intro to criminal liability Flashcards
1
Q
actus reus
A
the physical element of a crime
2
Q
3 types of actus reus
A
- voluntary act causing a consequence
- voluntary omission resulting in a consequence
- D being in a certain state of affairs
3
Q
what must Ds act/omission be to have committed the actus reus
A
voluntary
4
Q
is D at fault if he has no control over his actions
A
no, he has not committed the actus reus
5
Q
in which case did the court give examples where a driver of a vehicle could not be said to be doing the act of driving voluntarily
A
HILL V BAXTER
6
Q
which examples were given in HILL V BAXTER where a driver could not be guilty of a driving offence
A
where a driver lost control of his vehicle because he was:
- stung by a swarm of bees
- struck on head by a stone
- had a heart attack whilst driving
7
Q
when can involuntary conduct occur
A
in assaults
8
Q
if person A pushes person B and they bump into the victim, is Bs conduct voluntary?
A
involuntary and they would not be guilty of any assault
9
Q
in which situation may defence of insanity/automatism be available
A
where D hits V due to a reflex action/muscle spasm- D not in control of his body
10
Q
in which situation may the defence of duress be available
A
if there is a threat that D will be killed if he doesn’t commit an assault- Ds conduct viewed as involuntary and there will be an absence of fault
11
Q
where the actus reus requires a consequence to be proved, what do the prosecution have to show?
A
- Ds conduct was factual cause of consequence
- Ds conduct was legal cause of consequence
- no intervening act which broke chain of causation from Ds conduct to consequence
12
Q
when will D be a factual cause of the consequence
A
if the consequence wouldn’t have happened ‘but for’ Ds conduct
13
Q
case illustrating factual cause
A
PAGETT
14
Q
PAGETT
A
she would not have died ‘but for’ him using her as a shield in the shoot out
15
Q
when will D be a legal cause of a consequence
A
if Ds conduct was more than a ‘minimal’ cause of the consequence. others may contribute to consequenc.
16
Q
which case illustrates legal cause
A
BENGE
17
Q
BENGE
A
D was still a legal cause of the deaths as his conduct was more than a minimal cause
18
Q
what must there be from Ds conduct to consequence in causation
A
a direct link ie. no intervening act which breaks this chain of causation
19
Q
rule on causation regarding third party and case
A
where Ds conduct causes reasonably foreseeable action by third party: chain of causation will remain unbroken: PAGETT
20
Q
rule on causation regarding medical negligence and case
A
medical negligence is unlikely to break the chain of causation unless it is so independent of Ds act and ‘in itself so potent in causing death’ that Ds acts are insignificant- CHESHIRE
21
Q
CHESHIRE
A
the medical complications were a direct consequence of the shooting and Ds act was still a significant cause of Vs death
22
Q
rule on causation relating to Vs own conduct and case
A
vs own conduct unlikely to break chain of causation unless it is so daft that a reasonable person would not have foreseen V reacting in that way - ROBERTS
23
Q
ROBERTS
A
D was held to be liable for Vs injuries as her reaction was reasonably foreseeable
24
Q
rule on causation relating to thin skull rule and case
A
chain of causation wont be broken if V has something unusual about them which makes them more vulnerable. d must take V as he finds him- BLAUE
25
BLAUE
he had to take the victim as he found her
26
what is normal rule on omission
an omission cannot make a person guilty of an offence
27
exception to general rule of an omission relating to statutory duty and example
a statute may require D to act and omitting to do so will satisfy actus reus- eg motorist driving with no insurance under ROAD TRAFFIC ACT commits an offence
28
exeception to general rule on omission relating to common law
common law may require D to act and omitting to do so will satisfy actus reus
29
examples of common law requiring D to act and omitting will satisfy actus reus
- contractual duty to act: pitwood
| - D under duty to act because he has set in motion a chain of events: dpp v Santana bermudez
30
PITTWOOD
the keeper was guilty of manslaughter because of the duty to act arising from his contract of employment
31
DPP V SANTANA BERMUDEZ
D liable for ABH because he had a duty to prevent the harm to the police officer by warning her about the needle and failed to do so
32
what is mens rea
the mental element of an offence- the 'guilty mind'. each offence has its own mens rea
33
what must the prosecution prove in relation to mens rea to find D guilty
that D had the relevant mens rea for the offence charged
34
what are the only exceptions to the rule that prosecution must prove D had relevant mens rea to find him guilty
offences of strict liability- don't require proof of mens rea in respect of at least part of AR
35
