OFFENCES Flashcards
(144 cards)
1
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Assault
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2
Q
Assault is a common law offence with a maximum sentence of six months (Criminal and Justice Act 2009).
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3
Q
- Actus reus of assault is causing the victim to apprehend immediate and unlawful personal violence (Ireland and Burstow). In the scenario
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the criminal act is ______ and the criminal consequence is ______.
4
Q
+ Assault does not have to take the form of words (Ireland).
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5
Q
+ Assault can take the form of words (Constanza).
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6
Q
+ Question of “immediate” attack; however
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the courts have deemed that immediate does not mean instantaneous (Smith v Chief Constable of West Riding Police Station).
7
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+ A conditional threat can be assault (Read v Coker)
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8
Q
+ Words can negate an action (Tuberville v Savage)
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9
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- Factual causation: if the consequence would not have occurred “but for” the D’s actions. (White)
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10
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- Legal causation: D’s actions need to be the substantial (Cato) and operative (no intervening acts) cause of the criminal consequence.
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11
Q
+ Take your victim as you find them (Blaue)
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12
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- Mens rea of assault is intentionally or recklessly causing the V to apprehend immediate and unlawful personal violence.
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13
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- Direct intent is when the criminal consequence was the D’s main aim (Mohan).
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14
Q
- Recklessness is where there is some risk of the criminal consequence and the D knows it but carries on anyway (Cunningham).
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15
Q
Battery
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16
Q
- _____ may have committed battery. Battery is a common law offence. - Actus reus of battery is the unlawful application of force on another (Ireland and Burstow). + Force used was unreasonable (Collins v Willcock).
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17
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+ Touching clothes is akin to touching skin (Thomas).
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18
Q
+ Can be an omission (not acting when there is a duty to act; creating dangerous situation)
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(Santana Bermudez)
19
Q
- Indirect battery: when the D takes action which subsequently (after a time delay) leads to physical force being acted on someone else (Martin).
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20
Q
- Mens rea of battery is intentionally or recklessly applying unlawful force on another (Venna).
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21
Q
+ Direct intent (Mohan) / Recklessness (Cunningham)
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22
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(Intent needs to relate to the act itself
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not the harm which ensues.)
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- Transferred malice: where the mens rea is transferred from the intended victim to the actual victim (Latimer).
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24
Q
s.47 (ABH)
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- ______ may be liable under s.47 of the Offences Against the Persons Act (1861). The maximum sentence for this is five years.
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- Actus reus of s.47 is assault occasioning Actual Bodily Harm (ABH). Here
assault means common assault; either the actus reus of assault or battery must be present.
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- ABH must be present. In Chan Fook
this was defined as harm which is more than trivial so as to not be wholly insignificant.
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+ This can also include psychiatric injury
provided it was more than mere emotions.
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- ‘Occasioned’ means caused → causation issues
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★ Roberts → If the victim’s act was so unexpected that it could not be foreseen by a reasonable man then the act would be a remote and unreal consequence of the assault and as such would then break the chain of causation.
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+ Factual (“but for” – White); Legal (substantial and operative – Cato) + Take your victim as you find them (Blaue).
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- Mens rea of s.47 is intentionally or recklessly causing an assault or battery (Roberts). + Direct intent (Mohan) / Recklessness (Cunningham)
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s.20 and 18 (GBH)
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- _____ may be liable under s.20 of the Offences Against the Persons Act (1861). This has a maximum sentence of five years.
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- Actus reus of s.20 is to unlawfully wound or inflict grievous bodily harm (GBH). - Wound: breaking both layers of the skin; blood loss (JCC v Eisenhower). - GBH: “serious” harm (DPP v Smith; Saunders)
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+ Many injuries can collectively be considered GBH (Brown v Stratton). + Take into account injuries to young/old may be more serious (Bollom). + Recklessly transmitting a disease is GBH (Dica).
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+ Psychiatric harm can be GBH - also does not require direct/indirect force (Burstow). - Causation issues: Factual (White); Legal (Cato); take your victim as you find them (Blaue).
