Paper 1 Section B Flashcards
1
Q
Two types of Involuntary Manslaughter
A
- Unlawful Act Manslaughter
- Gross Negligence Manslaughter
2
Q
Actus Reus
Unlawful Act Manslaughter
A
- D commits an unlawful act
- The act must be ‘dangerous’
- The act has caused the death
Unlawful Act Manslaughter
3
Q
- D commits an unlawful act
Unlawful Act Manslaughter
A
- Must be a criminal offence - Lamb, Franklin and Goodfellow
- Not an omission - Lowe
Unlawful Act Manslaughter
4
Q
- The act must be ‘dangerous’
Unlawful Act Manslaughter
A
- Objective test (Church) - “such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom - albeit, not serious harm”.
- Dangerous Act - Larkin, JM and SM (affray)
- Can be towards people or property - Goodfellow (arson - set own house on fire)
- Risk of physical harm, not just causing fear - Dawson
- Can take account of victim’s frailty if fear may lead to physical harm - Watson
Unlawful Act Manslaughter
5
Q
- The act has caused death
Unlawful Act Manslaughter
A
- Factual and legal causation - Normal rules apply
- Intervening acts - Cato, Kennedy
Unlawful Act Manslaughter
6
Q
Mens Rea
Unlawful Act Manslaughter
A
D only needs MR for unlawful act
Don’t need to know about the dangerousness of their act (objective test)/intend death:serious injury as this would count as murder (DPP v Newbury and Jones)
Unlawful Act Manslaughter
7
Q
Theft
A
Section 1 of Theft Act 1968
8
Q
S1(1) - Theft
A
A person who dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it shall be guilty of an offence
9
Q
S1(2) - Theft
A
It is immaterial whether the appropriation is made with a view to gain, or is made for the thief’s own benefit.
10
Q
Maximum Imprisonment - Theft
A
7 years
11
Q
Actus Reus - Theft (Appropriation)
A
‘Appropriation’ (s3)
- D “Assumes the rights to owner” (Morris)
- Can occur with owner’s consent (Gomez)
- Can occur as a gift if it’s gained dishonestly (Hinks)
12
Q
Actus Reus - Theft (Property)
A
‘Property’ (s4)
- ‘Money and all other property, real or personal, including things in action and other intangible property’
- E.g. Urine (Welsh), Body Parts (Kelly), but NOT test answers (Oxford v Moss)
- S4(3) and (4) - things that are not ‘property’ (wild flowers, wild animals etc)
13
Q
Actus Reus - Theft (Belonging to another)
A
‘Belonging to another’ (s5)
- s5(1) People in possession or control (Turner no.2) (Webster)
- s5(3) People holding money for a particular purpose (Davidge v Bennett) (Hall)
- s5(4) People who have received property by mistake (Gilks) (AGs Ref no1 of 1983)
14
Q
Mens Rea - Theft (Dishonesty)
A
‘Dishonesty’ (s2)
- s2(1) Someone is not dishonest if they believe they had:
Right in law (Holden)
Owners consent
Reasonable steps (Small)
- (Barton and Booth) Test - does the jury think D is dishonest?
15
Q
Mens Rea - Theft (Intention to permanently deprive)
A
‘Intention to permanently deprive the other of it’s (s6)
- D treat the property to dispose of regardless of real owners’ rights (Velumyl) (Lavendar)
- Borrowing can still be theft but only if goodness is taken out of it (Bagshaw) (Lloyd)
16
Q
Robbery
A
S8(1) of Theft Act - “ A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subject to force”
17
Q
Actus Reus - Robbery (“Steals”)
A
Theft must be complete
- Corcoran v Anderton - tugging at bag and victim let go
- Waters (took phone but planned on giving phone back)
18
Q
Actus Reus - Robbery (Force or Threat)
A
Force or threat on the victim (or another identified person)
- Dawson and James (1976) Da nudged victim, stumbled, and other then took V’s wallet - FORCE (can be minimal - slight push)
- Clouden (1987) Force applied to a shopping basket when snatched from V - indirect force
- P v DPP (2012) Snatching cigarette out of a hand - not enough force (too minimal)
- B and R v DPP (2007) - threat of force - D must desire for victim to be afraid even if they aren’t actually frightened
19
Q
Actus Reus - Robbery (Immediately before or at the time of theft)
A
- R v Hale (1978) Ds entered house, one of them tied up occupant while other went upstairs and took jewellery. Appropriation was ‘continuing’ throughout and so force was still ‘at the time’ of theft.
