Criminal Law

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Criminal Law
2013-05-21 12:52:43
criminal law

Criminal law flashcards
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  1. s1(1) Criminal Damage Act 1971
    • AR
    • A person destroys or damages property
    • belonging to another
    • without lawful excuse

    • MR
    • intending to destroy or damage property belonging to another OR being reckless as to whether property belonging to another may be destroyed.
  2. s1(2) Criminal Damage Act 1971
    • AR
    • A person destroys or damages ANY property (whether belonging to himself or someone else)

    • MR
    • Intending to destroy or damage property or being reckless as to whether property may be damaged or destroyed.
    •       + ulterior MR
    • Intending to endanger the life of another or being reckless as to whether another's life might be endangered as a result of the damage or destruction of property.
  3. s10(1) CDA 1971
    Wide definition of 'property' including pets and plants.
  4. s10(2) CDA 1971
    • Property belongs to another if:
    •    someone has custody or control over it;
    •    a proprietary interest in it;
    •    a charge on it.
  5. s5(2)(a) CDA 1971
    D shall have a lawful excuse if:

    He believed he had consent of the person entitled to give permission; or

    He believed he had the consent of the person he thought was entitled to give consent;or

    He believed he would have had the consent of the person entitled to give permission if that person had known about the damage and circumstances; or

    He believed he would have had the consent of the person he thought was entitled to give consent if they knew of the damage and circumstances.
  6. s5(2)(b) CDA 1971
    D will have a lawful excuse for criminal damage if:

    He believed property was in need of immediate protection AND the the means adopted for protecting property were reasonable in the circumstances.
  7. s5(3) CDA 1971
    D's belief in s5(2)(a) or (b) does have to be reasonable as long as it is honestly held.
  8. Hardman
    Criminal damage does not have to be extensive- drawing on pavements with soluble chalks can amount to criminal damage.
  9. R v Smith
    If D honestly believes property belongs to him (ie not another) he will lack MR for criminal damage, regardless of whether belief was reasonable or not.

    In this case D damaged fixtures in house belonging to landlord, wrongly believing they belonged to him.
  10. R v Dudley
    If D intends to endanger the life of another through committing criminal damage, MR will be complete for aggravated criminal damage (s1(2) CDA 1971) even if in fact nobody's life is ever endangered.
  11. S1(1) Sexual Offences Act 2003
    • AR
    • Penile penetration of the vagina, anus or mouth of another person who at the time does not consent.

    • MR
    • Intention to penetrate and absence of reasonable belief that the complainant consents.
  12. s79(2) SOA 1971
    Penetration is a continuing act so any withdrawal of consent during penetration suffices for the AR of rape.
  13. s74 SOA 1971
    Basic rule of consent- a person agrees if he agrees by choice and has the freedom and capacity to make that choice.
  14. R v Dougal
    If a complainant cannot remember whether he/she consented or not will be fatal to prosecutions case.
  15. R v Bree
    Drunken consent is still consent, even if complainant consumed large quantities of alcohol.

    However, capacity to consent may evaporate before C loses consciousness. If C has temporarily lost capacity to consent, he/ she is not consenting.
  16. R v Kirk
    A complainant who 'submits' to intercourse, does not consent.
  17. s1(2) SOA 2003
    D's reasonable belief that C consented should be determined by 'all circumstances' (age, experience, intelligence etc.)
  18. s2 SOA 2003
    Assault by penetration

    • AR
    • Sexual penetration of vagina or anus of another person with part of D's body or anything else without C's consent.

    • MR
    • The penetration is intentional and D lacks reasonable belief that C consents.
  19. s3 SOA 2003
    Sexual assault

    • AR
    • D touches C sexually without C's consent.

    • MR
    • The touching is intentional and D lacks reasonable belief that C consents.
  20. s78 SOA 2003
    Touching will be 'sexual' if it is clearly sexual, or (if ambiguous) because because of its nature it may be sexual and it is because of D's purpose.
  21. s76 SOA 2003
    Irrebuttable presumptions of lack of consent

    s76(a)- D intentionally deceived C as to nature or purpose of the act.

    s76(b)- D intentionally induced C to consent to the act by impersonating a person know personally to C.
  22. s75 SOA 2003
    Rebuttable presumptions

    s75(1)- If D did the act and one of the six circumstances in s75(2) existed and D knew they existed, the burden of proof shifts to D to rebut the presumption. If D discharges this burden of proof, prosecution must prove issues of consent beyond reasonable doubt.

