Law Flashcards
(20 cards)
Actus Reus
- The physical element of a crime
- the act must be voluntary (in control of your body) eg. Hill v Baxter- bees in car
- omission- general rule of failing to act is your not guilty except 5 exceptions:
1) Contractual duty- it’s your jobs eg. Pittwood- train gate killed person & horse
2) Relationship- if you have a relation with the person eg. Gibbins v proctor- neglected baby
3) Voluntary care- if you chose to care for someone eg. Stone v Dobinson- elderly person anorexic
4) Official position- doctor, police, nurse, paramedic, life/coast guard eg. Dytham- police not stop attack
5) Conduct of the accused- Defendants own actions eg. Miller- squared caused fire & Santana Bermudez- needle in pocket
Mens Rea
- Mental element(thinking) of the crime
- 3 levels of Mens Rea
1) Direct/specific intention- do it on purpose. “A decision to bring about a particular consequence”-Mohan
2) Indirect/oblique intention- the consequence was a “virtual certainty” and the D knew it eg woolin- baby hit wall
3) Subjective recklessness- take a unjustified risk and the D knew it eg. Cunningham- gas meter ripped off wall(low mental age)
Causation
-Proving the D’s actions caused the consequence to the victim
- 3 things to prove:
1)Factual causation- “But for” test
- “but for the defendants action the V wouldn’t be hurt
- Pagget-works used as human shield
- White- arsenic tea
2)Legal causation- D must be the “substantial and operating cause”(main cause)
- Malcherict& steel- lady on life support
* Thin skull rule- take victim as you find them
-Blaue- Jehovah’s Witness refuse blood transfusion
3)Intervening act- if a I.A is reasonably foreseeable the D is guilty
-Roberts-girl hitchhiker G
-Williams-male hitchhiker NG
-Smith- chest compression gone wrong NG
-Cheshire- tracheotomy went wrong NG
-Jordan- given wrong antibiotics G- because of the “palpably” wrong medical treatment
ALL 3 MUST BE SATISFIED
Criminal Courts
Categories of offence -Summary: minor crimes, always go to magistrates court eg. Battery & assault -Triable either way offences: medium crimes, either magistrates or crown court eg. Theft& ABH -Indictable offences: serious crimes, always go to crown court eg. Murder & rape *Hierarchy of courts Top - European court of justice - Supreme Court - Court of appeal - Queen bench divisional court - Crown court - Magistrates court
Transferred Malice
- Direct intention can be tea feared form the intended victim to the actual victim
- Intention can be transferred from Person to person or object to object but not object to person
- Must be a similar crime
- Latimer- belt whipping case
- Intention transferred from the man to the barmaid
Strict Liability
-When the actual Reus is enough to be guilty of a crime
-No Mens Rea needs to be proven
-Eg. Foreign bodies in food, speeding,truancy
-For a crime to be treated as SL all 4 presumptions must be prove
1)Regulatory offence(not a moral crime)
2)Issue of social concern
3)No Mens Rea mentioned in law
4)Small penalty
* cases
1)Smedley v breed- caterpillar in peas-was SL Guilty
2)Gammon- builders change plan collapse was SL Guilty
3)Shah-sell lottery ticket to U16- was SL shop was Guilty
4)Sweet v parsley- smoke weed In rented house- Not SL Not Guilty
5)RvK- 26yr old have sex with 14yr old- Not SL Not Guilty
Pros
-Easy to price
-Encourage people to check
Cons
-Unfair assumed guilty if not
-Still guilty even if took steps to prevent
Coincidence
- Proving the AR&MR happened at the same time or in a series of linked events (“A continuing act”) to be guilty
- Also known as the contemporary rule
- Cases
1) Fagan- car on policeman’s foot-AR- car on the foot. MR-when he realised and didn’t move
2) Thabo Meli (rice)-beat up and thrown off cliff. AR- when he died at bottom of cliff. MR- when they beat him up
3) Church- Beat up wife cause couldn’t get it up. AR- when the V drown. MR- when he beat her up
Factors of sentencing
Aggravating-increase the sentence- things that make the crime more serious - No remorse -Previous convictions -In a position of trust -Planned/pre-meditated -Victim is very young/old -Victims has a medical condition -Serious crime -Racial Hostility -Religious Hostility Mitigating- decreases the sentence- things that make the crime less serious -Defendant is young/old -Defendant has a medical condition -First offence -Influences or coerced into doing it -Defendant tried to apologise -Intervening act -Guilty pleas- 1/3 off sentence of done at first oppurtunity, 1/4 before trial, 1:10 on day of trial
Aims of sentencing
1) Rehabilitation- to reform the defendants behaviour
2) Retribution- to punish the defendant
3) Reparation- compensate society and the state
4) Deterrent- to stop the D or others doing doing crime in future
5) Denunciation- to express Societies disapproval towards the D
6) Incapacitation- to protect the public or the D
Types of sentencing
1)Prison- kept in custody- max 6 months in magistrates & life in crown court
2)Fine-goes to the state- max £5,000 in magistrates and unlimited in crown
3)Community sentence- 1-3 requirements D must follow
Eg- unpaid work (max 300hours), Tag, residence order, rehab classes (AA,DA)
4)Suspended sentence- D is given a prison sentence suspended for a a period of time if commit crime in that period straight to prison