why are there different levels of mens rea
so the law can identify the degree to what a person is at fault for their actions. to be guilty d must have at least minimum level of mens rea required by definition of offence
36
when does D directly intend a result and case
where it is his aim/purpsose. D actually desires the result that occurs and sets out to achieve it: MOHAN
37
when does D indirectly intend a result and case
where that result is not desired but was virtually certain to occur AND D KNOWS THIS: WOOLIN
38
when will d have acted recklessly and case
where he knows there was a risk of result happening but takes that risk: cunningham
39
Cunningham:
D was not liable since he didn't know there was a risk of gas escaping into Vs house. he had not intended to cause harm nor had he taken a risk he knew about
40
how can D still be guilty where his mens rea is directed at one person but he harms someone else
Ds state of mind is transferred to the actual victim
41
which case illustrates Ds state of mind transferred to the victim:
latimer
42
latimer
his intention to harm the man was transferred to the actual victim
43
when is the principle of transferred malice not available to make d guilty
where Ds mens rea is for a completely different type of offence
44
which case illustrates that transferred malice is not available to make D guilty where Ds mens rea is for a completely different type of offence
pembilton
45
pembilton
he was not liable for the damage to the window because his intention to hit people could not be transferred to property
46
when must the actus reus and mens rea be present in order for an offence to take place usually
at the same time
47
what is the where the actus reus is a continuing act
if at some point, while the act is still going on, D has the necessary mens rea- the two do coincide and d will be guilty
48
case to support the coincidence rule
fagan
49
fagan
the court held that once D knew the car was on the officers foot he had the required mens rea. as AR was still continuing, the two elements of the crime were present together
50
what are the two exceptions where d will still be guilty of an offence even though AR and MR are not present at same time
- AR part of some larger transaction
| - d has become voluntarily intoxicate and commits an offence that can be committed recklessly
51
what is the exception to the coincidence rule where the actus reus is part of some larger transaction and case
it will be sufficient that D forms mens rea at some point during that transaction- CHURCH
52
CHURCH
d liable for involuntary manslaughter. AR was part of a larger transaction and D formed mens rea at one point during that transaction- when D struck V in van.
53
what is the exception to the coincidence to the coincidence rule where D voluntarily becomes intoxicated and then commits an offence that can be committed recklessly and case
his intoxication is not a defence. D seen as reckless in getting intoxicated in first place so has the mens rea for the later offence- DPP V MAJEWSKI
54
DPP V MAJEWSKI
H/L upheld his convictions for various assaults, all of which could be committed recklessly
55
how does voluntary intoxication exception ignore the principle that AR and MR must coincide
the decision to drink may be several hours before D commits AR of offence
56
what does an offence of strict liability mean
one where the prosecution need not prove mens rea for at least part of the actus reus
57
in what manner must D have committed actus reus for strict liability
voluntary but need not be at fault. D can be ;iable for the offence even though he/she didn't have guilty mind at the time they committed the guilty act
58
HARROW LONDON BOROUGH COUNCIL V SHAH (SL)
Ds were liable for selling a lottery ticket to a person underage
offence didn't require any mens rea
act of selling ticket to someone under 16 enough to make them guilty even though theyd done their best to prevent this happening in their shop
more important to try and deal with problem of young people gambling than insist upon proof of mens rea
59
CALLOW V TILLSTONE (SL)
D convicted of exposing unsound meat for sale, even though he wasn't an fault
60
who are most strict liability offences created by
parliament
61
what may a statute make clear (sl)
whether or not a crime is one of strict liability
62
what is the presumption where a statute doesn't make clear whether or not a crime is one of strict liability
the case of GAMMON means that the courts will start by presuming that the prosecution must prove mens rea
63
when will the presumption that prosecution must prove mens rea be set aside and strict liability imposed
where the statute involves an issue of social concern
64
for which offences is the presumption that mens rea must be proved most often set aside
offences which are regulatory in nature as these are not thought of as being truly criminal matters eg food safety and prevention of pollution
65
