinking, killer partner.
122
Outline the methodology of strict liability offences
Language of statute, parliament's intention, what is the mischief being prevented?
The mala in se / mala prohibita distinction can be morally blurred, hence the current law focuses more on fault, rather than the creation of strict liability.
123
What did Ian Dennis (2010) have to say about loss of control in relation to the CJA ?
V narrow, loss of control used to be much wider, used to cover frustration and shock
BUT - argue against this. The old law Duffy test was capricious against women. Lots of differing responses.
124
What is the Cunningham recklessness test?
A) are they subjectively aware of the risk at the time they commit the offence?
B) is it objectively unreasonable for them to take the risk in the circumstances?
Only factors known to D at the time should be considered (R v G)
The reasonableness of an action will be determined by its social utility.
125
What is the golden thread principle?
Woolmington
Innocent until proven guilty.
Burden on the prosecution - beyond reasonable doubt. Must prove that d had intention or reckless state of mind and that no defence applies.
Where insanity or disease of mind the burden is lowered to the balance of probs.
126
Take the v as you find them?
Blaue. D will be liable for the full extent of the consequences.
Brittle bones, haemophilia.
Lawton LJ
This meant the stabbing was still the operative cause of death.
127
Medical negligence is unlikely to break the chain of causation, but what test should you use to check? Which two cases?
Significant contribution test - is it so potent and independent of D's acts to render D's acts insignificant? (Cheshire 1991)
Potency, independence, extraordinary, abnormal, unforeseeable
Smith - will only break if so overwhelming as to make the original wound part of history
(Soldier was negligently dropped on the way to treatment)
