Criminal Law

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Criminal Law
2012-09-24 06:44:24
english law criminal crime gdl

Criminal law - Unit 1
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  1. How are offences classified?
    Summary offences, either way offences or indictable offences.

    • Summary = magistrates
    • Either way = magistrates or Crown Court
    • Indictable = Crown Court
  2. Describe either way offences.
    These offences are middle range. For example: theft, dangerous driving, burglary and criminal damage valued in excess of £5000. The final venue is laid down by ss 18-22 of the Magistrates Court Act 1980. They are initially heard by the Magistrates. If they feel they cannot deal with the case it will go to Crown Court.The current maximum sentence is 6 months imprisionment for Magistrates (this may change to 12 months when the s154 Criminal Justice Act 2003 is in force). If the Magistrates are happy to hear the case the D can opt for a Crown Court trial.
  3. With regard to the burden of proof what is the 'golden thread'?
    Woolmington v DPP [1935] - Viscount Sankey: "Throughout the web of the English criminal law one golden thread is always to be seen, that is the duty of the prosecution to prove the prisoner's guilt..."

    However D may have to prove a defence (i.e. insanity) this will be on a lower standard - on the balance of probability.
  4. What are the components of a criminal offence?
    Guilty conduct - actus rea

    Guilty state of mind - mens rea

    The absence of a valid defence
  5. What does the actus rea of an offence comprise?
    An act or sometimes a failure to act;

    The existance of certain circumstances at teh time of D's conduct;

    Certain consequences flowing from the act
  6. What is the actus rea of criminal damage?
    The destruction or damage of property

    Which belongs to somone other than D
  7. What is the actus rea of murder?
    The killing of a human being
  8. Is rape a conduct crime or a results crime?
    A conduct crime. Note the actus rea of rape is only made out if the victim did not consent.
  9. Is criminal damage a conduct crime or a results crime?
    A results crime. Property must be damaged or destroyed.
  10. Can a crime result from a state of affairs?
    Yes. R v Larsonneur:

    French national deported from Ireland to UK. Found to be illegally in UK despite the fact it was not her doing.
  11. Can you be criminally liable for omissions?
    General rule: no. But there are exceptions.
  12. What are the exceptions for being criminally liable for omissions?
    Where there is:

    • A special relationship,
    • A contractual duty to act, or;
    • A statutory duty to act
  13. With regard to criminal liability for omissions - What is the effect of a special relationship?
    Where there is a special relationship between D and victim (family ties, assuption of responsibility) D can incur liability for failing to act.

    • R v Gibbins and Proctor - child starved to death
    • R v Stone and Dobinson - Anorexic sister died of blood poisoning
  14. Special relationships - R V Ruffell [2003]
    Drug user tried to help O/D'ing friend. Failed. Liable and convicted of manslaughter
  15. Special relationships - R v Smith [1979]
    Husband and wife is a special relationship and a duty is owed for omissions.
  16. Criminal liability for omissions. Contractual duties. What are some examples? Name a case.
    Doctor, lifeguard, fire fighter. Care for patients, take reasonable steps tp maintain the safety of the public.

    R V Pittwood [1902] - Railway crossing keeper. Left gate open. Person killed. Convicted of manslaughter
  17. Name a statutory duty to act?
    Road Traffic Act 1988, s170 - You must stop after being involved in an accident.
  18. Liability for omissions.

    What is the difference between a statutory duty to act and a contractual duty/special relationship (in terms of the outcomes)?
    Failure to comply with a statutory duty to act lead to prosecuition for the omission - often a fine or endorsement.

    Failure to comply with a contractual dut/special relationship to act will result in a criminal prosecution for the consequences of the omission. Manslaughter etc - a prision sentence.
  19. What duty does a person have when they create a dangerous situation?
    They have a duty to remove the danger.

    R v Miller [1983] - Sleepy squatter, fire. Criminal damage
  20. Actus rea. Are you criminally liable for involuntary acts?

    Hill v Baxter [1958]. Driver attacked by swarm of bees example. Not liable for consequent accident.

    Gives rise to the defence of automatism. D must be blameless.
  21. Mens rea

    What are the two main criminal states of mind?
    Intention and recklessness
  22. Mens rea

    Is recklessness enough to show mens rea in crimes of specific intent?
    No. The prosecution must show intention
  23. Mens rea

    What is direct intent?
    When the D's primary purpose is to bring about a particluar consequence.
  24. Mens rea

    Is motive relevant to criminal liability?
    No. Motive is irrelevant to criminal liability. It is taken into account in sentencing.
  25. Mens rea - indirect/oblique intent

    What will the jury consider?
    1. Was the consequence virtually certain to occur from D's act or omission?