what Is the correlation between social danger and likelihood that strict liability will be imposed
the greater the social danger, the more likely strict liability will be imposed- particularly if it would be effective in promoting higher standards
66
which case illustrates that social danger will mean strict liability is likely imposed
ALPHACELL V WOODWARD
67
ALPHACELL V WOODWARD
there was no evidence that the company had been negligent, but they were strictly liable because it was of utmost public importance that rivers shouldn't be polluted
68
3 reasons for having offences of strict liability
- helps protect society
- easier to enforce
- saves court time
69
how do strict liability offences help protect society
it makes sure that businesses are run properly
70
why is it easier to enforce strict liability offences
there is no need for prosecution to prove mens rea eg alphacell
71
how does strict liability save court time
ds more likely to plead guilty so that no trial is required. fact that D may not be blameworthy can be taken into account when sentencing
72
what is a crime of absolute liability
in addition to mens rea not needing to be proved, the AR can be involuntary- such crimes are rare and AR is a state of affairs
73
case illustrating absolute liability
WINZAR V CHIEF CONTABLE KENT
74
WINZAR V CHIEF CONSTABLE OF KENT
the court upheld his conviction because this was an offence of absolute liability, designed to deal with the nuisance of public drunkenness. it did not matter than d had been taken to highway against his will
75
s.39 criminal justice act
assault/battery
76
category and max sentence for assault/battery
summary/ 6 months
77
actus reus assault
where by an act/words causes v to apprehend immediate and unlawful force
78
which case states that immediate can mean imminent (assault)
SMITH V SWPS
79
which case states that AR for assault can be written
constanza
80
whch case states that AR for assault can be silent
IRELAND
81
mens rea assault
intention/recklessness as to causing v to apprehend immediate and unlawful force: VENNA
82
case to support mens rea for assault/battery
VENNA
83
actus reus battery
where ds act/omission applies unlawful force to v
84
which case states that AR for battery states that D need not touch vs body
THOMAS
85
which case states that AR for battery can be indirect
HAYSTEAD
86
mens rea battery
intention/recklessness as to applying unlawful force to V: VENNA
87
s.47 OAPA
assault occasioning ABH
88
category and max sentence s.47
ether way/ 5 years
89
actus reus abh
1. must first be an assault/battery
| 2. this must cause actual bodily harm
90
which case supports AR ABH
CHAN FOOK
91
CHAN FOOK
the word 'actual' means the injury should not be so trivial as to be wholly insignificant
92
mens rea ABH
intention/recklessness as to an assault/battery SAVAGE V PARMENTER
93
which case supports mens rea ABH
SAVAGE V PARMENTER
94
s.20 OAPA
malicious wounding/GBH
95
category and max sentence s.20
either way/5 years
96
actus reus wounding
any breaking of the skin JCC V EISENHOWER
97
case to support AR wounding
JCC V EISENHOWER
98
actus reus GBH
really serious harm: DPP V SMITH
99
case to support AR GBH
DPP V SMITH
100
which case states that the nature of the victim is relevant in AR GBH
BOLLOM
101
which case states that several minor injuries amount to really serious harm AR GBH
brown and stratton
102
which case states that AR of GBH can be psychological
burstow
103
mens rea for s.20
defined by the word maliciously. must be intention/recklessness that v might suffer some harm- MOWATT
104
which case supports mens rea for s.20
MOWATT
105
s.18 OAPA
malicious wounding/GBH with intent to cause GBH or resist/prevent arrest
106
category and max sentence s.18
indictable/life
107
actus reus s.18
same as s.20
108
mens rea s.18
intention to cause GBH or intention to resist/avoid arrest and recklessness as to GBH
109
what are the two courts which hear criminal trails
MC AND CC
110
how is the actual court for the trial decided
by the category of the crime involved
111
summary offence
- minor crimes eg assault
| - tried in MC only
112
indictable offence
- serious crimes eg s.18 OAPA
| - tried in CC only
113
either way offence
- middle range offences which can vary in degree of harm caused eg s.47 oapa
- may be tried at either court
114
pre trial procedure for ALL offences: after D has been arrested and charged by police what can they decide?
to release D from station on bail/keep them in custody until Ds first court appearance
115
pre trial procedure for ALL offences: what will the CPS advise the police on
whether there is enough evidence and if its in the public interest for case to proceed to court
116
pre trial procedure for SUMMARY offences ONLY: how will D be summoned to court where he hasn't been arrested and taken to police station
by post
117
pre trial procedure for SUMMARY offences ONLY: where are all summary offences tried?
