ECRL MOD 1-4 Flashcards by C P

Definition of Crime

A crime is an act (something done) or
omission (something not done) that is
against the law and punishable upon
conviction.
Something is a crime if declared as such by statute or by common law.
It is harmful not only to some individual but also to a community, society or the state.

How well did you know this?

Not at all

Perfectly

Objectives of Criminal Law
- Retribution – criminals ought to suffer in
some way.
- Deterrence – individual deterrence is
aimed toward the specific offender.
- Incapacitation – to keep criminals away
from society in order to protect the public.
- Rehabilitation – aims at transforming an
offender into a valuable member of society.
- Restoration – to repair any injury inflicted
upon the victim by the offender.

How well did you know this?

Not at all

Perfectly

American Model Penal Code
- To forbid and prevent conduct that
unjustifiably and inexcusably inflicts or
threatens substantial harm to individual or
public interests.
- To subject to public control persons whose
conduct indicates that they are disposed to
commit crimes.
- To safeguard conduct that is without fault
from condemnation as criminal.
- To give fair warning of the nature of the
conduct declared to be an offence.
- To differentiate on reasonable grounds
between serious and minor offences.

How well did you know this?

Not at all

Perfectly

Elements of Crime
- Actus Reus – guilty act (conduct)
- Mens Rea – guilty mind (intent)
- Concurrence – actus reus and mens rea
MUST occur at the same time
- Causation – the guilty act MUST result in
actual harm

How well did you know this?

Not at all

Perfectly

Types of Offences

Crimes against the person, e.g. assault,
battery, false imprisonment, harassment,
intimidation, manslaughter, murder.

How well did you know this?

Not at all

Perfectly

Types of Offences

Sexual offences, e.g. incest, obscenity,
rape, sexual assault.

How well did you know this?

Not at all

Perfectly

Types of Offences

Crimes against property, e.g. arson,
burglary, criminal damage, fraud, robbery,
theft.

How well did you know this?

Not at all

Perfectly

Types of Offences

Crimes against justice, e.g. perjury,
perverting the course of justice.

How well did you know this?

Not at all

Perfectly

Types of Offences

Crimes against the public, e.g. terrorism,
riot, obstruction of highways.

How well did you know this?

Not at all

Perfectly

Types of Offences

Crimes against animals, e.g. animal fight,
cruelty to animals.

How well did you know this?

Not at all

Perfectly

Types of Offences

Crimes against the state, e.g. treason,
espionage.

How well did you know this?

Not at all

Perfectly

Types of Offences

Participatory offences, e.g. accomplice,
joint enterprise, inchoate offence.

How well did you know this?

Not at all

Perfectly

Summary Trial

It takes place in a magistrates’ court.
It is a quicker and less expensive alternative to a full trial.
It works best when the defendant agrees on
the facts but disagrees on what the result
should be based on those facts.
Evidence is provided to the judge in the
form of affidavit which is a written
statement sworn to be true from an
individual.
The judge will review the affidavits and
will make a final order based on the
information.

How well did you know this?

Not at all

Perfectly

Trial on Indictment
- It takes place in the Crown Court.
- The defendant is tried before a judge and a
jury.
- An indictment is the formal document
outlining a specified indictable offence.
- It is more time-consuming and expensive,
so it is reserved for more serious crimes.

How well did you know this?

Not at all

Perfectly

Triable Either Way
- It is a trial of summary or indictable
offences.
- A criminal offence that can be heard in a
magistrates’ court or the Crown Court.
- If the magistrates decide their sentencing
powers are sufficient to deal with the
offence, the defendant may elect to have it
dealt with summarily in the magistrates’
court or on indictment (trial by jury) in the
Crown Court.

How well did you know this?

Not at all

Perfectly

Charge
- It is a formal allegation made by the
prosecution against a person accused of
having committed a specific criminal
offence.

How well did you know this?