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- Mens rea of s.20 is intentionally or recklessly inflicting “some” harm (Mowatt). + Direct intent (Mohan) / Recklessness (Cunningham)
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+ Savage: recklessness as to cause some harm
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- _____ may also be liable under s.18 of the OAPA (1861)
for which the maximum sentence is life. The actus reus is the same for s.20
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- Mens rea of s.18 is intent to cause GBH.
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+ Direct intent (Mohan)
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+ Indirect intent: when the criminal consequence is the virtually certain result of the D’s actions (Woollin)
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Fatal offences
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Murder
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- _____ may be liable for murder which is a common law offence. It was defined by Lord Coke as “the unlawful killing of a reasonable person in being
under the king’s peace
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- Actus reus of murder is the unlawful killing of a reasonable person in being. + Foetus attached to mother by umbilical cord (AG’s Reference (No.3 of 1994)) + On life support machine with inactive brain stem (Malcherek and Steel)
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- Can be an omission
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- Causation
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+ Factual (“but for” – White); Legal (substantial and operative – Cato) + Take your victim as you find them (Blaue).
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V’s own actions:
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+ “Daftness” test – were the V’s actions foreseeable? (Roberts; jumping out of car)
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+ Did the D’s actions create a risk of “some physical harm”? (Williams)
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- Mens rea of murder is intent to kill or cause GBH / serious harm (Vickers). + Direct intent (Mohan)
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+ Indirect intent: when the criminal consequence is the virtually certain result of the D’s actions (Woollin)
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+ Transferred malice (Mitchell)
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Loss of control – Voluntary manslaughter
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- … It is likely that _____’s defence would argue that (s)he should be convicted of the lesser crime
voluntary manslaughter. Voluntary manslaughter arises when the actus reus and mens rea of murder apply
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- There are three tests which must be met so the defence can be used. 1. First test is that the killing resulted from loss of self control.
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+ it cannot be used if it was a considered desire for revenge.
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+ Loss of control does not need to be “sudden” (Ahluwalia);
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+ But the longer the time delay
the more likely jury will say it’s a considered desire for revenge.
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2. Second test is that the loss of control had a qualifying trigger:
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a) Fear of serious violence (subjective + violence must be serious)
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b) Things said/or done which constituted circumstances of a grave character and caused the D to have a justifiable sense of being seriously wronged.
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c) Both
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RESTRICTIONS ON QUALIFYING TRIGGERS:
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- If the D incited it
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- Sexual infidelity (unless it’s not the only trigger – Clinton)
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3. Third test is that a person of D’s age and sex
with a reasonable degree of tolerance and self-restraint
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- Objective test
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Diminished responsibility – Voluntary manslaughter
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- … The second defence which could reduce _____’s sentence to voluntary manslaughter is diminished responsibility. The original definition was updated in the Coroners and Justice Act 2009.
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- This definition states that a person is not convicted of murder if the D was suffering from an abnormality of mental functioning which…
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1) Arose from a recognised medical condition
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+ In Bryne
abnormality of mental functioning meant a state of mind so different to the average person that a reasonable man would term it abnormal.
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2) Substantially impaired the D’s ability to either…
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a) Understand the nature of his conduct
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b) Form a rational judgement
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c) Exercise self control
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+ “Substantial” – more than something that would not make any great difference (Golds)
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3) Abnormality must provide an explanation for the killing.
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NON-ALCOHOLICS: if someone with a recognised medical condition kills when drunk
they can still use defence of DR (Dietschmann).
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ALCOHOLICS: if someone with ADS kills when drunk
they can use ADS as their medical condition (Wood).
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Unlawful act manslaughter
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- … There is an argument that ______’s actions may make him liable for unlawful act manslaughter. This is when the D causes the V’s whilst carrying out a crime that is deemed to be dangerous.
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1) First test is there is an unlawful act with the necessary mens rea.
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+ Has to be an act
not omission (Lowe)
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+ Has to be criminal act (Franklin)
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+ Mens rea must be present (Church; Lamb)
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2) Second test is that the criminal act must be dangerous.
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+ Reasonable person in the D’s position would have foreseen the risk of some harm (Church).
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3) Third test is that the unlawful act must have caused death.
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+ Causation: factual (White); legal (Cato); “thin-skull” rule (Blaue)
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Gross negligence manslaughter
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- There is an argument that _____ may be liable for gross negligence manslaughter. The modern tests for gross negligence manslaughter come from Adomako.
