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Problem Question Offences Flashcards

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1
Q

How is causation established?

A

Two tests:

  1. factual causation - ‘but for’ test: R v White
  2. legal causation - uses notions of culpability, responsibility, and foreseeability to select the most appropriate cause as the basis for liability: R v Pagett
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2
Q

What is an intervening act?

A 
An intervening act is something that occurs after the defendant's act that breaks the chain of causation and relieves the defendant of responsibility for the prohibited consequence. Not all events, only if (a) they are an overwhelming cause of death or (b) an unforeseeable occurrence. R v Roberts
Three categories:
1. acts of the victim
2. acts of third parties
3. naturally occurring events
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3
Q

What is the thin skull rule?

A

This is an exception to the rule that the defendant is liable for the foreseeable consequences of his actions. Key case: R v Blaue.

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4
Q

Contract obligations?

A

If a person fails to do something, they are bound by contract to do, they will be criminally liable if harm or injury arises from their omission. R v Pittwood

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5
Q

What is direct intention?

A

Direct intention corresponds with the everyday meaning of intention. It was defined in Mohan.

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6
Q

What is oblique intention?

A

This is broader and includes foreseeable and inescapable consequences of achieving the desired result. Woollin!

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7
Q

How did the test for oblique intention evolve?

A

R v Hyam - High degree of probability
R v Maloney - Natural consequences
R v Hancock and Shankland - Greater degree of probability, greater degree of foresight
R v Woollin - More than a slight risk of harm
R v Woollin - Virtually certain consequences

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8
Q

What is subjective recklessness?

A

A person would be liable for an offense that can be committed recklessly only if he (a) caused the actus reus and (b) realized that there was a risk that he would cause the actus reus: Cunningham

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9
Q

What is objective recklessness?

A

Until R v G, Caldwell and Cunningham worked together but it seemed a lot easier to establish objective recklessness. Test: did the defendant create an obvious and serious risk that property would be damaged or destroyed? If so, did she fail to recognize a risk that would have been obvious to the reasonable man?

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10
Q

R v G (subjective) recklessness

A

Test: was the defendant aware of a risk of the damages/destruction of property and in the circumstances, was it unreasonable for her to take that risk?
Now there are two subjective tests: Cunningham and R v G

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11
Q

What is transferred malice?

A

Transferred malice is a means of imposing liability for the unplanned consequences of deliberate wrongdoings. Transferred malice operates only of the actus reus of the offense committed matches the actus reus of the offense planned. See R v Pembliton and Latimer

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12
Q

What are inchoate offences?

A

A means of imposing liability on a defendant who started to take steps towards the commission of an offence by stopped before the offence was completed

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13
Q

Inchoate offences: Attempt

A

Criminal Attempts Act 1981, section 1(1):
If, with intent to commit an offense to which this section applies, a person does an act that is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offense.

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14
Q

What it the AR and the MR for attempt?

A

Actus reus: an act (not an omission) that is more than merely preparatory to the commission of an offence.
Mens rea: intention to commit the substantive offence

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15
Q

What does more than merely preparatory mean?

A

Initial test: proximity between the defendant’s act and the completed offence. Before the act, liability for attempt was quite narrow but afterward, case law has broadened it
See R v Griffin and R v Geddes

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16
Q

What are the two kinds of conspiracy?

A 
Common law conspiracy (to defraud, to corrupt public morals)
Statutory conspiracy (to commit any other offence)
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17
Q

What are the AR and the MR elements for statutory conspiracy?

A

Under the Criminal Law Act 1977, s1(1):
AR (3): agreement between the parties to a specified course of conduct
MR (2): intention to be a party to an agreement (to commit an offence)

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18
Q

Complex conspiracies: R v Shillam

A

Facts: The appellant and others were charged with conspiracy to supply cocaine after they each purchased drugs from a single supplier with the intention of selling it on. None of the defendants who purchased cocaine knew each other but they all knew the supplier.
Legal Principle: The Court of Appeal upheld the appeal on the basis that the appellant was not part of a conspiracy with the other defendants. Conspiracy requires a single joint design between all the conspirators. There must be a shared criminal purpose to which they have all agreed rather than a series of separate but similar plans.

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19
Q

For the MR of conspiracy
R v Anderson 1986
Yip Chiu-Cheung 1995
Saik 2006

A

It is sufficient that there was knowledge that the course of conduct would amount to the commission of an offence and intention to play some part in the conduct in furtherance of the offence: R v Anderson
Leading case: Saik - the House of Lords clarified that the parties must intend every element of the principal offence, even if the offence itself could be satisfied by a mental state short of intention

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20
Q

Serious Crime Act 2007 s44-46

A

Introduced the three offences of assisting or encouraging an offence and replaced the common law offence of incitement.