MC
118
pre trial procedure for ALL offences: why may D be represented by at a first hearing
duty solicitor: paid by state to represent D at no cost to D
119
pre trial procedure for SUMMARY offences ONLY: what is the purpose of the first hearing
for D to enter a plea which could be guilty/not guilty
120
pre trial procedure for SUMMARY and INDICTABLE offences ONLY: what will happen if a guilty plea is entered
sentencing may take place immediately/ magistrates/judge may adjourn for pre sentence reports to be drawn up before they pass sentence
121
pre trial procedure for SUMMARY offences ONLY: what will happen if d enters a not guilty plea
proceedings likely to be adjourned for witnesses to be summoned to court and for D to obtain further legal advice
122
pre trial procedure for SUMMARY and INDICTABLE offences ONLY: what is the process around whether d should receive legal aid or not
- legal aid is to help fund advice and representation given by a solicitor
- must be in interests of justice for D to receive public funding and must pass a means test
123
pre trial procedure for ALL offences: what must the magistrates decide between court hearings
whether D should be released on bail until next court hearing or kept in custody (indictable- all transferred to crown court)
124
examples of summary offences
assault and battery, always tried in mc
125
pre trial procedure for INDICTABLE offences ONLY: what is the first hearing at the crown court after the case has been sent by the magistrates
plea and case management hearing
126
pre trial procedure for INDICTABLE offences ONLY: purpose of plea and case management hearing
ensure all necessary steps have been taken in preparation for the trial and sufficient information has been provided for a trial date to be arranged
127
pre trial procedure for INDICTABLE offences ONLY: what will d enter at a plea and case management hearing
a plea
128
pre trial procedure for INDICTABLE offences ONLY: what will happen if D pleads not guilty
preparations for trial will take place, including how many witnesses will be called and what exhibits will be produced at the trial
129
example of an indictable offence
s.18 OAPA- always tried in CC
130
what will jury decide on at indictable offence trial
guilt/innocence
131
what will the judge do if D is found guilty of an indictable offence
pass sentence
132
pre trial procedure for EITHER WAY offences ONLY: during what procedure is D asked whether he pleads guilty/not guilty to the offence
plea before venue and allocation procedure
133
examples of either way offences
s.20 s.47 OAPA
134
pre trial procedure for EITHER WAY offences ONLY: what must the magistrates decide if D pleads guilty
whether their sentencing powers are sufficient to sentence D or if the case should be committed to the crown court for sentence
135
pre trial procedure for EITHER WAY offences ONLY: what must the magistrates work out if D pleads not guilty
the most appropriate court to allocate the case for trial
136
pre trial procedure for EITHER WAY offences ONLY: what will the magistrates hear to help them decide which is the most appropriate court to allocate the case for trial where d pleads not guilty
hear arguments from prosecution and defence, together with any relevant previous convictions
137
pre trial procedure for EITHER WAY offences ONLY: where should either way offences be tried and what is the exception
should be tried in MC unless its likely that the courts sentencing powers will be insufficient
138
pre trial procedure for EITHER WAY offences ONLY: what will the magistrates do if they feel the case is not suitable for trial by a magistrates court where d enters not guilty plea
allocate it to crown court for trial
139
pre trial procedure for EITHER WAY offences ONLY: what choice is D given if magistrates are prepared to hear the case where D pleads not guilty
a choice of trial court- indication of likely sentence given to help him/her decide
140
pre trial procedure for EITHER WAY offences ONLY: what will happen if D chooses the magistrates court for trial
adjournment and the court will have to decide whether to grant bail/remand D in custody until the trial
141
pre trial procedure for EITHER WAY offences ONLY: what will happen if D chooses crown court for trial
plea and case management hearing
142
what decision must be made for all types of offence
whether to release D on bail/remand them in custody
143
who can bail be granted by
the courts or the police
144
what presumption does section 4 of the bail act 1976 give
a presumption for bail
145
when can the court refuse bail
- if the court has substantial grounds for believing that there is a risk D might:
* abscond and not turn up to next stage of case
* commit a further offence if granted bail
* interfere with witnesses
146
what 4 things will the court take into account when making a decision on bail
- nature and seriousness of offence
- Ds character and community ties
- Ds record in respect of any previous grants of bail
- strength of evidence against D
147
how will courts take into account nature of offence when deciding bail
if D has been charged with a serious offence (eg. s.20) he is more likely to abscond because he is likely to be imprisoned if convicted
148
how will courts take into account Ds character and community ties when deciding bail
if D has close links with that area, he is more likely to turn up at court because he does not want to leave the area
149
how will courts take into account Ds record in respect to any previous grants of bail when deciding bail
the court is unlikely to grant bail if D has absconded on an earlier occasion
150
how will courts take into account the strength of evidence against D when deciding bail
if the evidence appears very strong and the crime serious, the chance of bail will be less
151
can bail be unconditional aswell as the court attaching conditions
yes
152
examples of conditions the court can attach to bail
- surrender of Ds passport
- regular reporting to police station
- residence at a particular address
- curfew
153
what offence is D guilty of if he fails to attend court when required to do so without reasonable cause
absconding
154
what does 'an accused person is presumed innocent until proven guilty' mean?