Not at all

Perfectly

Undercharging – it refers to a situation
where the prosecutor charges a suspect with
a criminal offence that is less severe or
carries a lower penalty than the crime he
has allegedly committed. It happens mostly
because the prosecutor does not have
sufficient evidence to support a more serious charge. Undercharge is easier to prove and may encourage a guilty plea. The prosecution of summary trial is less costly and more efficient because it may enable the case to be heard summarily rather than on indictment. However, it may lead to a situation where a suspect faces inadequate legal consequences for his actions, potentially resulting in an unjust outcome and undermining public confidence in the criminal justice system.

How well did you know this?

Not at all

Perfectly

Overcharging – it refers to a situation
where the prosecutor charges a suspect with a criminal offence that is more serious or carries a higher penalty than the crime he has allegedly committed. It happens mostly because the prosecutor misinterprets the evidence or wants to exert pressure on the suspect. Facing the prospect of severe charges, the suspect may be more inclined to negotiate a plea bargain for lesser charges, even if he believes he is innocent. Overcharging can be problematic because it can lead to inflated penalties, wrongful convictions, undermining public confidence in the criminal justice system. Defendants may be unfairly punished for crimes they did not commit or for actions that do not merit such severe consequences.

How well did you know this?

Not at all

Perfectly

Roles of Judge
- He is the trier of law, interpreting and
applying the law.
- He preside over the trial and maintains
order in the courtroom.
- He provides instructions to the jury
regarding the applicable law and legal
standards.
- He decides what evidence can be admitted
and presented to the jury.
- If the defendant is found guilty, he is
responsible for imposing a sentence.

How well did you know this?

Not at all

Perfectly

Roles of Jury
- The jury is a group of jurors who take up
the role of fact finders (i.e. triers of fact).
- They listen to the evidence presented in
court by the prosecution and the defence.
- They determine whether the defendant is
guilty or innocent based on the evidence.
- After the trial, they retire to deliberate in
private to reach a verdict.
- Deliberation involves discussions, analysis of the evidence, and consideration of legal instructions provided by the judge.
- They are expected to remain impartial,
unbiased, and free from any preconceived
notions or biases that could affect their
judgment.

How well did you know this?

Not at all

Perfectly

Jury Direction
- The judge will guide the jury on what
evidence is admissible.
- The judge will sum up and review the facts
for the jury.
- The judge will tell the jury that the standard
of proof is beyond reasonable doubt and the
burden of proof is at all times on the
prosecution unless it is reversed.
- The judge will then explain to the jury what
the law is and the facts they have to find to
sustain a conviction.

How well did you know this?

Not at all

Perfectly

Appeal
- If the judge makes a mistake in directing
the jury or applies the wrong law or
principle, this can be appealed on the
ground of misdirection.
- Appeals from the Crown Court are heard
by the Court of Appeal (criminal division).
- Appeals from the Court of Appeal are heard
by the Supreme Court.

How well did you know this?

Not at all

Perfectly

Sources of Criminal Law
- Criminal law derives from traditional
common law of crimes, so it was once
judge-made law, known as common law
offences.
- However, the majority of criminal offences
have now been codified in statute as
statutory offences.
- Those that were not codified in statute have
largely been abolished but some of them
are still effective.

How well did you know this?

Not at all

Perfectly

Codification of Criminal Offences
- Common law offences were seen as
unacceptably vague and open to
development by the courts in ways that
might create certainty.
- The Law Commission is an independent
body set up by Parliament to keep the law
under review and to recommend reforms.
- Its codification of criminal law aims to
abolish all the remaining common law
offences and replacing them with offences precisely defined by statute.
- However, neither the Law Commission nor
the UK Parliament have completed the
necessary revisions of the law, so some
common law offences still exist.
- In England and Wales, unless a specific
maximum sentence has been codified,
common law offences are punishable by
unlimited fines and unlimited
imprisonment

How well did you know this?

Not at all

Perfectly

Principles of Criminal Law Principle of minimal criminalisation – Conduct should be criminalised only when absolutely necessary. Only offences that are seriously enough should be criminalised, rather than trivial ones.

Principles of Criminal Law Principle of proportionality – punishment for a given crime should be proportional to and reflect the seriousness of the crime.