    2. Is so, did D himself foresee the consequences as virtually cetain to occur?

    If yes to both, mens rea is made out and D did have intent.
  26. What is R v Nedrick authority for?
    Mens rea. Indirect intent.

    • 1. Was the consequence virtually certain to occur from D's act or omission?
    • 2. Is so, did D himself foresee the consequences as virtually cetain to occur?
  27. Mens rea

    Which case affirmed the Nedrick test?
    R v Woollin [1999]. 3 month old killed by throwing against a wall.
  28. Mens rea

    Where the jury is considering indirect intent what legislation applies?
    S8. Criminal Justice Act 1967.

    What the D foresaw must be proved:

    a. the test is what he himself foresaw, not what a reasonable person would have foreseen, but;

    b. what a reasonable person would have foreseen is a good indication (which the jury can take into account) in deciding what D did  foresee.
  29. Mens rea

    What does the prosecution have to prove when ulterior intent applies?
    An additional element of mens rea. Burglary - D must know he is a trespasser (basic mens rea) and there must be ulterior intent to steal, cause criminal damage or inflict grevious bodily harm (the ulterior intent).

    D does not have to do these things but must be shown to intend them.
  30. Mens rea

    What is meant by a specific or basic intent crime?
    The only mens rea that will suffice for conviction is the mens rea of intention.

    Examples are murder and offences under s18 of the Offences Against the Person Act 1861 (Shooting or attempting to shoot, or wounding with intent to do grievous bodily harm).
  31. Mens rea

    What is the definition of a basic intent crime?
    One where either intention or recklessness will sufice as the mens rea.
  32. Mens rea

    Recklessness. How is justifiction of risk assessed?
    According to the standards of the reasonable person.
  33. Mens rea

    Recklessness. What is the test?
    There is only one test. The Cunningham recklessness test. This applies to any criminal offence that specifies recklessness as part of the mens rea.
  34. Mens rea

    What is the Cunningham recklessness test?
    Whether D foresaw a risk (of whatever is required by the specific offence) and went on to take it, and the risk was unjustified.
  35. Mens rea

    Is there an objective test of recklessness? i.e. Measured by the acions of the reasonable person.
    No. R v Caldwell was overruled by the HoL in R v G. There is no objective test - only the subjective test in R v Caldwell.
  36. Mens rea

    What is transferred malice?
    When D has the malice (intention or recklessness) to comit a crime against one victim (or piece of property) the mali ce is transferred so that the mens rea he had against the original victim is transferred to the actus reas he commits against another, unintended vicim.

    For example - I throw a stone at Ben, it hits and injures Andreas the malice will be transferred even though I did not intend to hit Andreas.
  37. Mens rea

    Which case is authority for the doctrine of transferred malice?
    R v Latimer [1886]. Man hits another with belt in pub.
  38. Mens rea

    What limits the doctrine of transferred malice? Which case is authority?
    The doctrine only works if the actus reas committed is of the same same type of crime as D originally had in mind. Only the victim can be different.

    R v Pembliton (1874)
  39. Mens rea

    List an offence requiring proof of negligence. 
    • Road Traffic Act 1988
    • S3. Careless and inconsiderate driving

    This crime is one of the few where you can incur criminal liability for falling below the standard of the reasonable person.
  40. Mens rea - negligence

    Can a learner driver be judged by the standard of the reasonable learner?

    • McCrone v Riding [1938]
    • The standard is an objective standard, impersonal and universal, fixed in relation to the safety of other users of the highway.
  41. Mens rea

    What offence can a driver who falls far below the reasonable standard be charged with?
    Dangerous driving.

    • S2. Road Traffic Act 1988.
    • S2(a) the way he drives falls far below what would be expected of a competent and careful driver, and;
    • S2(b) it would be obvious to a competent and careful driver that driving in that way woud be dangerous
  42. Mens rea

    Strict liability offences.  Is mens rea required?
    No. Neither mens rea nor negligence is required.
  43. Mens rea

    What is the offence created by S5 of the Road Traffic Act 1988?

    What type of offence is it?
    Drink driving. It is strict liability
  44. Mens rea

    Which case is authority for identifying strict liability offences?
    Sweet v Parsley [1970].
  45. Mens rea
    What guidance did Lord Reid lay out in Sweet v Parsley?
    Guidance on strict liability offences.