-get a criminal record
5)Conditional discharge- let free conditions must follow does not go in criminal record
6)Absolute discharge- let free no conditions no criminal record
Bail
1) Bail- released from dutifully between arrest and trial
2) Conditional bail- released but given condition to follow eg. Attend trial, no going to see witnesses, no reoffending
3) Unconditional bail- released but not given any conditions to follow except must attend to corrupt and trial
4) Remand- not given bail and are kept in custody until their trial date
5) D breaches bail- arrested, bail is withdrawn and not allowed in future and sentenced with crime of breaching bail
Assault
- Section 39 criminal justice act 1988
- AR: To cause another go fear immediate unlawful personal violence
- MR:Intention or subjective recklessness to cause fear
- Injury: just fear is enough
- Cases
- Smith: man look through window (immediate =immediate future)
- Ireland: silent phone calls (silence is an assault)
- Tuberville v savage: swords (words are more important that actions)
- Contanza: stalking woman saying weird things (words are an assault)
- Max sentence 6 months £5,000 fine summary offence
Battery
- Section 39 criminal justice act 1988
- AR: to apply unlawful force to another
- MR: intention or subjective recklessness to unlawfully touch
- Injury: a mere touch is enough
- Cases
- Fagan: car on foot (touch through object)
- Santana bearmudez: needle in pocket (touch through object)
- DDPvK: acid in hair dryer (fluid is touching is enough)
- Thomas: caretaker touches girls skirt (touching clothing is enough)
- Haystead: man punches mother causing her to drop baby (indirect act)
- Max sentence: 6 months in prison £5,000 fine summary offence
ABH
- Section 47 offences against person act 1861
- AR:” an assault of battery occasioning in ABH
- MR: intention or subjective recklessness to cause an assault of battery
- Injuries: bruises, minor broken bones, scratches, cutting hair, “interfering with the health and comfort of a victim”
- Cases
- Chan fook (chow mein): man locked in room(emotions aren’t psychological harm must be medically diagnosed)
- Roberts: girl hitchhiker (battery(touch) led to ABH)
- Smith: man cut of girl ponytail: (cutting hair is enough to be ABH)
- TvDDP: man K.O( K.O is enough to be ABH)
- Savage: beer thrown and glass cut victim ( only need to mean an assault or batter or ABH)
- Max sentence 5 years prison £5,000 fine triable either way offence
GBH
- Section 20 offences against person act 1861
- AR:”to wound of inflict GBH”
- MR:intention or subjective recklessness to cause some harm
- Injuries: major broken bone, internal bleeding, paralysis, burning “degree of permanence” and “requires medical treatment”
- Cases
- Dica:HIV to 2 women (disease is GBH)
- Bollom: dad bruised baby (bruising a baby or OAP is GBH not ABH)
- JCCvEisenhower: pellet gun (internal bleeding is GBH)(wound must go through all layers of skin)
- Parmenter: dad playing with baby (must mean some harm for it to be GBH) Not guilty
- Max sentence: 5 years in prison and unlimited fine triable either way offence
GBH with intent
- Section 18 offences against person act 1861
- AR: to wound of cause GBH
- MR: direct intention to cause GBH or resist arrest
- Injuries: major broken bone, internal bleeding, paralysis, burn, wound
- Case
- Belfon- slashed V with a razor blade ( if you do it on purpose =GBH with intent)
- Max sentence: life in prison and unlimited fine indictable offence
Criminal liability exam question structure
- S: state section number and statue, state the offence, state AR/MR
- E: explain the AR/MR of the offence
- C: case facts
- O: case outcome
- N: name link to person in scenario
- D: draw conclusion Guilty/not max sentence & category of offence
Triable either way procedure
-Preliminary hearing in magistrates court
- Name, DOB, plea, bail & legal aid application
D PLEADS GUILTY
-Magistrate decides whether they have sentencing power
-Enough power: sentenced in magistrates court
-Not enough power: transferred to crown court for trail/ sentencing hearing
D PLEADS NOT GUILTY
-Magistrate decide whether the have sentencing power
-Not enough power: transferred to crown court for trial
-Enough power: D gets to hide which court to have their trial in
-D picks magistrates
+lower sentencing power
-less experienced
-D choses crown court
+more likely to be found not guilty
-get higher sentence if found guilty
Indictable procedure
1) Preliminary hearing in mag
- Name,DOB,Plea
- Bail application
- Legal aid application
2) Transferred to crown court
3) Plea & Case management hearing (PCMH)
- D can ask for an advanced indication of their sentence
- D pleads
- Trial date is set in a “Notice of fixture” (letter)
- Disclosure of evidence
* 4)D pleads guilty
- Sentencing hearing
* 5)D pleads not guilty
- The full trial in front of a jury
- The judge will sentence
Summary procedure
1) Preliminary hearing in mag court
- Name,DOB,Plea
- Bail application
- Legal aid application
2) Gather the evidence
- Disclose evidence (swap with each other)
* 3)If D pleads guilty
- Sentencing hearing (up to 6 month £5000 fine)
* 4)If D pleads not guilty
- Full trial with 3 lay magistrates to decide verdict and sentence