Principles of Criminal Law Principle of fair labelling – the description of the offence should match the wrongdoing and reflect distinctions in the nature and seriousness of the crime.

Principles of Criminal Law Principle of certainty – the law must be clear, precise and unambiguous so that its legal implications can be foreseeable.

Principles of Criminal Law Presumption of innocence – every defendant is presumed innocent until proven guilty by the prosecution beyond a reasonable doubt.

Principles of Criminal Law Double jeopardy – a person should not be tried twice for the same offence after being acquitted or convicted.

2. Criminal Liability CRIMINAL LIABILITY

Elements of Crime Mens Rea – it is the mental element of a person’s intention to commit a crime (i.e. guilty mind, criminal intent).

Elements of Crime Actus Reus – it is the external element of a person’s unlawful conduct or omission of an act (i.e. guilty act, criminal act).

Elements of Crime Concurrence – mens rea and actus reus must occur simultaneously to constitute a crime, except for crimes of strict liability where only actus reus is enough to impute guilt.

Elements of Crime Causation – the actus reus must proximately cause actual harm, except for inchoate offense where the criminal attempt is not complete but actual harm would be resulted upon completion.

Elements of Crime Criminal Liability - There must be a criminal act or omission for the imposition of criminal liability to the actor. - If the law imposes a duty to act, a failure to do so will result in criminal liability (i.e. criminal omission). - The most important element for a crime is actus reus, without which no criminal liability can be imposed because there will not be concurrence and causation. - Only mens rea can never constitute a crime, as a person cannot be held liable for just thinking about committing a crime.

Blameworthy States of Mind Direct intention – the actor has a clear foresight of the consequences of his actions, and desires those consequences to occur. It is his aim, purpose or intent to achieve this consequence, e.g. murder.

Blameworthy States of Mind Oblique intention – it is the indirect intent of the virtually certain consequence of the defendant’s actions, and that the defendant appreciates that such was the case.

Blameworthy States of Mind Knowledge – the actor knows, or should know, that the results of his conduct are reasonably certain to occur.

Blameworthy States of Mind Recklessness – the actor foresees that particular consequences may occur and proceeds with the given conduct, not caring whether those consequences actually occur or not.

Blameworthy States of Mind Criminal negligence / carelessness – the actor did not actually foresee that the particular consequences would flow from his actions, but a reasonable person, in the same circumstances, would have foreseen those consequences.

Criminal Defences - Some criminal acts are not wrongful under special circumstances or are reluctantly conducted under threats - Therefore, it would be unfair to punish the defendant without considering those circumstances which can mitigate or eliminate criminal liability.

Criminal Defences Diminished responsibility – a partial defence to a crime committed due to impairment of mental functions.

Criminal Defences Insanity – a deranged state of mind that makes the defendant unable to understand what he was doing.

Criminal Defences Automatism – a state where the muscles act without any control by the mind, or with a lack of consciousness.

Criminal Defences Intoxication – substance intoxication leading to diminished responsibility.

Criminal Defences Mistake of fact – a misunderstanding of some fact that negates the mental element of the crime.

Criminal Defences Duress – involuntary criminal conduct due to the circumstances or threats of another.

Criminal Defences Necessity – necessary conduct to prevent some greater harm.

Criminal Defences

Criminal Defences Provocation – it is a mitigating factor in sentencing that the defendant was incited to act.

Criminal Defences Self-defence – use of reasonable force to defend one’s own life or the lives of others.

Criminal Defences Defence of property – use of reasonable force to protect one’s own property.

Criminal Defences Consent – when the victim voluntarily agrees to the proposal or desires of another.

Criminal Defences Entrapment – a law enforcement agent induces a person to commit a crime that he would have otherwise been unlikely or unwilling to commit. It is not a criminal defence in itself but an abuse of the process of the court for state agents to lure a person into committing an illegal act and then seek to prosecute him for doing so. In this case, there is good reason to question the credibility of the evidence and argue that the case should not be brought at all.