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- First test is that a duty of care exists between the D and V.
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+ Neighbour principle (Donoghue and Stevenson): owe a DoC to those around you likely to be affected by your actions such that you ought reasonably have their safety in mind.
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+ DoC after voluntarily taking on responsibility — Stone and Dobinson + DoC after creating a dangerous situation — Miller; Evans
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+ DoC between those involved in criminal activities — Wacker
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- Second test is that there is a breach in the duty of care.
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+ Breach if they do not meet the standard of a reasonable man (of that age and professional level) in the circumstances.
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+ Breach can be act / omission.
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- Third test is that the breach must have caused death.
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+ Causation: legal (White); factual (Cato); “thin-skull” rule (Blaue)
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- Fourth test is that the breach involved a risk of death.
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+ Singh defined risk of death: “a reasonable person would have foreseen a risk of serious risk not merely of injury
but of death.”
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- Fifth test is that the breach would be considered gross by the jury. + Based on the D’s conduct (Finlay; Edwards).
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Property and Preliminary Offences
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Theft
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- _____ may be liable for theft. This crime is set out in the Theft Act 1968 as “dishonestly appropriating property belonging to another with the intention of permanently depriving the other of it.”
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1. Firstly
beginning with the actus reus
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+ Borrowing and not giving it back is appropriation (s.3(1))
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+ When D is dishonest
even with consent
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2. Secondly
the item taken must be “property”. This includes tangible property
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+ Information is not property (Oxford v Moss)
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3. Thirdly
the appropriated property must “belong to another”. s.5(1) states that “property shall be regarded as belonging to any person having possession or control of it
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+ Person can be in possession of something even if he does not know he has got it (Woodman)
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+ Taking something which is lost is theft
taking something which is abandoned is not (Williams v Phillips; Rickets)
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+ Dealing with other’s property (Davidge v Burnett)
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+ You have to give something back if it’s given by mistake.
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4. Moving onto the mens rea
fourthly
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● believes he is acting within the law
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● believes the V would have consented to his actions
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● or believes that the owner of the property cannot reasonably be identified.
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+ Ivey and Genting: they have been dishonest if
given the facts as the D believed them to be
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5. Fifthly
the D must have appropriated the item with the intent to permanently deprive the other of it.
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+ Fernandez → the D must “treat the thing as his own to dispose of regardless of other’s rights”.
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+ This test is met if D’s intention is “to return the thing in such a changed state that all its goodness and virtue is gone” → Lloyd
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Robbery
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- … In addition to theft
_____ may have committed robbery. The Theft Act of 1968 states that “a person is guilty of robbery if he steals
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- Actus reus is the actus reus of theft and using or threatening to use force immediately before or at the time of theft.
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+ Force is given its normal
everyday meaning (Dawson and James). + Force must be used to bring about the theft → Hale
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+ Robbery doesn’t need to involve direct force (touching) → Clouden + SINGLE CONTINUING ACT → Lockley
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- Mens rea is the mens rea of theft and intent as to the use of force in order to steal. + It doesn’t matter if the V didn’t fear force
just that the D intended it → B and R v DPP + Robbery even if the threat isn’t real (fake gun) → Bentham
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Preliminary offences
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- _____ may be liable for attempted _________.
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- Attempt is defined in s.1(1) of the Criminal Attempts Act 1981 as “a person does an act which is more than merely preparatory to the commission of the offence” with the intent to commit that offence.
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1. Firstly
we must show that the D has gone beyond mere preparation.
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+ Gullefer → Court of Appeal said that an attempt begins when “the merely preparatory acts have come to an end
and the D embarks on the crime proper.”
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+ D does not have to have committed the “last act” before the crime
nor does he need to have reached the point of no return → AG’s Reference (No. 1 of 1992)
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2. Secondly
we must establish that the D intended to commit the full offence. + Recklessness is not enough → Millard and Vernon
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+ A conditional attempt is sufficient (doesn’t steal because nothing worth stealing) → AG’s Reference (No. 1 and 2 of 1979)
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+ For attempted murder
D must have intended murder
