Criminal Law Flashcards
(14 cards)
Recklessness
Has it at least crossed their mind?
a) At the time of committing the AR the Accused was subjectively aware of the risk
b) In the circumstances known to the accused it was objectively unreasonable for the accessed to take the risk.
R v G
Without lawful excuse - S 5(2)
s5(2)a: D honestly believes the owner had/ would have consented to the damage had they known abt it and circumstances.
- Need NOT be reasonable but MUST be honest; Even if mistake due to intoxication; the Motive of the D is also irrelevant –> even if it is fraud.
s5(2)b: Operates where D acted in order to protect their own or another’s property (NOT people):
- D must act to protect property
D must believe the property was in immediate need of protection; - D must honestly believe that means of protection were reasonable.
- THE DAMAGE CAUSED must be OBJECTIVELy capable of protecting the property (prevent too remote claims).
Appropriation
ANYTHING physically you are doing with an object;
Any assumption by a person of the rights of an owner amounts to an appropriation.
The mental state of the owner is irrelevant as is the fact of whether it was a gift; Appropriation = OBJECTIVE description of act that has nothing to do with the mental state of either the owner or the Defendant - NO need for there to be ADVERSE INTERFERENCE w the owner’s rights.
Just 1 right is enough to amount to an appropriation.
BTA
5(1) Property shall be regarded as belonging to any person having possession or control of it or having in it any proprietary right or interest –> Courts do NOT readily find property abandoned - even if the owner has stopped looking for it; depends on whether the actual owner wants the property or not.; you can control property you didn’t know was on your land - as long as you eat intention to exercise control over buildings and items on it either expressly or impliedly (Impliedly - excluding trespassers/ Expressly - by putting up a notice). Also your property can belong to another until bill for services is paid.
5(3) Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or proceeds shall be regarded (as against him) as belonging to the other –> Basically allows property to belong to MORE than 1 person; Civil title passes exactly at time parties intend it to pass but this section allows it to still belong to me as long as there is a legal obligation on D to deal w it in a particular way (catches cases where the civil title to property passes to D before they have formed the dishonest intent) - But mere expectation that my money be used for a particular purpose does NOT automatically mean that s5(3) will apply –> there are requirements.
- Where title to the property has passed to a dishonest D before dishonest intent is formed to use it for unauthorised purposes.
- Although clients expected tickets in return they did not expect for money to be held separately to general running so section 5(3) did not apply.
5(4): Where a person gets property by another’s mistake, and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof, then to the extent of that obligation the property or proceeds shall be regarded (as against him) as belonging to the person entitled to restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds.
Cases where overpaid by mistake - obligation to make restoration once aware.
- NOTE; This section does NOT create a legal obligation to make restoration of property got by another’s mistake;
The Q of whether the obligation to make restoration exists is a Matter of Law for the judge
But usually when one become aware they have acquired property by mistake the law on restitution dictates they should return it (overpaid police officer should have returned the excess amount she was given).
Theft
s1(1) Theft Act 1968, which provides: ‘A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it’
Dishonesty
Negative part;
The D is NOT dishonest if GENUINE belief (subjective test) that:
- D had a right in Law
- Owner would have consented
- Person to whom the property belongs cannot be discovered - reasonable steps.
BUT IF NO STRONG BELIEF –> Move on to consider the Positive aspect:
Ivey v Genting Casinos:
a) What was the D’s K&B as to the facts?
b) Given that knowledge and belief was the D dishonest by the standards of ordinary and decent people?
ONLY if NOT Clear - aka no clear intention - should we look at Intention to permanently deprive;
Intention to permanently deprive
Comes into play when NOT clear If D had intention to permanently deprive (think of the caselaw: Take tapes from cinema and then return them);
- Literally covers cases where D had NO intention to actually permanently deprive Owner of their property.
Inclused:
- means to DISPOSE of the property: Deal with it definitely, Sell it, Get rid of it, to deal with definitely, includes treating it in a manner which risks its loss, X attempting to sell owner their own property.
More than JUST dealing w it is required; taking car to escape from the police and then abandoning it with the doors open was held to be MERE dealing but did NOT amount to Intention to permanently deprive;
- Includes rendering property useless; breaking headphones, and ransom cases (conditional return is NOT included).
BORROWING is NOT enough to constitute a disposal unless;
- Replace the item
- Return it in such a changed state minus all its goodness, virtue and practical value (i.e a used railway ticket/ exhausted battery VS the projection film from cinema).
Robbery (if no theft Then NO Robbery)
AR of Theft + Force (3 ways; No requirement the threat or use of force be directed to the owner of the property ≠instead can be directed to ANY person but still NO causal link between person being subjected to fear use of force being having caused the D to give the property at hand.
- Appropriation is a continuous act so use of force must be: Immediately before or at the time of stealing.
MR of Theft + Intention to use force in order to steal (rather than stela as aforethought).
Robbery
AR:
- AR of theft
- Use of force in 1/3 ways: (Uses force, Puts any person in fear or seeks to put any person in fear of being there and then subjected to the use of force) ≠Threat of force (ie. I will harm your mom if you dont do this; I am not put in fear (nobody is frightened) and no one here that D is seeking to put in fear of being subjected to force.
- on any person
- immediately before or at the time of stealing
MR:
- MR of theft
- Intend to use force IN ORDER to steal.
Without lawful excuse defence = Criminal Damage/ Basic Arson - 2nd limb; S 5 2 b.
s5(2)(B); is worded Restrctively!
D “must”…
Building;
Decent size + some permanence.
Procure
Causal Link is required between D’s act (accessory) AND the commission of the offence;
= To produce by endeavour; to want sth to happen!
MR for Accessorial Liability
1- Intention (not positive intent; oblique intention suffices but NOT just accidentally leaving gum w him) to add or encourage the Ps conduct.
2- If crime requires MR, intention lion that the P will do AR w MR; Conditionlal if D pleased or accepting/ but if dismayed only oblique intent will suffice; may liable for greater harm than intended by D if P commits offence with MR that does not correspond to the AR.
3- Knowledge of facts or circumstances. necessary for the offence to be criminal; Must know the type of offence; need not know EXACT details; Includes wilful blindness (D must know V not consent, D must know things are being stolen).
