Paper 1 Flashcards
1
Q
Who defines assault and in which case?
A
Lord Goff in Collins vs Willcock
2
Q
What is the definition of assault?
A
An act which causes the victim to apprehend immediate unlawful force
3
Q
Part one of the actus reus of assault
A
D must do an act:
-Can be words, gestures, even silence (Ireland)
-Side Rule- Letters/emails/texts(Constanza)
4
Q
Paarl 2 of actus reus of assault
A
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)
5
Q
Part 3 of actus reus of assault
A
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
6
Q
Mens rea of assault
A
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
7
Q
Who defines battery and in what case?
A
Lord Goff in Collins v Willcock
8
Q
Definition of battery
A
The unlawful infliction of force
9
Q
Part one of actus reus of battery
A
Touching- Lord Goff, “Any touching, however slight, may amont to a battery”.
- Side Rule- Clothing (Thomas)
- Side Rule- Indirect touching (Martin)
10
Q
Part 2 of actus reus of battery
A
The touching use be unlawful. Wilson v Pringle defines unlawful as “Hostile or aggressive”
- Causation issues here
11
Q
Mens Rea of Battery
A
The intention (Mohan), or recklessness (Cunningham), to inflict unlawful force.(Venna)
-Transferred malice or coincidence rule goes here
12
Q
What section of the act defines ABH
A
Section 47 of the Offences against the person act 1861
13
Q
Definition of ABH
A
A common assault that occasions actual bodily harm
14
Q
Part one of actus reus of ABH
A
he D must have committed a common assault (Assault or battery).
- Fully apply whatever common assault has been committed
15
Q
Part 2 of actus reus of ABH
A
The common assault must have occasioned (caused) the injuries.
- this is an issue of causation
16
Q
Part three of actus reus of ABH
A
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”
17
Q
Examples of ABH injuries
A
-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
18
Q
How to establish what type of GBH has been committed.
A
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)
19
Q
Mens rea fir ABH
A
(Savage) rules that only the mens rea for assault or battery is needed
- Transferred malice or coincidence rule goes here
20
Q
definition of section 20 GBH
A
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”.
21
Q
Definition of s.18 GBH
A
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”.
22
Q
actus reus of GBH
A
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 “.
23
Q
Two side rules for actus reus of GBH
A
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)
24
Q
Mens rea for s.20 and s.18 GBH
A
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)
25
Who defined murder and what is the definition ?
Lord Coke defined murder as, “the unlawful killing of a human being under the Kings Peace pace, with the intention to kill or cause GBH”.
26
What is the Actus Reus of Murder?
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)
27
Causation issues for murder (List all)
- 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
28
Mens Rea of Murder
The intention to kill or cause GBH
29
Explain direct intent for murder
A D has direct intent if it was their aim, purpose and desire to kill the V (Mohan)
30
Explain indirect intent for murder
If D intended to cause GBH- apply Virtual certainty test (Woolin)
1) Was death or serious injury a virtual certainty?
2) Did the D realise this ?
31
Which section of what act sets out test for loss of control ?
Section 54 of the corners and justice act 2009
32
Stage one of Loss of control
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 asssessing whether they lost their control.
33
Section 2 of Loss of control
S.55- The loss of control must be due t a qualifying trigger.
-Fear trigger (Pearson)- D fears serious violence
-Anger trigger (Hatter)
34
Explain the Anger trigger for Loss of control
Established in Hatter- 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.
35
Stage 3 of Loss of control
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.
36
What section of what act defines diminished responsibility?
Section 52 of the Coroners and Justice act 2009 defines Diminished responsibility as having a three stage test.
37
Stage 1 of diminished responsibility
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".
38
Recognised medical conditions for diminished responsibility
-Severe depression (Seers)
- Pre menstrual tension (Smith)
- Epilepsy (Campbell)
- Paranoia/ personality disorder (Martin)
- Irresistible impulses(Byrne)
- Alcohol Dependency Syndrome (Stewart)
39
Stage 2 of Diminished responsibility
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
40
Stage 3 of Diminished responsibility
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).
41
Stage 1 of unlawful act manslaughter
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
42
Stage 2 of Unlawful act manslaughter
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.
43
Stage 3 of unlawful act manslaughter
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
44
Stage 4 of unlawful act manslaughter
The D must have the mens rea for the lesser unlawful act (Goodfellow).
45
Which case sets out the stages of Gross negligence manslaughter
Adomako sets out that diminished responsibility has a four stage test which must be proved.
46
Stage 1 of gross negligence manslaughter
The D must owe the V a duty of care: Adomako, "Ordinary principles of negligence apply" :
- Is it foreseeable that the V will be injured as a result of the d's actions?
- Do the D and V have a relationship of legal proximity?
- Is it reasonable to give the duty of care to the D ?
-Side Rule- Joint enterprise (Wacker)
47
Stage 2 of Gross Negligence
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.
