Paper 2 - Criminal Law Flashcards

Question

s21 - Theft Act 1968

Answer 1

Section 21 - Blackmail “A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces.”

Answer 2

A Demand Case: Collister v Warhurst – Police officers’ conversation within earshot of the victim was an implied demand. With Menaces Case: R v Clear – Menaces must be serious enough to influence an ordinary person. The Demand is Unwarranted Case: R v Harvey – Even if D believes the demand is justified, it’s not "proper" to support it with threats of violence. With a View to Gain or Intent to Cause Loss

Answer 3

Blackmail is an indictable offence, punishable by up to 14 years’ imprisonment.

Answer 4

Section 22 - Handling Stolen Goods "A person handles stolen goods if (otherwise than in the course of the theft), knowing or believing them to be stolen, he dishonestly receives the goods, or dishonestly undertakes or assists in their retention, removal, disposal, or realisation by or for the benefit of another person, or if he arranges to do so."

Answer 5

Stolen Goods Obtained by dishonest means Case: R v Basildon Magistrates – Goods left in bins were still stolen property. Handling Case: R v Kanwar – Assisting her husband in keeping stolen property was handling. Knowledge or Belief Suspicion is not enough—there must be a real belief or actual knowledge. Case: R v Hall – A "could be" belief is not enough; must be more than suspicion. Dishonesty The handling must be dishonest by the standards set in Ivey v Genting Casinos: Would ordinary decent people see it as dishonest?

Answer 6

Indictable offence, with a maximum penalty of 14 years' imprisonment. Handling is separate from theft—you cannot be guilty of handling the goods you yourself stole. Case: R v Bloxham – A person cannot handle their own theft.

Answer 7

Section 3 - Making off without Payment “A person who, knowing that payment on the spot for any goods supplied or service done is required or expected, dishonestly makes off without having paid as required or expected and with intent to avoid payment of the amount due, shall be guilty of an offence.”

Answer 8

Goods or services have been supplied Example: ordering a meal in a restaurant or filling a car with petrol. Payment is required or expected on the spot Case: R v McDavitt – D who tried to leave a restaurant without paying wasn’t guilty because he had not yet “made off”. Defendant makes off Case: R v Brooks and Brooks – “Making off” must be interpreted in its everyday sense. Dishonesty The defendant must act dishonestly according to the Ivey v Genting Casinos test: Would ordinary decent people consider the conduct dishonest? Intention to avoid payment permanently Case: R v Allen – D said he intended to pay later, so he was not guilty; intent to permanently avoid payment is required.

Answer 9

The offence is triable either way. Maximum sentence: 2 years’ imprisonment on indictment. Normally some form of community service.

Answer 10

Section 1(1) - Basic Criminal Damage “A person who, without lawful excuse, destroys or damages any property belonging to another, intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged.”

Answer 11

Destruction or damage Case: Roe v Kingerlee – Smearing mud on a cell wall was held to be damage. Case: A v R – Spitting on a coat was not damage because it could easily be wiped off. Property belonging to another – Defined in Section 10(1), this includes any tangible property owned, possessed, or controlled by someone other than the defendant. Mens rea – The defendant must either: Intend to destroy/damage the property, or Be reckless as to whether it would be damaged. Case: R v G and R – Two boys who accidentally caused fire damage were reckless because they knew there was a risk.

Answer 12

Section 1(2) - Aggravated Criminal Damage "A person is guilty if they commit criminal damage intending to endanger life, or being reckless as to whether life would be endangered by the damage." It must be shown that the damage itself could endanger life (e.g., smashing a gas pipe or setting a fire). The property does not have to belong to another—a person can commit aggravated criminal damage to their own property. Case: R v Sangha – Even if life was not actually in danger, D can be guilty if they were reckless about the risk.

Answer 13

Section 1(3) - Arson Where an offence under either s1(1) or s1(2) is committed by fire, it is charged as arson. - The damage must be caused by fire. - Can apply to both basic and aggravated criminal damage. Case: R v Miller – D accidentally started a fire and failed to prevent further damage. His reckless inaction made him liable for arson.