    1. If the wording of a statute is clear that an offence is strict liability that is the end of the matter.

    2. If there is no indication, there is a presumption that the courts will read in words appropriate to require mens rea.

    3. This presumption can be overturned if reasoning can be found to make this necessary.

    4. If not all sections of a statue mention mens rea this is not conclusive proof of strict liability.

    5. If a section is silent on mens rea the court may go outside statute to establish the intention of Parliament.
  46. Mens rea

    What is meant by the coincidence of acuts rea and men rea of an offence?
    To prove criminal liability mens rea and actus rea must coincide in time. Or the circumstances must shwo there is an implied series of events and from the outset D must be involved in criminal behaviour.
  47. Mens rea

    What cases are authority for the coincidence of mens rea and actus rea?
    Thabo-Meli v R [1954] and R v Le Brun [1991].

    Thabo = body (still alive) thrown onto rocks.

    Le Brun = wife assaulted, unconscious, dropped onto pavement while being dragged.
  48. Mens rea

    Is ignorance of the law a defence?
    Ignorance is never a defence.
  49. Mens rea

    Is there a defence of mistake?
    No. A mistake of fact may mean that the necessary mens rea does not exist.
  50. Mens rea

    Can an unreasonable mistake negate he mens rea of an offence?
    Yes. The question of whether a mistake of fact is reasonable is largley irrelevant. A genuinely held unreasonable belief can negate mens rea.

    But, the more unreasonable a belief the less likely a jury will believe it.
  51. Criminl Damage Act 1971

    What are the offences under this act?
    • s1(1) - simple criminal damage
    • s1(2) - aggravated criminal damage
    • s1(3) and s1(1) - simple arson
    • s1(3) and s1(2) - aggravated arson
  52. Criminal damage

    Does there have to be extensive damage to make out a charge of criminal damage?
    No. In Hardman v CC of Avon and Somerset Constabulary [1986] the damage was chalk drawings on pavement.

    The requirement is that there is some expense involved in putting the harm right.
  53. Criminal damage

    What did the court say in Roe v Kingerlee [1986]?
    That whether damage has been caused is a matter of degree and is to be determined in a commonsense way.
  54. Criminal damage

    What is the actus reas of criminal damage?
    • a. damage or destruction
    • b. of property
    • c. belonging to another
  55. Criminal damage

    How does the Criminal Damage Act 1971 property as belonging to another?
    It belongs to any person:

    • a. having the custody or control of it;
    • b. having in ti any proprietary right or interest; or
    • c. having charge of it
  56. Criminal damage

    If I kick in the door of my house can i be charged with criminal damage?
    Yes. IF;

    • 1. I rent the house
    • 2. I co-own the house
    • 3. If the house is mortgaged
  57. Criminal damage

    To be intend or be reckless what must the D do?
    1. Intent to damage/destroy property or be reckless as to such damage/destruction; and

    2. Know that the property belongs to another or be reckless as to whether the property belongs to another
  58. Criminal damage

    Which case is authority for the fact that if you believe property is your own you lak the mens rea of criminal damage?
    R v Smith [1974] - tenant damages landlord's fixtures.
  59. Criminal damage

    What are lawful excuses for criminal damage?
    s5 Criminal Damage Act 1971

    • s5(2)(a) 
    • - belief of consent of owner for the damage
    • - belief of consent from person thought to be entitled to give permission
    • - belief he would have consent of person entitled to give it if he knew
    • - belief he woud have conesent of the person he thought was entitled if he knew

    • s5(2)(b)
    • - he believed property was in immediate need of protection (his own or anothers)
    • - he believed that the means of protection adopted were reasonable having regard to the circumstances

    • s5(3)
    • - D's belief does not have to be reasonable so long as it is honestly held.
  60. Criminal damage - aggravated

    What are the differences between simple and aggravated criminal damage?
    In aggravated criminal damage the property can belong to the D.

    There is also the ulterior mens rea that D must have intended to endanger life or have been reckless.

    The test is the Cunningham test.
  61. Criminal damage - aggravated

    Is it the damage or the action of causing the damage that must endanger life under s1(2)(b) of the 1971 Act?
    s1(2)(b) makes it clear that by damage or destruction D intended to endanger life or was reckless to its possibility.

    The damage must cause the danger not the action that caused the damage.
  62. Assault

    Which statute sets out simple assault?
    S39 Criminal Justice Act 1988
  63. Assault

    Can words amount to assault?
    Yes, R v Ireland 

    A thing said is a thing done - Lord Steyn
  64. Assault

    Conditional threats. If you don't shut up I'll hit you!

    Is that assault?
    Yes. The law sees that such an imposition is an unjustified restriction on liberty. It is unwarranted and D is liable for assault.

    Read v Corker (1853)