48
Stage 3 of Gross negligence
Did the breach involve a risk of death (Misra & Srivistava)
-Any causation issues go here
49
Stage 4 of gross negligence manslaughter
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)
50
What is the definition of attempts, and which section of which act does it come from?
Section 1 of the Criminal Attempts act 1981 defines attempts as, “ Where a D does an act which is more than merely preparatory, with the intention to commit the full crime”
51
actus reus of attempts
The D must do an act that is more than merely preparatory (Jones)
-(Geddes)- 2 questions to consider:
1) Had the accused moved from planning or preparation to execution or implementation?
2)Had the accused done an act hitch showed he was trying to commit the full offence?
52
Mens Rea of attempts
The D must intend to commit the full offence, recklessness is not enough (Mohan)
53
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”.
54
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
55
Stage 2 of theft
Property must be stolen:
- Under 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
56
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.
57
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)
58
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.
59
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?”
60
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)
61
Stage 1 of robbery
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.
62
Define robbery, and which act is it defined under?
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
63
Stage 2 of robbery
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)
64
Stage 3 of 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.
65
Stage 4 of Robbery
Force must be used in order to steal (Lockley)
66
Stage 5 of robbery
Mens rea:
- Firstly, the mens rea for theft must be established. This should have been previously established.
- The mens rea for robbery is the intention to use force or the threat of force (Mohan)
67
Definition of attempts and which act it comes under
Section 1 of the criminal attempts act 1981 defines it as, “Where a D does an act which is more than merely preparatory, with the intention to commit the full offence.
68
Mens rea of attempts
The mens rea is hat the D must intend to commit the full offence, recklessness is not enough
69
Actus reus of attempts
the D must do an act which is more than merely preparatory.
- Geddes- 2 questions to consider
1- Had the accused moved from landing or preparation to execution or implementation.
2- Had the accused done anything to show that he was actually trying to commit the full offence?
(Exam tip)- Look at the last act done by the D
70
Voluntary intoxication intro
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
71
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)
72
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.
- Howevever, (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.
- 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
73
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.
- Side rule- Unexpected side effect of a prescription drug- Defence is still available as long as the side effects are still unexpected (Hardie)
74
Definition and act for self defence
Section 76 of the criminal justice and immigration act of 2008 states that the defence can be used to protect yourself, someone else, o to prevent a crime
75
Part 1 of self defence application
Section 76(3)- The force must be necessary
- The D must have held a genuine belief that the force was necessary- subjective test.
76
Side rules for part 1 of self defence
- Side rule 1- Section 76(4)- The defence is available of the D made a genuine mistake (Gladstone)
- Side rule 2 - section 76(5)- If the reason that the D made a mistake is because they were intoxicated, the defence will be lost.
- Side rule - pre-emptive strike-The D can make the first move in order to protect themselves (Beckford)
77
Part 2 of self defence application
The force must be reasonable- This means that the force used should be proportionate to the threat.
- Key law- Lord Morris in Palmer- If the D is under attack, it is difficult to weigh up how much force they should use in return.
- The D will get the defence if they acted honestly and instinctively
78
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.
79
Act and definition of insanity
Section 1 of the criminal procedure (Insanity and unfitness to plead) act 1991 states that there must be evidence from 2 doctors, and one of them must be an expert in mental health.
80
3 stages of insanity and what case are they stated by
M'Naghten defined the defence of insanity as having three stages:
1) D must be suffering from a defect of reason
2) Caused from a disease of the mind
3) D must not understand the nature and quality of their actions
81
Stage 1 of insanity
The D must be suffering from a defect of reason- this means that the D's reasoning is impaired. It must be more than temporary absentmindedness or confusion- (Clarke)
82
Stage 2 of insanity
The defect of reason must be caused by a disease of the mind. This covers any disease which affects the operation of the mind. Insanity is caused by internally affected conditions. Examples include:
- Epilepsy (Sullivan)
- Sleep walking (Burgess)
- Schizophrenia
- Chronic depression
- Diabetes- Hyperglycemia (Hennessy)
83
Stage 3 of insanity
D must not understand the nature & quality of their act.
- This means, the D must not have known what they were doing was wrong and what the consequences would be ( Windle)
84
definition of automatism and who defined it
Lord Denning in Bratty, defined automatism as, " An act done by the muscles without any control of the mind". Automatism is caused by externally affected conditions.
85
Examples of automatism
- Reacting to swarm of bees/ spasm/ reflexes/ sneezing (Hill v Baxter)
- Diabetes- hypoglycaemia (Quick)
- Concussion- from a blow to the head
- Hypnotism
- Effects of medication such as anesthetic
86
Stage 1 of automatism
The D must have lost full control of their actions. This means that the D did the actus reus of the crime involuntarily ( Broome v Perkins)
87
Side rule for stage 1 of automatism- explained
Self induced automatism- If the D was aware that their actions or omission would result in an automatic state (Bailey)
- The defence works differently depending on the type of offence that the D has committed:
- The defence can be used for specific intent crimes ( as the D cannot form the intention as they are not in control of their actions)
- The defence cannot be used for basic intent crimes, as the fact that the D has got into a self induced automatic state is evidence of recklessness and the crime will be complete.
