Criminal Revision Flashcards
(93 cards)
1
Q
Murder introduction/ definition
A
- D may be liable for murder
- The definition of murder is the unlawful killing of a human being with the intention to kill or cause GBH.
2
Q
Actus reus of murder
A
- The actus reus of murder is the unlawful killing of a human being.
-It must be established that the killing in unlawful (Apply) - It must be established that the victim is considered a human being because they have an independent existence outside of the womb. (Apply)
-It must be established that the D is both the factual and legal cause of the killing: - Factual causation- apply the “ but for” test ( White)
- Legal causation- Significant contributory factor- “ More than a slight or trifling link” (Kimsey)
3
Q
Causation issues for murder (List all)
A
- V’s own actions/escape attempts (Roberts)- No beak as long as the actions were reasonably foreseeable.
- Bad medical treatment (Cheshire)- no break as long as wound are still a n operating and substantial cause.
-V does not seek treatment (Holland)- no break a V is under no obligation to seek medical treatment
-Acts of a 3rd party (Pagett)- No break as long as original D made a significant contribution
-Life Support (Malcherick and Steele)-no break
-Thin Skull rule (Blaue)- no break as D must take the V as they find them. - Natural but unpredictable event- will break chain
4
Q
Mens Rea of Murder
A
The Mens Rea of murder is the intention to kill or cause GBH.
- If D intended to kill= Direct intent- it was D’s aim, purpose and desire to kill the Victim (Mohan)
-If death was a virtual certainty= Oblique intent-apply the virtual certainty test (Woolin).
-Was death or serious injury a virtual certainty as a result of the D’s
actions?
5
Q
Loss of control intro/definition
A
- D may be able to argue the defence of loss of control.
- Section 54 of the Coroners and Justice act 2009 sets out a 3 stage test.
6
Q
Loss of control stage 1
A
S54(2) states that the D must have lost their control.
-The loss does not have to be sudden, but the longer the delay, the less likely the D is to get the defence.
-(Gregson) rules that the D’s circumstances are taken into account when assessing whether they lost their control (E.G- unemployment, stress).
7
Q
Stage 2 of Loss of control
A
- Section 55- The loss of control must be due to a qualifying trigger. There are two triggers- the fear trigger(Lodge), or anger trigger (Zebedee).
- Explain/ Apply whichever trigger is relevant to the question
8
Q
Loss of Control- Fear trigger
A
-D fears serious violence to D or another person (Lodge/ Pearson)- subjective test and D must have genuine fear.
-exam tip- If you use this trigger, self defence will most likely need to be applied.
9
Q
Loss of control- Anger trigger
A
Established in (Zebedee)- three part fully objective test:
1) There must be things said or done.
- Clinton- sexual infidelity alone cannot be the thongs said or done
2) The things said or done must amount to grave provocation
3) Causes D to feel a sense of being justifiably wronged.
10
Q
Stage 3 of Loss of control
A
s.54(3) Would a reasonable person pf the same age and gender as the D with a normal degree of tolerance have acted in a similar way (Holley).
-Side Rule- the defence cannot be used in a desire for revenge.
11
Q
Diminished Responsibility Intro/definition
A
- D may be able to argue the defence of diminished responsibility
-Section 52 of the Coroners and Justice act 2009 defines Diminished responsibility as having a three stage test.
12
Q
Stage 1 of diminished responsibility
A
The D must be suffering from an abnormality of mental functioning which arose from recognised medical condition.
- Byrne defined abnormality of mental functioning as ,” A state of mind so different from that of a ordinary human being that a reasonable person would term it abnormal”.
13
Q
Recognised medical conditions for diminished responsibility
A
-Severe depression (Seers)
- Pre menstrual tension (Smith)
- Epilepsy (Campbell)
- Paranoia/ personality disorder (Martin)
- Irresistible impulses(Byrne)
- Alcohol Dependency Syndrome (Stewart)
14
Q
Stage 2 of Diminished responsibility
A
The abnormality of mental functioning must substantially impair the D’s ability to form rational judgements, exercise self control, or understand the nature of their actions.
-(Golds) rules the impairment must be ,” Weighty, and not trivial
15
Q
Stage 3 of Diminished responsibility
A
The abnormality must be the reason for the killing
- s.2(1)(B) (Amended) Homicide act 1957. The abnormality must be sa significant contributory factor in the killing of the V.
-Side Rule- Intoxication- If D was intoxicated at the time of the killing, then ignore this (Dietschmann).