  1. Intentionally encouraging or assisting an offence s44
  2. Encouraging or assisting an offence believing that it will be committed s45
  3. Encouraging and assisting offences believing that one or more will be committed
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21
Q

AR and MR of the three Serious Crime Act offences

A

Section 44
AR: the defendant does an act capable of encouraging or assisting the commission of an offence
MR: the defendant intends to assist or encourage the commission of an offence
Section 45
AR: the defendant does an act capable of encouraging or assisting the commission of an offence
MR: the defendant believes that the offence will be committed and he believes that his act will encourage the commission of offences
Section 46
AR: the defendant does an act capable of encouraging or assisting the commission of one or more offenses
MR: the defendant believes that one or more offences will be committed and he believes that his act will encourage the commission of offences

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22
Q

What defences are available for encouraging or assisting offences?

A

Section 50 Serious Crimes Act 2007:
creates a defence of reasonableness that will allow a person to avoid liability if they knew (s50(1)) or believed (s50(2)) that circumstances existed that made it reasonable for them to act as they did. S50(3) lists factors that are to be considered when determining whether it was reasonable for a person to act as he did

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23
Q

What are the AR and MR elements of murder?

A 
AR: 
- Act/omission
- Unlawful killing
- Reasonable person
- Under Queen's peace
MR:
- Intention to kill (express malice)
- Intention to cause GBH (implied malice)
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24
Q

Malice aforethought definition

A

Cunningham 1982:

intention to kill (express malice) or cause GHB (implied malice)