- Lockley - D entered a shop and put cans of beer under jacket. Shopkeeper saw him leaving and tried to stop him. D pushed him out the way (Force) and theft was a continuing act (Guilty of robbery)
20
Q
Mens Rea - Robbery
A
Theft - Dishonest (Barton and Booth, Holden and Small) and Intent to permanently deprive (Velumyl, Lavendar, Bagshaw)
- Intent to use force or threat of force
21
Q
Burglary
A
Section 9 Theft Act 1968
22
Q
Section 9(1)(a) - Burglary
A
Burglary is committed where D enters a building or part of a building as a trespasser. with intent to steal, inflict GBH, rape or cause criminal damage (but may not actually embark on the crime)
23
Q
Section 9(1)(b)
A
Burglary is committed when someone steals or inflicts GBH (or attempts either) after having entered as a trespasser
24
Q
Actus Reus - Burglary (Entry)
A
Doesn’t matter if the entry is “effective” or not (Brown - halfway in shop) (Ryan)
25
Actus Reus - Burglary (Building or part of a building)
‘Building’ - inhabited places such as houses, offices, shops, houseboats, caravans etc
- Not completed uninhabited or vehicles (Leathley - freezer container) (Seekings and Gould - lorry trailer)
- Or part of a building where a person doesn’t have permission - Walkington (behind shop counter)
26
Actus Reus - Burglary (Trespasser)
Collins (climbed in window, intent to rape)
- Someone may exceed their permissions (Jones and Smith)
- Permission obtained by fraud would still be trespassing
27
Mens Rae for both sections - Burglary
D must intentionally /recklessly trespass
28
Mens Rea - Burglary s9(1)(a)
D must have intention to commit one of offences at time of entering building
D is entering intending to steal anything he can find worth taking (conditional intent)
Sufficient for them to be guilty even if there is nothing actually worth stealing when they get there (AGs Ref 1 and 2 1979)
29
Mens Rea - Burglary s9(1)(b)
D must also have MR for ulterior offence (Theft/GBH) when committing or attempting to commit these offences
30
Insanity
The M’Naughten Test:
1. Defect of reason? Power of reasoning must be impaired, not just absent mindedness (Clarke - shoplift, depression + diabetes = could use defence)
2. Disease of the mind - mental or physical illness affecting the brain (Kemp - hardened artery) (Sullivan - Epilepsy) (Burgess - Sleepwalking) Should be an internal cause (Hennessey- diabetes) not external cause
3. Causing D to either not know the nature/quality of their act (Oye) or not know what they’re doing is wrong (Windle)
- Voluntary intoxication causing temporary psychosis (Coley) - not an insanity defence
31
Automatism
Bratty definition - act ‘done by the muscles without any control by the mind’
Mean AR was not voluntary and they can’t form MR = total defence
- Must come from external cause (Hill v Baxter) (AGs Ref) such as triggers/causes of PTSD (R v T)
- Self induced automatism - defence to specific intent crimes (Hardie) but usually not basic intent crimes (Bailey), as bringing on the ‘automatic’ state is reckless so they’d have the MR and no defence. Also applies to automatism caused by intoxication (Coley)
32
Voluntary Intoxication
- Generally not be a defence (Beard) unless specific intent offence that they have been charged with and D is so intoxicated that they simply cannot form intent (Sheehan and Moore - so drunk + set homeless man on fire)
- For basic intent offence = never be a defence as drinking on purpose is reckless so they have MR (Majewski)
- Drunken intent/ Dutch courage is still intent = not a defence (Gallagher)
33
Involuntary Intoxication
- May be a defence to all crimes (Kingston - drugged by friend + convicted of indecent assault)
- Also covers where D has knowingly taken a drug but it has an unexpected effect (Hardie)
34
Drunken Mistake
If mistake is about something that means D doesn’t have the MR - specific intent offence (Yes - defence) however basic intent (No defence) (Lipman) (Jaggard v Dickinson)
- If mistake is about amount of force needed for self defence this never works (Hatton)
35
Duress of Threats
The Graham Test
1. Was D impelled to act because they reasonably believed (i.e threats) that if they didn’t then death/ serious injury would result?