Burden of Proof - A person is considered innocent until proven guilty. - The burden of proof is generally on the prosecution. - The prosecution must prove all the elements that constitute the crime for which the defendant is prosecuted, as in Woolminton v DPP (1935).

Criminal Standard of Proof - The prosecution must prove each element of the offence beyond reasonable doubt. - This means that the evidence presented must be so convincing that no reasonable person could have any doubts about the defendant’s guilt. - The jury or magistrates must not convict unless the prosecution has made them sure that all the elements of the offence are present and proved beyond reasonable doubt.

Reversing Burden of Proof - When there is enough circumstantial evidence to prove the guilt of the defendant, the burden of proof is reversed to the defendant to disprove his guilt. - For example, the defendant with a weapon in hand was seen running away from the crime scene, and the weapon was found to be tainted with blood of the person who was killed in a murder. - Even if no one witnessed the murder, this circumstantial evidence is enough to allow the jury to infer that the defendant was the murderer. - In this case, the defendant needs to prove that he is not the murderer. - Once the burden of proof is reversed, the standard of proof is a balance of probabilities (i.e. it is more likely that the defendant did not kill the person), which is a standard of proof in civil cases.

STRICT LIABILITY CRIMES

Strict Liability Crime - It does not require the proof of the mental element of crime, i.e. mens rea. - The defendant is presumed to have the mens rea for the offence. - It only requires voluntary act or omission of an act to constitute actus reus for conviction. - Strict liability crimes are primarily statutory offences.

Absolute Liability Crime - Many so called strict liability crimes in fact require some form of mens rea. - The element of mens rea is often specified in statute, such as ‘willfully’, ‘knowingly’, ‘recklessly’, ‘carelessly’. - Therefore, this mental state needs to be proved even though it is a strict liability offence. - However, for absolute liability crimes, proof of mens rea is not required at all. - The prosecution just needs to prove the actus reus for conviction. - Absolute liability crimes are primarily regulatory offences, also known as quasicriminal offence. - In English criminal law, the distinction between strict liability and absolute liability is not always clear, and many absolute liability crimes are simply referred to as strict liability crimes.

Disadvantages of Strict Liability - Crimes of strict liability may lead to controversial convictions as a person may be liable even if he is not at fault or has taken reasonable care. - It may sometimes be unjust and unfair to the defendant as he may not have the blameworthy state of mind or may not be aware of the risk. - In Callow v Tillstone (1900), despite having followed the food safety procedure, a butcher was convicted of selling unfit meat which was a strict liability crime at that time. - In Environment Agency v Empress Car (1998), the company unaware of the leak caused by a hidden defect in a seal was held liable for the pollution caused. - In R v G (2008), a 15-year-old boy was found guilty of the offence of rape of a child under 13 after raping a 12-year-old girl though he had reasonable grounds to believe that she was 15.

Advantages of Strict Liability - Despite its controversy, strict liability is generally accepted as it brings a number of practical benefits, such as the need to ensure that the health and safety of the public are properly protected. - Crimes of strict liability are easier to prove because mens rea is not required, saving the prosecution and courts a lot of time and resources. - As defences to crimes of strict liability are more difficult, it promotes compliance with laws and regulations by making clear what acts should not be committed or omitted

Solutions to Problems of Strict Liability - For crimes that are statute-based, whether the defendant is strictly liable often depends on statutory interpretation. - In order to strike a balance between the pros and cons of strict liability, courts generally presume that mens rea is required unless specified in statute or case law.

Sweet v Parsley (1970) - The court established the presumption that criminal offences require mens rea for conviction. - If the statue is reasonably capable of two interpretations, the one that is most favourable to the defendant must be adopted. - If there is a lack of clear indication in the Act as to whether the offence is an absolute offence, it is necessary to go outside the Act to find out the intention of Parliament.