16
Q
Stage 1 of unlawful act manslaughter
A
The D must have committed a lesser unlawful act (assault or battery)
-Khan & Khan rules this must be a positive act, and not an omission
- (Franklin) rules this must be a crime, and not a civil wrong
- Explain and apply which lesser unlawful act is committed
17
Q
Stage 2 of Unlawful act manslaughter
A
The act must involve a risk of harm
-(Church)- Would a reasonable person observing see a risk of harm?
-(DPP v Newbury & Jones)- the D does not need to be aware of this as long as a reasonable person observing would be.
18
Q
Stage 3 of unlawful act manslaughter
A
Did the unlawful act cause the death of the V?
1) Factual causation- but for test (White)
2)Legal causation- more than a slight or trifling link (Kimsey)
- causation issues
19
Q
Stage 4 of unlawful act manslaughter
A
The D must have the mens rea for the lesser unlawful act (Goodfellow).
20
Q
Gross Negligence Manslaughter intro
A
- D may be charged with involuntary manslaughter
- Broughton rules that Gross Negligence Manslaughter has five stages which must be proved
21
Q
Stage 1 of gross negligence manslaughter
A
- Key Law: Foreseeability, proximity, fairness (Donoghue vs Stevenson(1932))
-Side rule- already established DOC’s: Contractual duty(Pitwood), Voluntary duty(Gibbons&Proctor), Special relationship (Gibbons&Proctor), Creating a dangerous situation (Miller).
-Side rule- joint enterprise (Wacker)
22
Q
Stage 2 of Gross Negligence
A
Has the D breached a duty of care (Adomako)
- “Ordinary principles of negligence apply”
- Has the D acted like a reasonable person or have they failed to meet the standards of a reasonable person?
- Side rule- any omissions go in here.
23
Q
Stage 3 of Gross negligence
A
Did the breach involve a risk of death (Misra & Srivastava)/(Singh)
-Any causation issues go here
24
Q
Stage 4 of gross negligence manslaughter
A
Is the breach of duty gross?
-Was the breach so bad that it ought to be a crime? Did the D show a total disregard for the life and safety of others? (Bateman/ Adomako)
25
Assault introduction/ definition
- D may be liable for assault
- Lord Goff in Collins vs Wilcock defined Assault as, "An act which causes the victim to apprehend immediate unlawful force"
26
Part one of the actus reus of assault
D must do an act:
-Can be words, gestures, even silence (Ireland)
-Side Rule- Letters/emails/texts(Constanza)
27
Part 2 of actus reus of assault
The victim must apprehend force (Lamb) if there is no apprehension, there is no assault
- Side Rule- Jokes- even a joke can be assault if it makes the victim apprehend force (Logden)
28
Part 3 of actus reus of assault
The threat of force must be immediate - (Smith v Chief of Woking police).
- side Rule- Words may negate an assault (Tuberville v Savage)
- If there is a causation issue, it goes in here
29
Mens rea of assault
The intention (Mohan) or recklessness (Cunningham) to commit an act which causes the victim to apprehend immediate unlawful force (Venna)
- Issues of transferred malice or coincidence rule go here
30
Battery introduction/ definition
- D may have committed a Battery
- Battery is defined by Lord Goff in Collins vs Wilcock as ,"The actual infliction of unlawful force
31
Part one of actus reus of battery
Touching- Lord Goff, “Any touching, however slight, may amont to a battery”.
- Side Rule- Clothing (Thomas)
- Side Rule- Indirect touching (Martin)
32
Part 2 of actus reus of battery
The touching use be unlawful. Wilson v Pringle defines unlawful as “Hostile or aggressive”
- Causation issues here
33
Mens Rea of Battery
The intention (Mohan), or recklessness (Cunningham), to inflict unlawful force.(Venna)
-Transferred malice or coincidence rule goes here
34
ABH Introduction/ definition
- D may be liable for ABH
- ABH is defined under section 47 of the offences against the person act 1861as,"A common assault that occasions actual bodily harm".
35
Part one of actus reus of ABH
he D must have committed a common assault (Assault or battery).
- Fully apply whatever common assault has been committed
36
Part 2 of actus reus of ABH
The common assault must have occasioned (caused) the injuries.
- this is an issue of causation
37
Part three of actus reus of ABH
The victim must have ABH injuries
-Miller- “ any hurt or injury calculated to interfere with the health and comfort of a V but must be more than trifling”
- Chan Fook- “must not be so trivial as to be wholly insignificant”
38
Examples of ABH injuries
-Extensive/ multiple bruising
-Temporary loss of sensory function
-Psychiatric injury- mild or temporary (Ireland/Burstow)
-Broken nose, toes, fingers, or hair line fracture of another bone
- Temporary loss of conciousness (Fainting)- T v DPP
-Cuttiing the victims hair (Smith)
- Minor cuts requiring medical treatment
-Chipped/loss of tooth
39
men’s Rea for ABH
(Savage) rules that only the mens rea for assault or battery is needed (Venna case for Both)
- Transferred malice or coincidence rule goes here
40
How to establish what type of GBH has been committed.