Answer 14

Section 4 - Punishment of Offences "A person guilty of any other offence under this Act shall on conviction on indictment be liable to imprisonment for a term not exceeding ten years" Offence Maximum Sentence: Basic criminal damage: 10 years’ imprisonment Aggravated criminal damage: Life imprisonment Arson: Same as above (depends on severity)

Answer 15

Section 5 - Lawful Excuse (Defence) s5(2)(a): Belief in consent If the defendant honestly believed the person entitled to the property consented or would have consented to the damage. - Case: Denton – D set fire to his employer’s property believing he had consent. s5(2)(b): Protection of property If the defendant believed the damage was necessary to protect property belonging to themselves or someone else, and the means of protection were reasonable. - Case: Jaggard v Dickinson – A drunken belief in consent was still accepted because the test is subjective (based on the defendant’s belief).

Answer 16

Section 2 - Fraud by False Representation A person is guilty of fraud if, and only if, he: - Dishonestly makes a false representation, and - Intends, by making the representation, to make a gain for himself or another, or to cause a loss to another or to expose another to a risk of loss.

Answer 17

False Representation A representation is a statement or assertion made to another person, which can be in the form of: Written (e.g., a document), Spoken (e.g., verbally lying) or Conduct (e.g., body language or gestures). - Case: R v Silverman – D falsely represented that he had been working for a company to get a mortgage. Dishonesty: - Case: R v Ghosh (prior to Ivey) – The old test required both the defendant to be dishonest by the standards of ordinary people and for the defendant to realise that their conduct was dishonest. Intention to Gain or Cause Loss Case: R v Hamilton – D obtained money from a bank by misrepresentation with the intent to gain for himself. Gain or Loss It is not necessary for the gain or loss to actually occur—the intent to gain or cause loss is enough, even if the fraudulent act does not lead to the result.

Answer 18

Defence: A defendant can raise a defence to fraud under section 2 if: They believe the representation is true or they had a lawful excuse to make it. Maximum Sentence: Fraud by false representation is an indictable offence, and the maximum sentence is 10 years’ imprisonment.

Answer 19

Section 3 - Fraud by Failing to Disclose Information “A person is in breach of this section if he dishonestly fails to disclose to another person information which he is under a legal duty to disclose, and intends, by failing to disclose the information, to make a gain for himself or another, or to cause loss to another or to expose another to a risk of loss.”

Answer 20

Failure to Disclose Information: The defendant must have omitted (not said) something they had a legal obligation to disclose. Legal duties to disclose can arise from: - Contractual relationships - Statutory requirements - Fiduciary relationships Example: An individual applying for life insurance must disclose serious medical conditions; failing to do so dishonestly can amount to fraud under s3. Legal Duty to Disclose: There must be a legal, not just moral, obligation to provide the information - Insurance contracts - Mortgage applications - Job applications involving vetting or regulation - Financial disclosures in court Case: R v Rai – D failed to inform the local council that his mother had died after they agreed to fund home improvements based on her needs. He was under a duty to inform them of the change in circumstances. Dishonesty: The omission must be dishonest. Intent to Gain or Cause Loss: Gain/loss refers to money or property, and does not have to actually happen—the intention alone is enough.

Answer 21

Fraud by failing to disclose information is triable either way. The maximum penalty is 10 years’ imprisonment on indictment.

Answer 22

Section 4/6 - Fraud by Abuse of Position “A person is in breach of this section if he— (a) occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person, (b) dishonestly abuses that position, and (c) intends, by means of the abuse of that position— (i) to make a gain for himself or another, or (ii) to cause loss to another or expose another to a risk of loss.”

Answer 23

Abuse of a Position of Trust Common examples include: -Employees handling company money -Carers managing a vulnerable person’s finances -Family members acting under power of attorney Case: R v Valujevs – Defendants who acted as unofficial agents for migrant workers abused their position by taking excessive fees from their wages. Abuse of the Position The defendant must abuse that position—by acting dishonestly: - Failing to act when they should - Exploiting the role for personal gain - Deliberately harming the financial interests of the person they’re supposed to protect Dishonesty Intent to Gain or Cause Loss Actual gain/loss is not required—intent is enough.