    • s75(2)
    • (a) At the time of the act or immediately before, any violence was used against C.
    • (b) C feared violence would immediately be used.
    • (c) C was unlawfully detained and D was not.
    • (d) C was asleep.
    • (e) Because of C's disability, C would not have been able to communicate consent.
    • (f) Any person caused C to be intoxicated, enabling C to be stupefied or overpowered at the time of the act.
  23. R v Jheeta
    Narrow interpretation of s76 irrebuttable presumptions. In this case, although there had been some deceptions, C had not actually been deceived as to the nature or purpose of the act (sexual intercourse). Some deception is not enough.
  24. R v Devonald
    C was deceived as to the 'purpose' of the sexual act, which was to embarrass, rather than being for the sexual pleasure of 'Cassie'.
  25. ss5-7 SOA 2003
    Replicated ss1-3 offences for situations where C is under 13.

    In these sections, neither consent nor reasonable belief in consent are relevant issues.
  26. s9 SOA 2003
    • AR
    • Person 18 or over sexually touch a person under the age of 16, or sexually touch a person under the age of 13.

    • MR
    • If victim is between 13-15, D intended to touch sexually and lacked reasonable belief C was under 16.

    If victim was 12 or under, the touching was intentional.
  27. Fagan v Metropolitan Police Commissioner
    Simple assault

    Any act which intentionally or recklessly causes another person to apprehend immediate and unlawful harm.
  28. Read v Coker
    A conditional threat can still cause C to 'immediately' apprehend unlawful harm because it represents an unjustified restriction of personal liberty.
  29. R v Burstow
    It may be sufficient that a victim fears D could strike at any moment (ie immediately) eg. stalker.

    Very serious psychiatric injury could be GBH.
  30. R v Ireland
    Words can amount to an assault as a thing said is a thing done.
  31. R v Venna
    The MR for simple assault is intention or recklessness as to simple assault.
  32. R v Spratt
    The recklessness test for simple assault is subjective.
  33. DPP v K
    Physical assault may be indirect (eg placing an object in someone's path).
  34. Haystead
    A man who hit a woman carrying a baby inflicted a physical assault on the baby.
  35. R v Miller
    ABH does not have to be serious, could be a bruise, scratch or swelling.
  36. R v Chan-fook; R v Ireland
    ABH may include psychiatric injury but must be a recognisable conditions, not a strong emotion.
  37. R v Savage; R v Parmentar
    For s47 offence, MR is intention or recklessness as to the assault only. Therefore there is strict liability as to ABH element of s47 OAPA.

    For s20 offence, MR is intention or recklessness as to some harm (ABH). Do not have to foresee or intend GBH.
  38. Moriarty v Brookes
    A wound requires both layers of the skin to be broken.
  39. JJC v Eisenhower
    Bruising and internal bleeding are not wounds as skin is not broken.
  40. DPP v Smith
    GBH is 'really serious harm'.
  41. Coke's common law definition of murder
    Unlawful killing of any reasonable creature in being under the Queen's peace with malice aforethought.
  42. R v Maloney
    Direct intent- killing was D's aim, purpose or goal.
  43. R v Nedrick; R v Woolin
    Indirect intent- A jury may find D intended an outcome if it was a virtually certain consequence of his actions and he realised this was the case.
  44. s2(1) Homicide Act 1957
    Voluntary manslaughter- diminished responsibility

    An abnormality of mental function;

    that arose from a recognised medical conditions;

    • that substantially impaired D's ability to
    • understand the nature of his conduct, to form a rational judgment, or to exercise self-control;

    and provides an explanations for D's actions or omissions.
  45. R v Byrne
    Abnormality of mental function is a state of mind so different from that of ordinary human beings that the reasonable being would term it abnormal.
  46. R v Wood
    For diminished responsibility, if an alcoholic kills while intoxicated, jury should focus on alcohol consumed as a direct result of D's alcoholism.

    • "Where a man becomes so drunk that he suffers, temporarily, from an abnormality of mind, he may also be acquitted of murder but convicted of manslaughter by reason of diminished responsibility applying the same
    • tests that I have outlined, but that verdict would only be open to you if you found it more likely than not that his consumption of alcohol was truly involuntary. A man's act is involuntary if, and only if, he could
    • not have acted otherwise. Giving in to a craving is not an involuntary act, even if it is very difficult to do otherwise. An alcoholic not
    • suffering from severe withdrawal symptoms, who tops up his overnight level or who later chooses to accept a drink after he's reached his normal quota, is not drinking involuntarily."
  47. R Dietschmann
    Abnormality of mind does not have to be the sole cause of D's act. Therefore, provided that abnormality of mind substantially impaired D, the partial defence may succeed, even if D was drunk.

    Has the defendant satisfied you that, despite the drink, his mental abnormality substantially impaired his mental responsibility for his fatal acts, or has he failed to satisfy you of that? If he has satisfied you of that, you will find him not guilty of murder but you may find him guilty of manslaughter. If he has not satisfied you of that, the defence of diminished responsibility is not available to him.