1) Did the D intend to inflict nothing less than GBH on the victim? (yes=s.18, no=s.20)
2) Did the D only intend/ was reckless to inflict some harm, but actually ended up inflicting GBH style injuries ? (Yes=s.20)
41
definition of section 20 GBH
Offences against the person act 1861 defines s.20 GBH as, “ inflicting a wound, or grievous bodily harm injuries, with the intention or recklessness t inflict some harm”.
42
Definition of s.18 GBH
Offences against the person act 1861 defines s.18 GBH as, “Inflicting a wound or GBH injuries, with the intention to inflict GBH, or to resist arrest”.
43
actus reus of GBH
The D must inflict a wound or GBH injuries. A wound is a brea in both layers of skin (Dermis and Epidermis) - (Eisenhower), and a GBH injury is ,” nothing more or nothing less than a really serious harm “.
44
Two side rules for actus reus of GBH
Side Rule 1- Accumilation of injuries can amount to GBH when taken together (Brown/Stratton)
Side Rule 2- Vulnerable victim, the injuries are seen as more seriou (Bollom)
45
Mens rea for s.20 and s.18 GBH
s.20- Intention (Mohan) or recklessness (Cunningham) to inflict some harm (Mowatt)
S.18- Intention (Mohan) or recklessness (Cunningham) to inflict GBh injuries, or to resist arrest (Morrison/Mowatt)
46
Define theft, and what section of which act does it come from ?
Section 1 of the theft act 1968 defines theft as, “The dishonest appropriation of property belonging to another, with the intention to permanently deprive”.
47
Stage 1 of theft
Appropriation- Section 3 defines appropriation as ,” Assuming the rights of the owner”.
- (Morris)- Any assumption is enough
- (Gomez)- the appropriation must be dishonest
Side Rules:
-Section 3(1)- if the D gets property but then decides to keep it- this is a theft
- (Lawrence)- If you had consent to take, this is still an appropriation
- (Hinks)-You appropriate the property even if it is a gift
48
Stage 2 of theft
Property must be stolen:
- Under section 4 theft act 1968, only four types of property can be stolen: money, personal, intangible, real property
- Side rule- property that cannot be stolen- Knowledge (Oxford v Moss), Wild animals/ plants, electricity
49
Stage 3 of theft
The property must belong to another
-Section 5(1) The property belongs to another if they have possession or control over it, or a right or interest in it.
50
Side rules for stage 3 of theft
-Stealing your own property- if someone else has a right or interest in i you can steal your own property (Turner)
- Lost property- the original owner still has a right or interest in it (Section 5(1))
-Abandoned property- The owner must have an intention to abandon the property (Basildon)
- Section 5(3)- You must use the money for its intended purpose (Davidge & Bennett)
- Receiving money by mistake - section 5(4) You are under an obligation to return the money (AG’s ref)
51
Stage 4 of theft
Dishonesty- No legal definition of dishonesty. If the D falls into any of the three negatives, then they are not dishonest.
- if they do not meet any of the negatives, then apply the dishonesty test.
52
How do you establish if someone is dishonest
Three negatives:
-s.2(1)(A)-D believes that they have a right in law to the property
-s.2(1)(B)- D believes that the owner would have consented to the taking.
-s.2(1)(C)- D believes that the owner cannot be discovered by taking reasonable steps
-Dishonesty test: “Was the D dishonest by the standard of a reasonable and honest person?”
53
Stage 5 of theft
Intention to permanently deprive- Section 6(1)
-“The D continues to treat the property as if it is their own, regardless of the owners rights”.
Side rules:
- Replace- even if you intend to replace the property, you still have the intention to permanently deprive (Velumyl)
- Borrow- If you give the property back, but you have taken the,”Goodness, value, and virtue”, then this is an intention to permanently deprive (Lloyd)
-Conditional intent- If you only intended to steal if there is something worth stealing, this is not an intention to permanently deprive. (Easom)
54
Robbery Introduction/ definition
- D may be liable for robbery
-Section 8 of the theft act 1968 defines theft as,” Where the D steals, and immediately before or at the time of, and in order to do so, uses force or the threat of force
55
Actus Reus Robbery stage 1
The D must have committed a theft (Robinson)
- Apply by using the phrase, ‘This has already been established above”, as you start with theft first.