Answer 24

Triable either way Maximum sentence: 10 years’ imprisonment on indictment

Answer 25

Section 11 - Obtaining Services Dishonestly “A person is guilty of an offence under this section if he obtains services for himself or another— (a) by a dishonest act, and (b) knowing that the services are made available on the basis that payment has been, is being, or will be made, and (c) intends not to pay or not to pay in full.”

Answer 26

Obtaining Services Example: Climbing over a train barrier to avoid paying but still travelling. By a Dishonest Act The obtaining must involve a positive act (e.g. deception, manipulation, or bypassing a system). A mere omission (failure to act) is not enough for this offence. Case: R v Sofroniou – Fraudulently obtained bank services through deception; services were provided and payment was expected. Knowledge That Payment is Required It is not fraud if the person genuinely believes the service is free or that payment is not required. Intention Not to Pay or Not to Pay in Full It’s the intent at the time of obtaining the service that matters.

Answer 27

Triable either way (heard by magistrates or crown) Maximum penalty: 5 years’ imprisonment on indictment.

Answer 28

Clear Legal Framework - Offences such as theft (s1 Theft Act 1968) have a precise definition - The law is well-developed through statute and case law, e.g. R v Morris (appropriation), Oxford v Moss (information isn’t property). Evaluation: This makes the law accessible and understandable, ensuring consistency in prosecutions. Modernisation Through the Fraud Act 2006 The Fraud Act 2006 replaced outdated deception offences, creating three broad fraud offences: - Fraud by false representation (s2) - Fraud by failure to disclose (s3) - Fraud by abuse of position (s4) Evaluation: This provides flexibility and covers new types of dishonesty, including cybercrime, more effectively. Protection of Victims’ Property - protect ownership rights and the public interest in security and honesty. - Offences like burglary (s9 Theft Act 1968) address violations of both property and personal safety. Evaluation: Strong deterrent effect and public confidence in justice system.

Answer 29

Unclear Definitions - Key terms like “dishonesty” and “intention to permanently deprive” are open to interpretation. - After R v Ghosh was overruled by Ivey v Genting Casinos, dishonesty is now assessed objectively, which some say ignores the defendant’s state of mind. Evaluation: This can unfairly criminalise those who didn’t realise their conduct was dishonest, especially vulnerable or naive individuals. Overlap and Complexity - The distinction between theft, fraud, and handling stolen goods can be confusing. - E.g. a person who receives goods knowing they are stolen may be charged with handling (s22 Theft Act), but the line between that and theft or fraud can blur. Evaluation: This can cause inconsistent charges and complexity for juries. Robbery and Burglary Cover a Wide Range of Conduct - Robbery (s8 Theft Act 1968) covers anything from minor force to violent attacks. - Burglary covers both theft and intent to commit other crimes, making the offence broad and potentially unfair in some cases. Evaluation: The same label can apply to very different levels of harm, which may lead to inconsistent sentencing. Criminal Damage: Subjective Defences - Under s5 Criminal Damage Act 1971, defences rely on the defendant’s subjective belief, e.g. belief in consent (Jaggard v Dickinson). - This can justify objectively unreasonable actions. Evaluation: Could undermine public safety and lead to unjust acquittals.

Answer 30

Logical Structure: Actus Reus + Mens Rea Prevents punishing accidents or involuntary acts. Example: Hill v Baxter – D not liable if act is involuntary (e.g. attacked by bees). Evaluation: This structure ensures only morally blameworthy conduct is criminalised. Flexibility Through Different Levels of Mens Rea The law recognises varying degrees of blameworthiness: - Intention (highest culpability) - Recklessness (less serious) - Negligence (used in some offences) Example: R v Cunningham – recklessness means foreseeing a risk and unjustifiably taking it. Evaluation: This allows the law to match culpability to the seriousness of the offence. Coincidence Rule Ensures Fairness Both actus reus and mens rea must exist at the same time. - But courts use the continuing act theory or series of acts to apply the rule flexibly. Case: Fagan v MPC – Mens rea formed after the act, but court treated it as a continuing act. Evaluation: Prevents overly technical defences and ensures justice.