- Threat must be really serious (Valderamma Vega - family die if didn’t smuggle cocaine)
- Threat must be connected to crime they commit (Cole - robbery as owed money to moneylenders)
- D must feel threat is immediate (Hudson and Taylor - committed perjury during trial of X)
2. Would a sober person of reasonable firmness, sharing the same characteristics of D acted in same way?
- Include characteristics such as age, gender, tolerance but not low IQ (Bowen) or timidity (Martin DP)
- Self induced duress = not defence
e.g. knowingly joining a violent gang (Sharp) but may be considered where D didn’t know gang was criminal (Shepherd)
36
Duress of circumstances
- The Graham - as same in threats
- D feels impelled to act due to their circumstances/situation - but no specific worded threat (Willer) (Martin)
- Circumstances must lead to same threat of serious injury/death (Conway)
- Same characteristics are considered as duress of threats (Bell)
- Person must stop committing offence ASAP (Pommell)
37
Self Defence
Section 3 Criminal Law Act 1967 - ‘may use such force as is reasonable in the circumstances to prevent crime’
D must think it is necessary to act
- D doesn’t have to retreat (Bird)
- D must stop once threat is over (Hussain)
- Covers pre-emptive strikes and preparing for an attack (AGs Ref)
- All about D’s honest belief - can’t expect D to weigh up exactly how much force is needed
- Mistaken belief about threat is allowed as long as genuine (Gladstone v Williams)
- Drunken mistake is not considered (O’Connor)
Force must be reasonable
- Force must be proportionate to threat (Clegg) (Martin)
- Householders are allowed to apply more force when protecting themselves in their home (Collins)
38
Consent
Can person consent to this injury?
- Cannot consent to death (Pretty) (Nicklinson)
- Consent may be implied in everyday busy places (Wilson v Pringle)
- Can usually only consent to low level summary offences such as assault and battery but there are exceptions:
Horseplay (Aitken)
Sport (Barnes)
Sadomasochistic sexual activity (Slingsby)
Tattooing and branding (Wilson)
Surgery
Some situations you cannot consent to:
Certain sadomasochistic activity (Brown)
Off- the ball sport injuries (Johnson)
Illegal sports e.g. street fighting (Coney)
Acts not in the ‘public interest (Leach)
Is the consent genuine?
- V must have capacity to give valid consent (Burrell v Harmer)
- Consent must not be gained by fraud (Dica) (Tabassum)
- Submission is not the same as consent (Olugboja)
39
Assault
AR - Cause V to apprehend immediate unlawful personal violence
MR - Intentionally/Recklessly (Cunningham)
- V must apprehend or it’s not assault (Lamb)
- Can be through actions (Logdon), words (Constanza), silence (Ireland)
- Immediate could be still someone outside your house (Smith v Woking Police)
- Words can cancel out an assault (Tuberville v Savage)
40
Battery
AR - To apply unlawful force
MR - Intentionally/Recklessly (Cunningham)
- Any small amount of touching (Faulkner v Talbot)
- Touching clothes (Thomas), indirect force (Haystead), omission (Sanatana Bermudez)
41
ABH s47
AR - Assault/Battery occasioning actual bodily harm
MR - only requires MR for either assault or battery (Savage)
Definition- ‘interfering with health and comfort of the V’ (Miller)
- Battery leading to ABH (DPP v K)
- Psychiatric injury can amount to ABH (Chan Fook) or temporary loss of function (T v DPP)
42
GBH s20
AR - To inflict GBH or a wound
MR - Intend or be reckless about causing some level of harm (Belfon) (Mowatt)
Definition of wound - ‘break in the continuity of the skin’ (Eisenhower)
Definition of GBH - ‘really serious injury’ (Smith)
- Disease (Dica - HIV) or multiple (Brown and Stratton) ABH injuries can amount to a GBH charge
43
GBH s18
AR - To inflict GBH or a wound
MR- Intend GBH (Belfon - no intent so not s18) (Morrison - evading arrest making it s18)
44
Murder
Lord Coke (17th century)
“to cause the unlawful killing of a reasonable person in being and under the Kings peace with malice aforethought, express or implied”
45
Murder AR
Unlawful Killing
- Must be unlawful - not self defence, war, medical reasons etc (Re A) (Clegg)
- Can be an act or omission (Gibbins and Proctor)
Caused by D
- Factual causation (but for test) (White)
- Legal causation (de minimis - more than minimal) (Malcharek and Steel)
- No intervening acts (Victims own - Williams, third party - Jordan)
Of a reasonable creature in being