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25
What is oblique intention to kill or cause GBH?
D had some other aim in mind other than causing death or GBH but his actions rendered death or serious injury a virtual certainty and he realized this was the case.
26
What is the sentencing difference between murder and manslaughter?
Murder has a mandatory sentence of life imprisonment whereas manslaughter confers discretion in sentencing to the judge
27
What is the defence of diminished responsibility?
The defence of diminished responsibility recognises that it is less culpable to kill when the mind is disturbed than it is to kill when the mind is operating normally. Section 52 of the Coroners and Justice Act 2009/ section 2 of the Homicide Act 1957. If successful, reduces murder to voluntary manslaughter.
28
What is the defence of loss of control?
Introduced by s54 and 55 of the Coroners and Justice Act 2009. If successful, reduces murder to manslaughter.
29
What are the requirements for loss of self-control?
a) D's act and omissions in doing or being a party to the killing resulted from D's loss of self-control b) the loss of self-control had a qualifying trigger, and c) a person of D's sex and age with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in a similar way to D
30
When can loss of self-control not apply?
If there is a revenge element If the things said or done were incited as an excuse to use violence If the thing said or done was sexual infidelity
31
What amounts to a qualifying trigger for loss of self-control?
a) things said or done, which b) constituted circumstances of an extremely grave character, and c) caused D to have a justifiable sense of being seriously wronged
32
In what situations does involuntary manslaughter apply?
Involuntary manslaughter covers situations in which the defendant has caused death but does not satisfy the mens rea requirement of murder.
33
What are the elements of Unlawful Dangerous Act (constructive) manslaughter?
``` Common law offence - Was the defendant's act unlawful? - Was the unlawful act dangerous? - Did the unlawful and dangerous act cause death? See R v Lamb Must be a positive act - R v Lowe Test of dangerousness - R v Church The defendant must realize his act is dangerous - R v Newbury and Jones ```
34
What are the elements of Gross Negligence manslaughter?
The offence is established if the defendant has been so negligent that criminal liability is appropriate - Does the defendant have a duty towards the victim? - Is the defendant in breach of duty? - Did the breach of duty cause death? - Should the conduct be characterized as criminal?
35
What is duty of care?
Two ways in which this can arise: Duty of care: based on ordinary principles of negligence (Adomako). Breached by poor performance of the duty. Duty to act: a person is liable for failure to act only if he has a duty to do so
36
What are the AR and MR elements for rape and where can they be found?
Sexual Offences Act 2003, section 1(1) AR: Penile penetration by A of the vagina, anus or mouth of B and absence of B's consent MR: Intentional penetration and a lack of a reasonable belief in B's consent
37
Definition of consent
Sexual Offences Act 2003, section 74: | A person consents if he agreed by choice, and has the freedom and capacity to make that choice
38
Order of figuring out consent
First try section 76 (conclusive presumptions), if yes don't bother with other section Then, section 75 (evidential presumptions) Finally, section 74 (no presumptions)
39
How is belief in consent determined?
Sexual Offences Act 2003, s1(2) Whether a belief is reasonable is to be determined having regard to all the circumstances including any steps A has taken to ascertain whether B consents The tricky part: intoxication - affects actus reus in terms of capacity to give consent but it also impairs the mens rea in terms of the impact on D's belief on consent See R v Bree 2008
40
What are the AR and MR elements for assault by penetration and where are they found?
Sexual Offences Act 2003, s2(1) AR: Non-penile sexual penetration of the vagina or anus and absence of B's consent MR: Intentional penetration and A lacks a reasonable belief in B's consent
41
What is meant by 'sexual'?
Sexual Offences Act 2003, s78 Two part test from H 2005 when touching is not of its nature sexual Other e.g.s W 2005, Osmani 2006
42
What are the AR and MR elements for sexual assault and where are they fount?
Sexual Offences Ace 2003, s3(1) AR: sexual touching and absence of B's consent MR: intentional touching and A lacks a reasonable belief in B's consent
43
What is meant by 'touching'?
Sexual Offences Act 2003, s79(8) - any part of the body - with anything else - through anything
44
What are the provisions for child victims of sexual offences?
sections 5, 6, 7 and 9 of the Sexual Offences Act 2003
45
What is the definition of assault?
D intentionally or recklessly caused V to apprehend immediate and unlawful violence
46
What are the AR and MR elements of assault?
AR: apprehension of force MR: intentionally or recklessly (Cunningham) causing V to apprehend force
47
What is the definition of battery?
D intentionally or recklessly inflicts unlawful force on V
48
What are the AR and MR elements of battery?
AR: where D comes directly into contact with V (Fagan) MR: intentionally or recklessly inflicting force on V
49
What are the AR and MR elements of GBH with intent?
OAPA 1861, section 18 AR: wounding or causing GBH MR intention or recklessness thereto + ulterior intent
50
What are the AR and MR elements of wounding/inflicting GBH?
OAPA 1861, section 20 AR: wounding or causing GBH MR: intention or recklessness to some harm
51
What are the AR and MR elements of assault occasioning actual bodily harm?
OAPA 1861, section 47 AR: common assault or battery occasioning in ABH MR: MR of assault/battery only
52
What are the AR and MR elements of theft?
Theft Act 1968 AR (3): Appropriation of property belonging to another MR (2): Dishonesty and intention to permanently deprive
53
Key case for dishonesty?
R v Ghosh 1982 Determined that dishonesty cannot be determined by a purely subjective standard and formulated a two-stage test: 1. Was what was done dishonest according to the ordinary standards of reasonable and honest people? 2. Did the defendant realize that reasonable and honest people regard what he did as dishonest? Both need to be answered 'yes' for D to be dishonest
54
What are the AR and MR elements for robbery?
Theft Act 1968, s8(1) AR (4): Actus reus of theft, force (or fear of force), to another person, at the time or immediately before the theft MR (2): Mens rea of theft and intentional use of force
55
R v Dawson 1977
The level of force may be minimal as well as more serious violence
56
R v Clouden 1987
Force may be applied to the person or their property
57
R v Hale 1978
Shows that appropriation can be a continuing act in relation to robbery
58
What are the AR and MR elements for burglary?
Theft Act 1968, s9(1) AR (4): entry, building, as a trespasser, actual offence MR (2): intention/recklessness as to trespass, ulterior intent
59
R v Brown 1985
If D only puts part of his body into the building, this will suffice to satisfy the entry element
60
R v Collins 1973
Trespass requires entry without permission so, if the defendant believed he had permission prior to entering, then he would not be a trespasser and cannot be liable for burglary
61
R v Walkington 1979
It was held that a part of a building was determined by the presence of a psychical demarcation, such as separate rooms, notices or some other form of barrier such as a counter
62
R v Jones and Smith 1976
It was held that a person who enters a building for an unlawful purpose will be a trespasser in that building, irrespective of any express or implied permission to enter that has been extended to him
63
What are the AR and MR elements for fraud by false representation?
Fraud Act 2006, section 2(1) AR: Making a false representation MR: dishonesty, knowing that the representation is false, intention to make a gain or cause a loss
64
What are the elements of a false representation?
It must be untrue or misleading | It can be express or implied

Criminal law (2 decks)

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