Answer 31

Uncertainty in Defining Intention - Courts have struggled to define indirect (oblique) intention. - Jury directions can be confusing after cases like R v Woollin. Evaluation: This lack of clarity creates uncertainty in serious offences like murder, where the defendant's life is at stake. 2️⃣ Subjectivity of Recklessness The shift from Caldwell to Cunningham created confusion. - The current test (from R v G and R) is subjective, asking what D actually foresaw. Evaluation: While fairer to the defendant, it can be harder to prove, especially if D is young or inexperienced. 3️⃣ Strict Liability Offences Undermine Mens Rea For some offences (e.g. selling food past its expiry date), no mens rea is required. Case: Harrow LBC v Shah – Newsagents convicted despite not knowing they sold a lottery ticket to someone underage. Evaluation: Strict liability may protect the public, but it can punish the morally innocent, which some argue is unfair.

Answer 32

Custodial: - Offender is sent to prison - Serious crimes (e.g., violence) Community: - Punishment + rehabilitation in the community - Lesser crimes, first-time offenders Fine: - Offender pays money - Minor offences, financial penalties Discharge: - No punishment (absolute/conditional - a second crime committed in a period of time would result in jail) - Very minor offences

Answer 33

Under s142 Criminal Justice Act 2003, courts must consider the following five aims when sentencing: Punishment – to reflect the seriousness of the offence. Deterrence – discourage the offender (individual deterrence) and others (general deterrence) from offending. Rehabilitation – to reform the offender’s behaviour. Protection of the public – to prevent harm to society (e.g., through imprisonment or restraining orders). Reparation – to compensate the victim (e.g., through compensation orders or restorative justice).

Answer 34

These make the offence more serious and may lead to a harsher sentence. Examples include: - Use of violence or weapons - Targeting a vulnerable victim (e.g. elderly or disabled) - Offence was planned - Previous convictions - Offending while on bail Example: Assaulting a paramedic would be more serious due to the victim’s public service role.

Answer 35

These make the offence less serious and may reduce the sentence. Examples include: - First-time offender - Showing remorse - Early guilty plea (can reduce sentence by up to 1/3) - Cooperation with police - Mental illness or difficult personal circumstances Example: An offender with no criminal record who pleads guilty at the first opportunity may receive a reduced sentence.

Answer 36

- Age and maturity (especially young adults) - Mental health issues - Addiction (if linked to the offence) - Financial situation (especially for fines) The court aims to balance the seriousness of the offence with the fairness of punishment for the individual.

Answer 37

Prepared by probation services, these give the court insight into: - The offender’s background - Risk of reoffending - Suitability for community-based sentences

Answer 38

The Sentencing Council provides guidelines for most offences. Judges and magistrates must follow these unless it is unjust to do so.

Answer 39

Discharge: - No or minimal punishment - Minor, first-time offences Referral Order: - Restorative justice and rehabilitation - First guilty plea Youth Rehabilitation Order: - Community sentence with tailored conditions - Non-custodial, but serious enough Detention and Training Order: - Custodial + community supervision - Serious or repeat offences Long-term detention (s90/91): - Serious offences (e.g. murder) - Grave crimes only - s90 mandatory life sentence for under 18s Fines/Compensation: - Financial punishment or victim restitution - Minor offences, based on ability to pay

Answer 40

- Under s44 Children and Young Persons Act 1933, courts must have regard to the welfare of the child or young person. - This principle is central in youth sentencing and often outweighs punitive aims. Evaluation: This helps ensure the sentence supports the young person’s development and reintegration into society.

Answer 41

Though not identical to adult sentencing, youth sentencing still considers: - Rehabilitation – primary focus. - Accountability – making the offender take responsibility. - Prevention of offending – protecting the public by reducing reoffending. - Reparation – encouraging the young person to make amends to the victim.