- Not in a permanent vegetative state or a foetus (AGs Ref no.3 1994) (Malcherek and Steel)
Under the Queens Peace
46
Murder MR
Two different types of intention that both amount to murder
- Express malice aforethought - intention to kill
- Implied malice aforethought- intention to cause GBH (R v smith - “really serious harm”) seen in R v Vickers
Intent can be proved using direct intent (desires exact outcome - Mohan) or oblique intent (virtual certainty- Woolin)
47
Attempts Act
| Attempts
S.1 Criminal Attempts Act 1981
D has intention to commit offence and does an act which is more than merely preparatory
48
Attempts AR
| Attempts
D does an act which is 'more than merely preparatory'
- D doesn't need to have performed the last act before crime/reached the 'point of no return' (AG's Ref (2) - attempted rape)
- Must have 'embarked on crime proper' (Guellefer - jumped on race track)
49
Attempts - Test for MMP
| Attempts
1. Had D moved from planning/preparation to execution/implementation?
2. Had D done an act showing that he was actually trying to commit full offence or only got as far of getting ready/equipping himself to do so?
(geddes - knife, rope and tape = just prep)
(Campbell - fake gun at post office = implementation)
(Jones - pointed gun at V = implementation)
50
Attempts MR
| Attempts
Intention for full offence
- Conditional = enough (Easom, AG's Ref 1+2)
- Attempt murder - must be intent to kill (not just GBH) - Whybrow (wired up soap dish - gave wife electric shock)
- Oblique intent = enough (Woolin - chucking baby to floor - murder was quashed)
51
Attempts - Impossibility
| Attempts
S.1(2) Criminal Attempts Act 1981
- D can be guilty of foeence which is physically impossible in exact circumstances but legally possible (Shivpuri - convicted of intentionally attemping to be dealing drugs even though full crime was impossible as he only had a suitcase of cabbage leaves.
52
Act (AR)
| Elements of a crime
Needs to be voluntary (Whooley - involuntary sneeze) (Hill v Baxter - swarm of bees)
53
Omission (AR)
| Elements of a crime
Usually omission can't be AR but 6 exceptions:
- Statutory obligation (Road Traffic Act - failure to wear seatbelt)
- Relationship (Gibbons + Proctor - starve child)
- Duty taken on (Instan - neglected aunt)
- Contractual duty (Pittwood - not putting crossing gate down at station)
- Duty of a public official (Dytham - police not breaking up a fight)
- Creating a dangerous situation (Miller - mattress on fire)
54
State of affairs
| Elements of a crime
Just by 'being somewhere' you are guilty (Larsonneur - illegal immigrant)
55
Mens Rea
| Elements of a crime
Direct intent - does D desire exact outcome (Mohan)
Obliwue intent - Is D aware that the outcome is a vertually certain consequence of their outcome (Woolin - chucking baby on floor)
Recklessness - Is D aware of risk buy takes it anyway - subjective test (Cunningham)
56
Causation
| Elements of crime
Only applies to consequence crimes (action has lead to an illegal consequence e.g ABH, Murder etc)
57
Factual Causation
| Elements of a crime
'But For' test - But for D's action would consequence happened? (White - not factual cause - poison in tea) (Pagett - factual cause - gf human shield)
58
Legal Causation
| Elements of a crime
'De minimus' - Is D act more than a minimal cause of the consequence (Malcharek and Steel - V ended up on life support)
| Elements of a crime
59
Intervening acts
| Elements of a crime
Must be no break in chain of causation
- Could be from victim's own unreasonable act (Roberts - jumping out of car window + sexual assault - reasonable) (Williams - jumped out of car + alleged robbery - unreasonable = break chain)
- Act of third party (Smith - soldier fight + negligent treatment and died = no break in chain) (Jordan - stabbed V as result of disturbance + poor medical treatment = broke chain)
- 'Act of God'
| Elements of a crime
60
Transferred Malice
| Elements of a crime
D can transfer malice from intended V to actual V + still fulfill MR aspect of crime
- Mitchell and Latimer - Transfer intent from person to person
- Pembliton - Can't transfer malice from person to property
| Elements of a crime
61
Coincidence and Contininuing Act Theory
| Elements of a crime
AR and MR have to happen at same time
ie. they have to coincide
If they don't , as long as it is part of a **continuous chain of connected events** - use continuining act theory to be flexible + say they still coincide (Thabo meli - pushes V off cliff but death not for 3 days)