56
Actus Reus robbery stage 2
The D must use force or the threat of force.
- (Dawson)- Any amount of force is enough
-Side rules- Indirect force- Force can be applied to the V’s clothing (Clouden)
-Threats of force- Even if the D does not feel fear, this is still enough (B&R v DPP)
57
Actus reus stage 3 robbery
Force must be used immediately before or at the time of the theft.
- (Hale)- Appropriation is a continuing act, so as long as force takes place at some pint, then this is enough.
58
Actus reus robbery stage 4
Force must be used in order to steal (Lockley)
59
Mens Rea (stage 5) of Robbery
- Firstly, the mens rea of theft must be established- dishonesty, and intention to permanently deprive (Robinson)
- The mens rea of robbery is the intention to use force or the threat of force (Mohan)
60
Self defence introduction/ definition
- D may be able to argue the defence of self defence
- Section 76 of the criminal Justice and immigration act 2008 states the defence can be used to protect yourself, someone else, or to prevent a crime.
61
Self defence stage 1
- Section 76(3) the force must be necessary
- The defendant must have held a genuine belief that the force was necessary- subjective test.
- Apply this and any possible side rules
62
Self defence stage 1 side rules
- Side rule1- section 76(4)- the defence is available if the D made a genuine mistake (Gladstone Williams)
- Side rule 2- Section 76(5)- If the reason the D made a mistake is because they were intoxicated, the defence will be lost.
- Side rule 3- Pre-emptive strike- The D can make the first move and still argue the defence (Beckford)
63
Side rules for part 2 of self defence
- Side rule 1- Excessive force- If the D uses excessive force, they will lose the defence (Martin)
- Side rule 2- Self defence at home- Crime and courts act 2013- If self defence is in the home it can be disproportionate as long as it is not grossly disproportionate (Ray)
64
Voluntary intoxication introduction
- D may be able to argue the defence of voluntary intoxication
Majewksi rules that there is a distinction between specific and basic intent crimes.
Specific intent crimes are intention only, whilst basic intent crimes can be committed either intentionally or recklessly
65
Voluntary intoxication- specific
The defence is available for specific intent crimes I the D was so intoxicated that they could not form the relevant mens rea (intention)
66
Voluntary intoxication- basic
the defence is not available as the fact that the D got voluntarily intoxicated is evidence of recklessness and the crime is complete.
- However, (Richardson&Irwin) states that the defence may be available as long as the D would not have seen the risk even if they were sober.
67
Voluntary intoxication side rule
- Side rule - Dutch courage- Gallagher rules that the defence is not available a the D had already formed the mens Rea before they became intoxicated
68
Involuntary intoxication introduction
- D may be able to argue the defence of involuntary intoxication. This is where the defendant was either drugged or is a result of side effects of a medicine
69
Involuntary intoxication application
- Kingston rules that the defence is available for specific and basic intent crimes, as long as the D was so intoxicated that they could form the relevant mens Rea, as a drugged intent is still intent.
70
Involuntary intoxication side rule
- Side rule- Unexpected side effect of a prescription drug- Defence is still available as long as the side effects are still unexpected (Hardie)
71
Insanity introduction/ definition
- D may be able to argue the defence of insanity
- Section 1 of the Criminal Procedures (Insanity and unfitness to plead) Act 1991 states that there must be evidence from two doctors, one of whom must be an expert in mental health.
- M'Naghten defined the defence of insanity as having three stages:
1- D must be suffering from a defect of reason
2- This must be caused by a disease of the mind
3- The defect of reason must cause the D to not understand the nature of their actions, or that what they did was legally wrong
72
Insanity stage 1
- The D must be suffering from a defect of reason- this means that the D's ability to reason is impaired. It must be more than temporary absentmindedness or confusion (Clarke)
73
Insanity stage 2
- The defect of reason must be caused by a disease of the mind. This covers any physical or mental disease which affects the operation of the mind. Insanity is caused by a internal factor. It must affect the memory, reasoning, and understanding (Kemp)
- Explain and apply the disease of the mind which the D is suffering from.
74
Examples of diseases of the mind under the defence of insanity
- Epilepsy (Sullivan)
- Sleep Walking (Burgess)
- Schizophrenia
- Chronic depression
- Diabetes- Hyperglycaemia (High Blood Sugar)(Hennessy)
75
Stage 3 of insanity
The defect of reason must cause the D to not understand the nature and quality of their actions(Oye), or that what they were doing was legally wrong (Windle).