Answer 42

- The court considers the offender’s chronological age and emotional maturity. - Younger children may not fully understand the consequences of their actions. Example: A 14-year-old with low emotional maturity may receive a Youth Rehabilitation Order instead of custody.

Answer 43

- The more serious the offence, the more likely the sentence will be custodial. - For minor offences, non-custodial options like referral orders or YROs are preferred. Example: A violent assault may warrant a Detention and Training Order, while petty theft may lead to a Referral Order.

Answer 44

- A first-time offender is more likely to receive a lenient, rehabilitative sentence. - A young person with a history of reoffending may face stricter measures. - An early guilty plea can reduce the sentence, showing acceptance of responsibility. - Evidence of remorse may result in a more lenient or restorative approach.

Answer 45

- Courts may consider whether the offender has parental support, stable housing, or other protective factors. - Where possible, sentences aim to keep young offenders in the community with family supervision.

Answer 46

Reports from the Youth Offending Team (YOT) give insight into: - Risk of reoffending - Personal background - Suitability for community programmes These reports are crucial in deciding whether custody is necessary or if alternatives are more appropriate.

Answer 47

Custodial Sentences: - Purpose: Detain the offender to protect the public from serious harm. - Strength: For serious crimes like murder, rape, and violent offences, custodial sentences ensure public safety and act as a deterrent. - Example: A life sentence for murder reflects the gravity of the crime and protects society. Community Sentences: - Purpose: Rehabilitation and reintegration into society. - Strength: Community-based sentences, such as Youth Rehabilitation Orders (YROs) and Referral Orders, allow young offenders to remain in society under supervision, which reduces the stigma and helps with rehabilitation. - Example: A Youth Rehabilitation Order can be used for less serious crimes and can include curfew, supervision, or educational programmes. Fines and Discharges: - Purpose: Financial penalties or minimal punishment for minor offences. - Strength: For minor offences, fines are a proportionate punishment and avoid the social cost of incarceration. - Example: A conditional discharge for a first-time minor offender ensures a non-punitive, rehabilitative approach.

Answer 48

Custodial Sentences: - Weakness: Custody can reinforce criminal behaviour, especially if offenders are placed in overcrowded and harsh conditions. - Problem: Prisons often fail in rehabilitation, leading to a high risk of reoffending. The overuse of custodial sentences also contributes to overcrowding and can be expensive for the state. Community Sentences: - Weakness: For serious offenders, community sentences may not be sufficient to protect the public or deter future crimes. - Problem: There can be lack of enforcement, with some offenders failing to comply with conditions like curfews or rehabilitation programmes. Fines: - Weakness: Fines may be ineffective for those with limited financial means and may not have a sufficient deterrent effect. - Problem: Wealthier offenders might find fines less punitive, while poorer offenders may struggle to pay, leading to potential imprisonment.

Answer 49

Aggravating Factors: - Purpose: Reflect the seriousness of the offence and ensure appropriate punishment. - Strength: Aggravating factors such as using violence, targeting vulnerable victims, or committing the offence in front of children ensure that the offender is held accountable for more severe conduct. - Example: A repeat offender of domestic violence may face a harsher sentence due to their previous record. Mitigating Factors: - Purpose: Reflects the individual circumstances of the offender, ensuring fairness. - Strength: Mitigating factors like guilty pleas, remorse, or mental illness allow for a more proportional and humane approach, rather than a purely punitive one. - Example: An offender with a mental health condition may receive treatment-based alternatives rather than a custodial sentence. Offender’s Personal Circumstances: - Purpose: To assess whether a more rehabilitative sentence is appropriate. - Strength: Sentencing allows flexibility based on the age, maturity, and mental health of the offender, particularly for young people or those with special needs. - Example: A young offender might be given a Referral Order to address underlying issues like education or family problems.