    • D reacted badly to the death of his aunt and had attempted suicide. He was released from prison a month after her death and began drinking heavily. He was also prescribed
    • prozac by his doctor. Two weeks after his release, he was drinking with two men at the home where he was staying. They were dancing and the watch given to him by his aunt fell off his arm. The appellant accused
    • Nicholas Davies of breaking it. He then punched and kicked him to death in a violent attack. He was convicted of murder and appealed.
  48. ss54-55 Coroners and Justice Act 2009
    Voluntary manslaughter- loss of control

    Killing resulted from loss of self-control, the loss of self-control had a qualifying trigger and a normal person of D's sex and age might have acted in the same/ similar way.
  49. s54(1)(a) Coroners and Justice Act 2009
    For loss of control, the killing must have resulted from (been caused by) a loss of self-control.
  50. s54(4) Coroners and Justice Act 2009
    Self-control defence will not apply if D acted in a considered desire for revenge.
  51. s54(2) Coroners and Justice Act 2009
    For loss of self-control, there is no need for loss of self-control to be a sudden reaction (ie for D to suddenly snap)
  52. ss55(3)-(6) Coroners and Justice Act 2009
    D's loss of control will have a qualifying trigger if:

    s55(3)- D's loss of control was attributable to fear of violence against D or another.

    s55(4) D's loss of control was attributable to something said or done which (a) was of an extremely grave character and (b) caused D to have a justifiable sense of being wronged.

    s55(5) D's loss of control may a combination of factors in ss55(3)+(4).

    BUT s55(6)(a)+(b)- ss55(3)+(4) will not apply if the acts were incited by D himself for the purpose of providing an excuse to use violence.

    s55(6)(c)- sexual infidelity will not amount to a qualifying trigger under s54(4)
  53. R v Clinton, Parker & Evans
    For loss of self-control, sexual infidelity may provide part of context for s55(4) but will not be sufficiently grave in itself.
  54. R v Malcharek & Steel
    Death occurs on 'irreversible death of brain stem' so switching of life support machine does not 'cause' death.

    For AR of homicide, D's act or omission must be 'substantial, operating cause of death' (ie it is relevant and plays a part).
  55. R v Pagett
    In law, D's act or omission need not be the sole or main cause of death provided it made a 'significant' (more than minimal) contribution to the death.
  56. R v White
    'But for' test for factual causation of death.
  57. R v Blaue
    You take your victim as you find them. Victim refused blood transfusion after D's attack and died.
  58. R v McKechnie
    Victim died of stomach ulcer because doctors could not operate due to head injuries inflicted by D. D was legally liable for victim's death.
  59. R v Watson
    D may potentially cause death even where no physical injury is inflicted.
  60. R v Poulton
    A child must be wholly expelled from mother and have independent existence to be a human being.
  61. Attorney General's Reference No.3 of 1994
    D stabbed girlfriend while pregnant. Child born premature and died later. MR could not have transferred to unborn child at initial stabbing as not yet a human being.
  62. R v Jordan
    Medical negligence may break chain of causation if 'palpably wrong'. Treatment not connected to initial wound, which was still healing.
  63. R v Cheshire
    Misdiagnosis and errors are inevitable in any medical treatment and therefore foreseeable. They do not break chain of causation. Second cause would have to be so overwhelming as to make initial wound merely part of the history (R v Smith)
  64. R v Lamb
    Constructive manslaughter requires a criminally unlawful act (ie AR and MR of a crime).
  65. R v Watson
    Was unlawful act for constructive manslaughter dangerous? Would sober, reasonable person watching events unfold believe it carried the risk of some harm to some person.
  66. R v Adomako
    Test for manslaughter by gross negligence:

    • 1) Duty of care
    • 2) Breach of duty
    • 3) Risk that D's conduct could cause death
    • 4) Causal link between breach and death
    • 5) Jury's conclusion that D's conduct was criminal.
  67. R v Willougby
    For Adomako duty of care in manslaughter by gross negligence, whether or not there is DofC is up to jury, but if it is obvious (like parent to child) they will be informed there is a DofC.
  68. R v Singh
    For risk that D's conduct could cause death in case of manslaughter by gross negligence, the circumstances should be such that a reasonably prudent person would foresee risk of death (not serious injury).
  69. R v Batemen
    Just because victim's family can sue in tort does not mean D will be liable for MS by GN.
  70. R v Tabassum
    If victim does not know the nature and quality of the act, valid consent cannot be given. (D gave consent to breast inspection by qualified doctor, not by D.
  71. R v Dica; R v Konzani
    There is a distinction between consenting to risk of contracting sexual disease and consenting to risk of infection of a fatal disease. Therefore, D will be liable for GBH if has sex with unwitting partner, knowing he has HIV virus.
  72. Attorney General's Reference No.6 of 1980
    Even when consent is validly given it may not amount to a defence for public policy reasons (youths in a fistfight)

    Consent will be a valid defence for the following 'assaults':

    • surgical operations,
    • dangerous exhibitions;
    • properly conducted sports
  73. R v Brown
    Criminal convictions may arise from sporting encounters if 'beyond the spirit of the game'- taking into account all factors of sport.