Gammon v A-G of Hong Kong (1985) - The court reaffirmed the presumption that mens rea is required for criminal offences. - The presumption is particularly strong where the offence is a true crime (i.e. crimes that are not quasi-criminal offences). - The presumption can be displaced if the Act clearly, or by necessary implication, indicates strict liability. - The presumption can also be displaced if the issue is of social concern, such as public health and safety. - The presumption stands unless strict liability can better achieve the objective of the statute. - If one subsection of the Act creates an offence of strict liability, this does not mean the other section will follow. - The presumption can be displaced if the offence is a regulatory offence or carries a small penalty.

Nurse and Anor v Republic of Trinidad and Tobago (2019) - The court reaffirmed the presumption that mens rea is the ingredient of every offence. - If the Act lacks a clear indication that the offence is intended to be absolute, it is necessary to go outside the Act to establish this was the intention of Parliament. - If there are two reasonably capable statutory interpretations, the one that is most favourable to the defendant must be adopted. - Serious penalties militate against (prevent) offence being of strict liability. - Whether it is a regulatory offence and the severity of the penalty should be considered when deciding whether mens rea is required. - Some offences, in same context, may require mens rea whilst others do not. - Potential for unfairness to luckless victims weighs against strict liability. - Strict liability may be warranted for offences of public interest. - In deciding whether presumption of mens rea is rebutted, the court must consider the requirement for mens rea in other respects or other offences in the same sections, severity of penalties and stigma of conviction, and importance in public interest. - The public interest factor can outweigh the other factors. - Offence only imposes absolute liability if none of its elements requires mens rea.

ACTUS REUS

Elements of Actus Reus - Conduct (always required) - Any circumstances necessary to render that conduct wrongful (if any are required) - Result (if any is required)

Act Requirement - There can be no criminal liability if the defendant has done nothing. - The act alone may be criminal regardless of the result of the act, i.e. strict liability. - Common conduct crimes where an act is required include perjury, theft, making off without payment, rape and possession of drugs or a firearm. - For conduct that meets the act requirement, the act must be voluntary.

Involuntary Act - It is conduct which is done by the muscles without any control by the mind. - It tends to incur no criminal liability. - It can be resulted from diminished responsibility, insanity or automatism.

Automatism - It refers to conduct performed by someone who has no control over. - It is commonly defined as spasms, reflexes, convulsions or acts committed in a state of unconsciousness, such as sleepwalking in R v Burgess (1991). - But it can also be a dissociative state due to external factor such as post-traumatic stress disorder from being raped, as in R v T (1990). - It is divided into sane automatism and insane automatism, both of which can be used as a defence to criminal liability.

How to Identify Actus Reus - Find the definition of the crime. - Distil the actus reus from that definition. - Identify the act of the defendant which you are to rely on in establishing that actus reus. - For example, under S67(1) of the Sexual Offences Act 2003, the offence of voyeurism is committed if for the purpose of obtaining sexual gratification, a person observes another person doing a private act. - In this case, the act of observing is the actus reus of the offence of voyeurism.

Crime without Act Requirement - It is a conduct crime that does not require proof of harm. - It requires proof of some form of wrongful conduct. - It does not require anybody to be hurt. - Crimes without the act requirement include situational crimes, crimes of possession, crimes of omission.

Situational Crime - It is a criminal offence for a person found to be in a prohibited situation. - A person is liable for being an illegal alien (i.e. illegal immigrate), as in R v Larsonneur (1933). - A person is liable for being drunk in charge of a car in Duck v Peacock (1949). - A person is liable for being found drunk on the highway in Winzar v Chief Constable of Kent (1983).

Crime of Possession - It is a criminal offence for a person found to be in possession of a prohibited article. - A person is liable for possession of firearms, as in R v Deyemi (2008).

Crime of Omission - An omission can amount to the actus reus of a crime. - This is commonly a statutory strict liability offence for regulatory purposes, but it can also be a common law crime. - It is a criminal offence for a person not to act where there exists a duty imposed by law or by statute. - A person has a statutory duty to act as the statute requires, but this duty can also be imposed by common law.

Crime of Omission In R v Miller (1983), the defendant had created a dangerous situation and owed a duty to call the fire brigade upon becoming aware of the fire. He was therefore liable for his omission to do so.