- AR and MR must be for the same crime (Taaffe - smuggling
| Elements of a crime
62
Diminished Responsibility
| Voluntary Manslaughter - Diminished Responsibility
Section 52. Coroners and Justice Act 2009
| Voluntary Manslaughter - Diminished Responsibility
63
Part 1/4
| Voluntary Manslaughter - Diminished Responsibility
An abnormality of mental functioning caused by a recognised medical condition
**Byrne** - " a state of mind so different from that of ordinary human beings that a **reasonable man** would term it abnormal"
| Voluntary Manslaughter - Diminished Responsibility
64
Part 2/4
| Voluntary Manslaughter - Diminished Responsibility
Caused by a recognised medical condition (physical or psychological)
- Ahluwalia - battered spouse syndrome
- Campbell - epilepsy
- Gittens - depression
- Conroy - autism
- Squelch - paranoia
| Voluntary Manslaughter - Diminished Responsibility
65
Part 3/4
| Voluntary Manslaughter - Diminished Responsibility
Which substantially impaired his/her mental ability to either:
a) understand the nature of their conduct or
b)form a rational judgement or
c)excercise self-control
- Campbell (Frontal lobe damage + epileptic blackouts - clearly impaired ability)
- Golds, Lloyd - 'substantial' means 'not total, not trivial, or somewhere inbetween' - jury decides
| Voluntary Manslaughter - Diminished Responsibility
66
Part 4/4
| Voluntary Manslaughter - Diminished Responsibility
Which provides and explanation for the D's acts/omissions in being party to the killing.
- Tandy/Wood - Alcohol/Drugs not taken into account unless the person has Alcohol Dependency Syndrome
- Dietschmann - If there is abnormality + intoxication the test is: **despite the drink did the D still have an abnormality that impaired their responsibility**
| Voluntary Manslaughter - Diminished Responsibility
67
Loss of control
| Voluntary Manslaughter - LOC
Section 54 and 55 Coroners Justice Act 2009
| Voluntary Manslaughter - LOC
68
Section 54
| Voluntary Manslaughter - LOC
Murder may be reduced to vol. manslaughter where there exists:
- Loss of self control (Ahluwalia - set fire to husband) (Jewell - ‘snapped’)
- Loss of control had a qualifying trigger (S55)
- A person of D’s sex and age with a normal degree of tolerance would have acted a similar way in the circumstances.
DPP v Camplin - established by Lord Diplock in
Asmelash - intoxication not considered
Rejmanski - PTSD could be considered
| Voluntary Manslaughter - LOC
69
Section 55 Qualifying triggers
| Voluntary Manslaughter - LOC
- LOC was caused by D’s **fear of serious violence** to D or another identified person (Ward - fear against brother) (Dawes - QT doesn’t exist as D had initiated violence)
OR
- LOC caused by a **thing said or done** constituting circumstances of an **extremely grave character**, and caused D to have a **justifiable sense of being seriously wronged**
- Bowyer - D had no justifiable of being wronged as he committed burglary
- Clinton - sexual infidelity isn’t a trigger
- Hatter - relationship breakdown isn’t a trigger
| Voluntary Manslaughter - LOC
70
Gross Negligence Manslaughter
1. D owes V duty of care
(Adamko - disconnected hospital tube = breach DOC) (Singh - carbon monoxide poisoning = breach) (Litchfield - crashed ship killed 3 crew members = breach) (Wacker - 58 Vs suffocated in lorry - illegal immigrants = convicted)
2. D breaches that DOC (Stone and Dobinson - didn’t care for S sister as she was unable to care for herself = died)
3. Breach causes death of V - normal causation rules apply for factual + legal causation (Broughton - “breach made a significant more than minimal contribution to the death”)
4. Breach is so bad that it is more than just civil negligence and becomes criminal/ ‘gross’
- Gross negligence defined in Bateman - “beyond a matter of mere compensation + showing such disregard for life that it becomes a crime”
- Clarified in Broughton - “serious and obvious risk of death” (Rose - ) (Rudling - )
71
Assault
| Evaluation
- Unclear AR - e.g. ‘immediate’ doesn’t actually mean immediate (Smith v Woking police - outside of house)
- Inconistency of language used e.g. force/violence
- Covers a very broad range of actions e.g silent calls (Ireland), letters (Constanza), actions (Logdon) - yet all lead to the same outcome
- Has same sentence as battery even though no injury happens - fair?