76
Explain verdict if defence of insanity is successful
- Special Verdict- if successful, this will lead to a special verdict of not guilty by reason of insanity
-Since the Criminal procedure (Insanity and Unfitness to plead) Act 1991, hospitalisation is only mandatory for murder, it is at the judges discretion for all other crimes
77
Automatism introduction/ definition
- D may be able to argue the defence of automatism
- Lord Denning in (Bratty) defined automatism as, "An act done by the muscles without any control of the mind"
- Automatism is caused by an external factor
78
Stage 1 of automatism
- The D must have lost full control of their actions, caused by an external factor
- Explain and apply which of the external factors is relevant to the defendant
79
Automatism- examples of external factors
- Reacting to swarm of bees/ spasm/reflex/ sneezing (Hill vs Baxter)
- Diabetes- Hypoglycaemia (Quick)
- Sneeze(Whooley)
- Concussion from a blow to the head
-Hypnotism
- Effects of a medication such as anaesthetic
80
Stage 2 of automatism
- The D must have no mens rea for the crime. This means that the D did the actus reus of the crime involuntarily (Broome vs Perkins)
81
Automatism side rule
- Self- induced automatism- If the D was aware that their actions or omission would result in an automatic state (Bailey)
- The defence works differently based on the crime:
- Can be used for specific intent crimes
-Cannot be used for basic intent crimes- as this is evidence of recklessness
82
Attempts introduction/ definition
- The D may be liable for an attempted crime
- An attempt is defined under Section 1 of the Criminal Attempts Act 1981 as, "Where a D does an act which is more than merely preparatory, with the intention to commit the full crime"
83
Stage 1/ Actus Reus of Attempts
- Firstly, the D must do an act which is more than merely preparatory (Jones)
-Key case- Geddes- 2 questions to answer:
1- Had the accused moved from planning and preparation to execution or implementation?
2- Had the accused done an act showing that he was actually trying to commit the full offence
- Exam tip= Look at the last act done by the D in the commission of the offence. Is the act enough to show beyond doubt that the D would have committed the full offence.
84
Mens Rea of attempts
-The D must intend to commit the full offence, recklessness is not enough (Mohan)
- Exam tip- If it is murder, the D must intend to kill the victim, intention to cause serious harm is not enough (Whybrow)
85
Explain the Applicable defences for attempts
- Attempting the impossible will never succeed under the Criminal Attempts Act 1981 (Shivpuri)
- Withdrawal can succeed as long as the D has not done an act which was more than merely preparatory, if he has then the defence will fail (Taylor)
86
Duress by threats stage 1
- Firstly, the D must satisfy the two part test established in in Graham, which establish whether the D should have resisted the threats:
1- Did the D act because he reasonably believed that they or another would have suffered death or serious injury? (Subjective)
2- Would a "sober person of reasonable firmness", but sharing the D's characteristics, have responded by committing a criminal offence (Objective)
- Bowen rules that relevant characteristics include age/ pregnancy/ physical ability/ mental disability
87
Duress by threats stage 2
- The threat must be of death or serious injury. Threats against property are not enough (Valderama-Vega)
-Apply
88
Duress by threats stage 3
- The threat must be against the D or someone they are responsible for (Wright)
-Apply
89
Duress by threats stage 4
- The threat must be immediate so that the D does not have time to alert the authorities (Bathcelor)/ the threat must be imminent
-Tip- does the D feel as though they are being watched?
90
Duress by threats stage 5
- D must have committed a crime which was nominated by the person making the threat- there must be nexus between the threat and the crime committed (Cole)
91
Duress by threats side rule
- Self induced duress- If the D brought the pressure on themselves (e.g. by joining a gang) they will lose the defence (Hasan)
-Side rule= does not work for Murder (Howe) or attempted murder (Goss)
92
Duress by circumstance stage 1
- Duress by circumstance can be used for an act, which would ordinarily be considered a crime as long as the D can prove the following:
1- The act was done to avoid the consequence which could not otherwise be avoided, and if they had been followed, would have inflicted inevitable and irreparable evil upon themselves or others (Re A)
2- No more was done than reasonably necessary
3- The evil inflicted was not disproportionate to the evil avoided
93
Duress by circumstance- Additional elements
- Following the case of Martin, the courts stated that as well as the above, the following must also be proven in court, in order for duress by circumstance to Succeed:
1- From an objective point of view, the accused acted reasonably and proportionately to avoid a threat of death or serious harm
2- Graham (Duress by threats) must also be applied:
-Due to the circumstance D found himself in, did he act because he
reasonably believed that they or another would suffer death or
serious injury?- subjective- upheld in Cairns
-Would a "Sober person of reasonable firmness", but sharing the D's characteristics, in the same circumstance as the D, have responded by committing a criminal offence?(Objective)