    Ritual circumcision, tattooing and ear-piercing may all be consent to 'assaults'.
  74. R v Emmett, R v Brown
    In Brown, Lord Templeman refused to 'invent a defence' for consensual violent sexual acts. Therefore criminal law may intervene if, as the risk of harm goes beyond 'merely transient or trivial injury'.
  75. R v Wilson
    Branding buttocks of wife 'too close to tattooing' to be a criminal act.
  76. Palmer v R
    It is accepted that a person may use reasonable force in defending themselves.
  77. s3(1) Criminal Law Act 1977
    A person may such force as is reasonable in all circumstances in the prevention of crime or assisting arrest.
  78. R v Williams (Gladstone)
    For s3(1) Criminal Law Act or common law self-defence, what is 'reasonable' is objective, but what constitutes 'all circumstances' is subjective.

    Therefore, if D makes a mistake of fact in believing force was necessary for prevention of crime etc, his use of force may be reasonable in the circumstances provided his belief was honestly held.
  79. R v O'Grady; R v Hatton
    If the mistaken need for self-defence was induced by intoxication, this not succeed as a defence.
  80. R v Dadson
    D cannot rely on facts of which he was not aware at the time of using force for self-defence.
  81. Shaw v R
    For self-defence, the jury should look at all the circumstances as D honestly perceived them before deciding whether force was reasonable or not (ie subjective test). Therefore threat may seem more serious to an elderly or frail individual than a young, healthy man.
  82. R v Martin
    Psychological evidence found to be inadmissible for self-defence  (paranoid personality disorder). D's actions were not 'reasonable.'
  83. Children Act 2004 s58
    'Mild smacking' is allowed as reasonable chastisement, but any punishment that causes visible bruising, scratches, minor swellings could lead to prosecution.
  84. R v Graham
    For duress, D must have:

    Subjective: believed he or someone else was threatened with death or serious injury; and

    Objective: a person of reasonable firmness sharing D's characteristics would have given way to the threat.

    This CANNOT be used as a defence for murder.
  85. R v Kingston
    If D has MR for a specific offence, he can never rely on any kind of intoxication (voluntary or involuntary) as a defence.
  86. R v Allen
    Underestimating the extent of inebriation is still voluntary intoxication.
  87. R v Hardie
    If D does not know of the side effects of a substance (in this case Valium), intoxication will be involuntary.
  88. R v Majewski
    In basic intent crimes, D's recklessness in becoming intoxicated is in itself sufficient to form MR.
  89. R v Heard
    Sexual assault is a basic intent offence, despite requirement of 'intent' for MR. 'Properly understood' distinction between basic/ specific intent crimes is the presence of 'ulterior intent.'
  90. Attorney General for Northern Ireland v Gallagher
    Dutch courage will not amount to a defence under intoxication.

    If D formed MR before AR occurred, offence would not normally be complete. However, Lord Denning held that this was no defence in cases where D intended to commit a crime and then got drunk before committing it. D's 'wickedness of mind before he got drunk is enough to condemn him, coupled with the act he intended to do and did so.'
  91. Jaggard v Dickinson
    D was allowed to rely on lawful excuse after she broke a window she wrongly believed belonged to a friend, despite the fact that she was intoxicated and criminal damage is a basic intent crime.
  92. s2 Road Traffic Act 1988
    • AR
    • Cause the death of another person by driving a mechanically propelled device dangerously on a road or other public place.

    No MR- strict liability.
  93. s2A(1)-(3) Road Traffic Act 1988
    To be 'dangerous' for causing death by dangerous driving (s2 RTA 1988):

    s2A(1)- D must drive in a way far below the standard of the reasonable competent driver; or

    s2A(2)- D's vehicle is in such a bad condition that it would obviously be dangerous to other road users.

    s2A(3)- Dangerously is defined in terms of danger of injury or serious injury, or damage to property (no reasonable person test)
  94. s3 Road Traffic Act 1988
    • AR
    • Cause death of another person by driving a mechanically propelled device without reasonable due care and attention, or without reasonable care for other road users.

    No MR- strict liability.
  95. McCrone v Riding
    Standard of driving is no way related to degree of proficiency or experience of individual driver.