Crime of Omission In R v Stone & Dobinson (1977), the defendants were held liable for the death of the sister of one of the defendants as there was an assumption of responsibility for them to look after her, including providing medical help she needed.

Crime of Omission In R v Dytham (1979), an on-duty police officer stood and watched a man beaten to death outside a nightclub. He then left without calling for assistance or summoning an ambulance. He was convicted of the common law offence of willful misconduct in public office.

Crime of Commission by Omission - Omission can be the conduct that constitutes an actus reus to satisfy the act requirement. - The result of the crime is caused by doing nothing, i.e. failure to act. - For example, a mother starves her baby to death by not feeding it. - R v Morby (1882), a child was dying of smallpox and the father refused to go for help as he thought that prayer would be enough, but the father was not liable eventually because the prosecution failed to prove beyond reasonable doubt that the child died because of neglect.

Liability for Failure to Act - The conduct must be capable of commission by omission. - The circumstances must be such as to create a legal duty to act. - The failure to act must be in breach of that duty. - The failure to act must be voluntary. - The harm must be caused by the omission.

How to Defense against Failure to Act - The defendant did as much as could be expected in the circumstances. - The performance of the duty was impossible. - The failure to act can be justified by arguing that doing so would create a dangerous situation for other people.

Result Crime - Sometimes, the conduct alone is not criminal without the result. - For example, throwing a stone is not a crime, but if the stone hits a person, it will become a crime. - Result crimes require both wrongful conduct and harm. - There must also be a causal link between the wrongful conduct and harm. - The prosecution must prove the causation that the defendant’s conduct was the cause of the prohibited result.

Liability for Actus Reus - A person voluntarily initiates a causal sequence which ends in harm. - He will normally be held liable unless an act or event later renders the imposition of liability inappropriate. - For example, the chain of causation is broken by an intervening act, so the actus rea can no longer be seen as the cause of the harm.

English Criminal Code - A criminal code (or penal code) is a document that compiles all, or a significant amount of, a particular jurisdiction’s criminal law. - Typically, a criminal code will contain offences that are recognised in the jurisdiction, penalties that might be imposed for these offences, and some general provisions. - Unlike other jurisdictions such as the US, English criminal law does not provide a criminal code, though such an instrument has often been recommended and attempted. - For example, the Criminal Code Bill 1989 was drafted and made a number of recommendations, but it did not come to fruition.

What is the ‘act' requirement’?

Generally, the rule is that to form actus reus, there must be a positive, physical act which causes the harm. (Generally, all offences have such external elements)

What are the three exceptions to the act requirement?

- Situational Liability (R v Larsonneur, Winzar v Chief Constable of Kent) - Possession Liability (R v Warner, R v Okoro) - Omissions (See below)

What are the conditions of liability for a crime of commission in respect of an omission to act?

-The act of commission must be capable of being committed by omission -The situation must give rise to a legal duty to act -The omission must be a breach of that duty -The omission must be voluntary -The omission must be the cause of the harm

Under what circumstances will a duty to act arise?

- Statutory situations (Children and Young person’s act 1933) - Special Relationship (R v Lowe, R v Gibbins [R v Gibbins and Proctor] - Voluntary Assumption of Duty (R v Instan) - Contractual (R v Pittwood) - Medical profession (Airedale NHS Trust v Bland) - Public Official (R v Dytham) - Creating a dangerous situation (R v Miller, R v Evans) Continuing acts (Fagan v MPC)

What is the difference between an act and an omission?

An act is a voluntary, external act which causes the harm An omission is the failure to perform a duty to act so that it causes harm.

Why is criminal liability for omissions controversial?

In brief, Criminal liability for omissions is controversial because it exposes people to liability for doing nothing. It is a delicate balance between collective interests and individualism, seen by some as an attack on personal autonomy There is also the question of overreach in assigning criminal liability to moral expectations. Finally, the crimes of commission by omission may run counter to the legality principle which should allow people the reasonable ability to know what is permitted and what is proscribed, legally.