Answer 50

Aggravating Factors: - Weakness: Overemphasis on aggravating factors may lead to overly harsh sentences, especially when the offender’s personal circumstances are not fully considered. - Problem: This could create disproportionate penalties for offenders with mitigating circumstances, leading to inconsistent justice. Mitigating Factors: - Weakness: While mitigating factors ensure fairness, too much leniency could encourage repeat offending, especially if the offender is not held fully accountable. - Problem: A too lenient approach may undermine public confidence in the criminal justice system. Personal Circumstances: - Weakness: There is a risk that subjective factors such as mental illness or youth may be used to avoid responsibility for serious crimes. - Problem: This could undermine the principle of personal responsibility in sentencing.

Answer 51

Punishment (Retribution): - To punish the offender for the crime committed. - Life sentence for murder. Deterrence: - To prevent the offender and others from committing similar crimes. - Prison sentence for drink driving. Rehabilitation: - To reform the offender and reintegrate them into society. - Community order with a drug rehab requirement. Protection of the Public: - To protect society from dangerous offenders. - Life sentence for a serial rapist. Reparation: - To make amends for the harm caused to the victim. - Compensation for vandalism or community service.

Answer 52

Rehabilitation: - To reform the offender and reduce the risk of reoffending. - Youth Rehabilitation Order with education and supervision. Prevention of Reoffending: - To ensure the young person does not commit further crimes. - Referral Order to engage the offender in restorative justice. Education and Development: - To provide opportunities for the young offender’s personal growth. - Training programmes or school attendance orders. Restorative Justice: - To repair harm and help the young offender take responsibility. - Reparation Order for the offender to compensate the victim. Protection of the Public: - To protect the public from dangerous or harmful young offenders. - Detention and Training Order for serious offenders.

Answer 53

Justice and Fairness: - Punishment (Retribution) ensures that offenders receive appropriate consequences for their actions, promoting a sense of justice for victims and society. - Deterrence sends a clear message that criminal behaviour will result in significant consequences, which can deter others from committing similar crimes. Rehabilitation and Reform: - Rehabilitation provides offenders with the opportunity to change and reintegrate into society as law-abiding citizens, reducing the risk of reoffending. - Focus on education, training, and mental health support can help young or first-time offenders become productive members of society. Public Safety: - Protection of the public ensures that dangerous offenders are kept away from society, thus reducing harm to the community. - custodial sentences or long-term detention may be necessary for those who pose a significant threat, such as violent or repeat offenders. Restorative Justice: - Reparation offers the opportunity for offenders to make amends for the harm they've caused, which helps repair the relationship between the offender and the victim. - Restorative justice empowers victims, provides closure, and can encourage offenders to take responsibility for their actions.

Answer 54

Overemphasis on Punishment: - Punishment may be overly harsh, especially for minor offences, leading to disproportionate sentences and a focus on retribution rather than rehabilitation. - Custodial sentences may not effectively address the underlying causes of criminal behaviour, leading to recidivism. Ineffectiveness of Deterrence: - Deterrence may not work for all offenders, particularly those who commit crimes impulsively, under duress, or due to mental health issues. - Harsh sentences aimed at deterrence may not always reduce crime rates and may be perceived as excessive, leading to public dissatisfaction. Challenges in Rehabilitation: - Rehabilitation can be resource-intensive, requiring significant investment in education, therapy, and community support programs, which may not always be available or accessible. - Rehabilitation efforts may fail if offenders are not willing to engage or if the underlying causes of their behaviour (e.g., addiction, family issues) are not adequately addressed. Issues with Public Protection: - Focusing heavily on protection of the public may lead to overuse of custodial sentences for those who could be better rehabilitated or monitored in the community, contributing to prison overcrowding. - Long sentences may not always ensure that offenders are truly rehabilitated, and they may return to society with little support or guidance, increasing the likelihood of reoffending. Limitations of Reparation: - Reparation may not be suitable for all crimes, particularly serious offences (e.g., violent crime), where it could be difficult for the offender to meaningfully repair the harm done. - Victims may feel pressured or re-traumatised by the process, especially in cases where they have suffered significant harm, making restorative justice inappropriate in some situations.

Paper 2 - Criminal Law Flashcards

(78 cards)