| Evaluation
72
Battery
| Evaluation
- Has same sentence as assault even though force has been applied - fair?
- Covers B-road range of actions e.g. pulling skirt (Thomas) and punching people (Haystead)
- Force doesn’t actually mean ‘force’ - e.g. can be the slightest unwanted touch (Collins v Wilcox) - unclear
| Evaluation
73
ABH s47
| Evaluation
- ABH is not defined in the OAPA - we have had to introduce the ‘Miller test’ (health + comfort)
- Keep expanding type of injury that amount to ABH which means it is now extremely broad e.g. Chan Fook adds psychiatric injury
- Out of date language e.g. ‘occasioning’
- Is it fair to convict someone of a worse crime when they only had MR or assault or battery? (Savage)
| Evaluation
74
GBH s20
| Evaluation
- OAPA didn’t originally include disease transmission as we didn’t know about much about it in 1861 - added this to scope much later in Dica (2004)
- AR is more complicated than necessary - why do we need to decide if it’s a wound or GBH? Surely they mean the same thing (Wound is really serious - Eisenhower)
- No definition of GBH in the OAPA - introduced a vague definition in **Smith** ‘really serious’ injury
- Out of date language e.g. ‘grievous’ and ‘malicious’
- Misleading language - why does s20 include ‘malicious’ in MR when you can be reckless not intentionally causing the injury
- Is it fair to convict someone of a worse crime (GBH) when they only had MR for intending ‘some level of harm’ (less than GBH)?
| Evaluation
75
GBH s18
| Evaluation
- OAPA didn’t originally include disease transmission as we didn’t know about much about it in 1861 - added this to scope much later in Dica (2004)
- AR is more complicated than necessary - why do we need to decide if it’s a wound or GBH? Surely they mean the same thing (Wound is really serious - Eisenhower)
- No definition of GBH in the OAPA - introduced a vague definition in **Smith** ‘really serious’ injury
- Out of date language e.g. ‘grievous’ and ‘malicious’
- Is sentencing unfair - to increase maximum sentence from 5 years for reckless GBH to a maximum of life in prison for s18 intentional GBH?
- Should evading arrest automatically increase the charge to s18? Does this create a lack of clarity? (Morrison)
| Evaluation
76
General Points
| Evaluation
- ‘Piecemeal development’ - law on non fatal offences found in different places
- OAPA is from 1861 - language is archaic + out of date
- Lots of offences are poorly defined (or not defined)
- Discrepancies in sentencing making difference between the 5 offences too huge
- Confusion about difference between assault and common assault (which includes battery)
- Too many overlapping defences
| Evaluation
77
Non Fatal Offences - Reforms
| Evaluation
**-** 1998 Consultation on reforming OAPA created a new draft Bill (not passed)
- Clear hierarchy of offences from most serious to least
- Newly defined offences using modern language
- Changes to sentencing: GBH with intent (life), GBH reckless (7 years), ABH (5 years), assault and battery (6 months)
**-** 2015 Law Commission Report
- Updated 1998 suggestions with new suggested definitions 'physical assault' and 'threatened assault'
| Evaluation
78
Consent
| Evaluation
- Should be legalise consent for death / euthanasia? (Pretty -
| Evaluation