the burden of proof at a trial is on the prosecution
155
how must the prosecution prove the case
by showing that D satisfies both the required AR and MR of the offence charged
156
standard of proof
'beyond reasonable doubt'
157
what does 'beyond reasonable doubt' mean
magistrates/jury should only convict if they are sure of Ds guilt
158
what type of sentence is the most severe form of punishment and what does it involve
custodial
| -imprisonment which is either immediate/suspended
159
which 2 sentences can be given for imprisonment
max life sentence for s.18
| fixed term prison sentence
160
what is the max sentence for s.18
life imprisonment but the court can give any lesser sentence where appropriate
161
what is a fixed term prison sentence
a term of imprisonment for a set number of months or years
162
what did the criminal justice act create
one community order to which the court can attach any requirements they think will both punish and reform the offender
163
which 4 requirements can a community order include
- unpaid work
- alcohol/drug treatment
- supervision
- curfew
164
what is an unpaid work requirement
offender has to carry out unpaid work between 40-300 hours over a year on a project organised by probation service
165
what is a supervision requirement
where the offender is placed under the regular supervision of a probation officer for a period of up to 3 years
166
what can financial sentences include
- fine paid to state
| - compensation order paid to victim
167
what are the least serious sentences and who are they usually imposed upon
discharges
| usually imposed upon first-time minter offenders in the mc
168
what are the 2 types of discharge
conditional/absolute
169
what is a conditional discharge
where if the offender commits a further offence in the stated period, they can be resentenced for the original offence
170
what is an absolute discharge
no real penalty imposed as the offender is technically guilty but morally blameless
171
what 2 things will judge/magistrates look at when they have to pass sentence
range of sentences available and what they're trying to achieve by the punishment they give
172
punishment/retribution
-the idea that if someone has broken the criminal law, they should be punished and get their 'just deserts'
173
reduce offending
- to punish in such a way to achieve this
- individual deterrence: impose severe sentences for crimes so that offenders are deterred from reoffending for fear of the consequences
- general deterrence: other people deterred from offending because they do not want the same fate
174
protection of the public
- offender given a sentence that makes them incapable of committing further crime
- long custodial sentence/curfew requirement usually given to achieve this aim
175
reform and rehabilitation
- reform offender and rehabilitate him back into society
- help to alter offenders behaviour so that he will not reoffend
- sentence should take into account personal circumstances of offender and look to his future
- usually given community order with various requirements to rehabilitate them
176
reparation
where the sentence tries to ensure that the offender makes amends, may be achieved through compensation order
177
what 6 things will court take into account when deciding sentence
- max sentence allowed by parliament
- man sentencing powers of court
- offenders background/aggravating/mitigating factors
- aims of sentencing
- sentencing guidelines
178
what is the max prison sentence for assault/battery
6 months imprisonment
179
what is the max sentence for s.47 or s.20 OAPA
5 years imprisonment
180
what is the max sentence for s.18 OAPA
life imprisonment
181
what is the max sentence that the mc can impose
6 months for one offence
182
what is the max sentence that a judge in the cc can impose
no such limit than max sentence allowed by parliament for offence
183
if d pleads guilty or is found guilty of s.47/s.20 (either way) in mc, what can magistrates impose
up to 6 months imprisonment
184
if d pleads guilty or is found guilty of s.47/s.20 (either way) in cc, what can judge impose
up to years imprisonment for offence
185
what may be involved in taking the offenders background and aggravating/mitigating factors into account
referring to pre sentence report drawn up by the probation service/ to medical/psychiatric report if the offender is ill
186
what are aggravating factors
circumstances which allow the court to impose a more severe sentence than it would have normally given
187
examples of aggravating factors given in criminal justice act:
```
previous convictions
premeditated
committed on bail
unprovoked
racist/religious hostility
hostility on grounds of disability/sexuality
committed against vulnerable victim and d knows this
use of a weapon
offender being part of a group
v serving public
alcohol/drug influenced
```
188
what are mitigating factors
circumstances which allow the court to impose a lower sentence than it would have normally given
189
examples of mitigating factors in the criminal justice act
```
no previous convictions
young/old offender
mental/physical illness of D
offender shows genuine remorse
cooperation with police
provocation by v
d pleaded guilty at first opportunity
```
190
what else will be taken into account when sentencing (AOS)
aims of sentencing
