Paper 1 Part B: Rules and Theory of Criminal Law Flashcards
(24 cards)
What is the definition of a crime?
Crime involves conduct which is forbidden by state and for which is punishment.
Can offences be committed by British citizens abroad but persecuted under English law in UK?
True (they can)
What are the main sources of criminal law?
- Vast majority of criminal law contained within Acts of Parliament (e.g. Theft Act 1968) but manslaughter and murder usually statute
- Occasionally created by judges (e.g. conspiracy to corrupt public morals as was not in AoP (Act of Parliament) but proved existence in Shaw v DPP (1962))
- Interpret law set by AoP but can change view as meaning of act or definition of what constitutes crime (e.g. R v R(1991) courts decided husband could be guilty of raping wife as no longer assumed to have consented (despite marriage)- views on position of women has changed
What are the two elements of criminal liability?
Actus reus and mens rea
What is meant by mens rea?
The mental element of a crime- what the defendant is intending or thinking or failing to think about when crime was committed
What is meant by Actus reus?
Physical element of crime- what the defendant had or had not done
What do most crimes have to have?
Have to usually have the mens rea of intention or recklessness as to the actus reus
What are examples of crimes where there is a specific mens rea that has to be present?
In theft the D must appropriate property belonging to V for actus reus and do this dishonestly and intend to deprive V of it for mens rea
What are examples of offences where only proof of actus reus is required and what is the name of these types of offences?
Srtict liability offences (e.g. driving offence such as exceeding speed limit- all that must be proven is drivier exceeding speed limit
What is the process of court procedings in criminal law?
- All cases begin in Magistrates’ court but depending on seriousness of offence and complexity can be passed to Crown court to be tried before jury and judge
- Accused has chance to defend case brought against him by supplying evidence to court that challenges evidence provided by prosecution
- If defendant found guilty , punishment imposed by court
- In deciding sentence, court considers aims of sentencing along with aggravating and mitigating factors
- Private prosecutions may occur by bodies such as royal mail, and occasionally individuals.
What is the rule on the guilt of a person
A person is deemed innocent unless proven guilty with substancial evidence
What is meant by the burden (onus) of proof and what is its role?
It is on the prosecution t prove the defendant is guilty
- Means pros must prove both mens rea and actus reus for the offence that D is charged with
What is the proof of both elements of a crime usually refered to as and what is the new guidance on it?
’ Beyond reasonable doubt’ but changed to ‘sure’ (standard of proof in criminal cases)
What is the use of telling the jury that they must be ‘sure’ of the defendants guilt and the standard of proof of ‘beyond reasonable doubt’ refered to as?
The ‘99%’ test
What must be present in a defence for it to be valid?
For all common law defences (except insanity) must be evidence of key points of defence given at trial.
- Can be evidence from defence or pros
- If evidence of defence is given at time of trial then, even if defendant has not specifically raised a defence, pros must disprove at least one element of the defence
- Trial judge must direct jury to acquit unless satisfied that defence has been disproven by pros
What are examples of defences where burden of proof is on defendant?
- For insanity, defendant must prove that defence can be used
- Reversal of burden of proof called ‘reverse onus’
What is the standard where the burden of proof is on the defendant?
the civil one of ‘on the balance of probabilities’ - standard of proof in civil law that is unofficially described as the ‘51% test’
What are the aims and purposes of criminal law?
- Seen as retributive justice
- Deterrence & corrective justice
- Education to avoid reoffending
- Social control over society
What is legal responsibility based of?
Faut- wrongdoing
When will a seemingly ‘negligence’ case become criminal?
When adequate mens rea arises (intention or recklessness)
What is the principle where D is presumed not guilty until court makes verdict of guilt?
Innocent until proven guilty
Who must establish and prove the guilt and to what standard must this be done?
The prosecution and to ‘beyond reasonable doubt’
What legal right does the D have when pros/police collecting evidence and what Act does it fall under?
- The right to remain silent
- Police and Criminal Evidence Act 1984
What right does the D have when defending himself and what is the reasoning for it?
- Ability to raise any defence that may be available to him (general, specific)
- To ensure fault is attached correctly as guilt leads to sanction of moral wrongness in eyes of society