88
Stage 2 of automatism
The D must have no mens rea for the crime
89
Paragraph 1 to law and fault essay
The oxford English dictionary defines faults as, " Something wrongly done"," Mistake", and "Culpability". Fault is a legal and moral term used to describe a persons culpability or blameworthiness or in other words, the person committing the offence.
90
Paragraph 2 for law and fault essay
The uk has a fault based legal system and in English law a person a person's liability is generally dependent upon their degree of fault. In criminal law, people are guilty, being to blame beyond all reasonable doubt.
91
Paragraph 3 for law and fault essay
Fault is a marker of blame which imposes responsibility and therefore justifies the imposition of penalties or sanctions and identifies the person who should be punished. Criminal law mainly based on the principle of fault so a defendant will only be punished if it proved beyond all reasonable doubt that they are to blame. This based on the notion of individual responsibility- those who chose to behave in the way they do are responsible for the consequences.
- The following examples are from criminal law.
92
Introduction to law and justice
The Oxford English dictionary defines justice as "Just conduct; fairness". Justice , according to law can be:
- Procedural justice- how laws are made/ how the legal system operates must be fair.
- Substantive justice- is concerned with whether the rules are just. Substantive laws= the laws themselves
93
Aristotle's theory- law and justice
Aristotle's theory was that a just law was one that would enable people to fulfill themselves in society.
- Corrective justice- where justice is disturbed by wrongdoing, there should be a way of restoring the original position..
94
Natural law theory- law and justice
St Thomas Aquinas- theory of natural law:
- His natural law theory was that there is a higher natural law derived from god, and if this higher law is followed then there will be justice. A law that is contrary tp the view of god should only be followed in order to avoid social disorder.
95
utilitarianism- law and justice
John Stuart Mill/ Jeremy Bentham:
- This theory was concerned with issues of the greater good. A law was just if it benefits the majority of people, even if this results for injustices for the minority
-Criticism of the tory- it focuses on justice for society as a whole, at the expense of the individual.
96
Nozick's theory- law and justice
Idea of the minimal state, that state interference should be kept to a minimum to achieve a just society. inequalities are a fact of life.
-Criticisms of this theory- the fact that inequalities are a fact of life does not mean that we should simply accept them and not act to try and limit or prevent them.
97
Theory of criminal law- harm
- Harm means causing harm (Physical injury)
- Harm can be against yourself or someone else, but not all forms of harm are crimes.
-(Brown)- consent to harm
- Harm society in general through ways such as hate speech, or by breaching moral principles.
98
Principles of criminal law- autonomy, fault, and individual responsibility
What is the basis for visiting liability upon an individual, given that they may be subject to sanctions? Blame dependent upon fault? This introduces fault notions, lack of capacity, and connects up with the concept of fault.
99
Principles of criminal law- Fair labeling
The law should be drafted so that the elements of the offence are clear. The law should be fair in that the level of offence should be proportionate to the type of offence. There are three categories of offence which allows for offences to be fairly labelled.
100
Principles of criminal law- correspondence
For criminal liability, an appropriate match should be required between the D's conduct (Actus Reus), and their state of mind (Mens Rea).
101
Principles of criminal law- Maximum certainty
Any person should be able to establish in advance what conduct is criminal or not , and adjust his/her behavior accordingly. An example of where the law is defined imprecisely, is the definition of 'Gross', in gross negligence manslaughter.
102
Principles of criminal law- no retrospective liability
Where the unlawful conduct is not an offence at the time, it is clearly unfair to convict the D of the offence. However, changes in the interpretation of the law from judges who act retrospectively rather than only for the future, can have the effect of creating retrospective liability. For example, RvR (Marital rape case)
103
Stage 1 of duress
The D must have committed a crime which was nominated by the person who was making the threats (Cole)
104
Stage 2 of duress
The threats must be of death or of serious violence. Threats against property are not enough (Valderama-vega)
105
Stage 3 of duress
The threat must be against the D or someone they are responsible for (Wright)
106
Stage 4 of duress
The threat must be immediate, or so that the D does not have enough time to go to the police (Hasan)
107
Stage 5 of duress
Did the D have time to resist the threats ?
- Graham- 2 stage test
108
Full test for stage 5 of duress
- Graham- 2stage test:
- Subjective- did the D act because they believed that if they did not, they or someone else would suffer death or serious injury.
- Objective - Would a person of "Sober and reasonable firmness", but sharing the D's characteristics, have responded by committing a criminal offence?
- Bowen- characteristics taken into consideration- Age, pregnancy, mental/ physical disability.
