Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
38 Cards in this Set
- Front
- Back
|
Criminal law |
module 1 |
|
|
3 philosophies |
liberalism, legal moralism, paternalism and purpose of criminal law. |
|
|
2 sage test of criminalisation |
good moral reason justifying criminalising particular conduct , consider all other things should the conduct be criminalised |
|
|
liberal |
based on autonomy, list of values for us to decide against, wrong=punishable |
|
|
Harm principle |
Feinberg, preventing harm to people other than the actor. |
|
|
Offence principle- |
Proposed criminal prohibition, necessary to prevent serious offences to the person |
|
|
legal moralism |
morally legitimate to prohibit conduct as it is inherently immoral, even though harm is not caused to anyone. |
|
|
Hart-Devlin, |
Hart: no harm means no business for the criminal law, Devlin however says prosecuting it could dissolve moral consensus that society is built upon. |
|
|
Paternalism |
Prohibition is justified. it is necessary to prevent the harm, to the actor himself. |
|
|
CONSENT |
Active response of an individual-valid consent, as voluntary informed decision by competent person, free of influence and self aware/automatism, individual autonomy problem, not everyone is rational, + external factors come into play, is there any choice , they chose to do it they get punished, criminal culpability based on choice . Affirmation given, |
|
|
Actus reus, |
Physical element of the offence, it is different, for every offence, must be voluntary willed conduct, can be positive act or omission |
|
|
Liability for omission, |
general rule is there is no duty to act. |
|
|
EX-Special relationship |
Gibbons v Proctor, parent child and partner, dint feed, culpable omission R v Downes- religious belief, chill was ill, they used prayers instead of calling ambulance |
|
|
Assumption of responsibility |
D- failure to act, if they volunteered responsibility R v Stone-agreed to take care of niece, anorexia, found in appealing conditions and was dead, held they ha assumption of responsibility for her welfare. failed to look after her. |
|
|
Contractual duty, |
R v Pitwood- gate crossing railway, he didnt put the barriers down and someone got killed hit by train. held, may concur criminal liability from duty arising from contract. |
|
|
Statutory duty, |
Failure to do something twhic the statute rewind you to do- duty under statute, where p included om,missions to act within offence definition. R v lowe= daughter became ill, dad didn't call the ambulance she died |
|
|
d creates dangerous situation |
R v Miller- D was drinking, and fell asleep on the mattress, let cigarette there, same it smouldering the sofa, got up and slept in another room. failed duty to call the fire dept, held liable for omission for that. R v Evans- heroin, girl, died, no protection as she created the situation herself. |
|
|
Positive v omissions,
|
Fagan v MPC- car foot police officer, held that the acts reus continued until the car was off the foot, therefore he developed the mens rea after Re A- operation to separate twins. and enable one to survive, and not operate means both die, positive act due to doctrine of necessity, to carry out operation. |
|
|
Causation |
definition of AR, requires certain consequence to happen- prosecution must prove that ut was D conduct by act or omission that caused those thins to happen, AR=conduct+consequence. the reason why D must have causation is due to individual autonomy principles so person capable of choosing their own acts and omissions. |
|
|
Factual Causation |
Did D contribution factually cause the result, but for his conduct, d action must be the but for cause of the result, R v White- cyanide, in mothers drink, she died of natural causes, D not liable for murder as poisoning didnt cause the death. |
|
|
Legal Causation |
R v Armstrong- victim given heroin, he died, alcohol intake was high and was materially to the death, but but for causation was not sufficient. Legal standards developed by judges, for jury to apply to se if guilty of causation, R v Smith- if at time death original wound still operating and substantive cause, death is the result of the wound, or the diminims range (r v Cato) or contribute Significantly (R v Pagget) |
|
|
NAI
|
Breaks the chain of causation. removes D from responsibility. NAI is an intervening act or event that takes over as the new operative cause . 1) acts from third parties- R v Pagget- used pregnant girlfriend as a shield, she was killed by officers firing back, manslaughter was held for him as he caused them to fire back in self defence. Rafferty- dragged man into sea, voluntary intervention of 3rd party breaks chain of causation. 2) medial intervention- R v Cheshire- shot man in the thigh and stomach, wounds healed but he died of the hospital treatment from the tracheotomy, held the intervention was only to exclude responsibility of D however act was so potent in cousing death, jury regarded the act as significant. R v Jordan- given antibiotics, after being stabbed had a reaction to them died after, D not liable for death. |
|
|
Thin Skull rule |
Take the victim as you find them R v Hayward- thyroid condition she was in fear from threats ran out of the house and died, held he was liable as his unlawful act of assault cased her death. R v Blaue-D stabbed girl 4 times for refusal to have sex, she refused blood transfusion, held he was liable for manslaughter as wounds were operative cause of death. R v Holland- fight, deep cut on his finger, caused the victim to have to get arm chopped off, held D was liable for death despite victims own actions causing the death. R v Dear- victim repeatedly stabbed- was recovering but reopened wounds, D was still liable as was operating and substantive cause of death. |
|
|
Fight or Flight- |
R v Roberts- he picked her up and drove her wrong direction and made sexual advancements at her, held he was liable for her jumping out the car, held under s47 he was reckless- it does not matter if D can foresee it, only where victims actions are so daft will he not be liable NAI R v Williams and davis- same style as above no threat though held he was not liable. |
|
|
Drug administration
|
R v Kennedy-asked for heroin, intoxicated. dec self injected snd died. 2 manslaughter appeals dismissed. his manslaughter charges at the court of appeal were quashed. the dec had the choice, free full and informed decision. R v Dias - self administration which b broke chain of causation. R v Finalay- chain of causation not broken in this instance however this was the wong decision. \ Double effect- doing something good without intent of the bad that is probable to occur . |
|
|
Mens rea 4 levels |
concerned with the state of mind, 4 levels of culpability- intention, knowledge, recklessness, and negligence |
|
|
Direct Intention- |
Direct intention = corresponds with the everyday meaning of intention. Person who has causing death as his aim, purpose or goal has direct intention to kill. state of mind of D- subjective site of mind based on evidence. Did C foresee degree of probability of result from his action.s. and objective would the reasonable person foresee the degree of probability for the action of D. Direct intention= direct intent occurs where he embarks on the action for a specific aim of his. |
|
|
Oblique intention |
Obliqueintention = exists where D carries out conduct tobring about desired result, knowing that consequence of his actions will alsobring about another result. |
|
|
Cases for OI |
R v hyam- poured petrol and set light to the house of a sexual lover her man was cheating on her for. she killed 2 daughters, held murderR v Maloney- D shot his stepfather and killed him when challenging him to a shotgun battle after drinking a lot. R v Hancock and shank land- two people there concrete off abridge and killed taxi drive . held they were liable for manslaughter despite intention not being there the act would have been seen by the reasonable man as dangerous . 1) was it a cause of the act 2) did D see it as a case of their act, if yes then conviction allowed. R v Nedrick- poured petrol one. cheating husband. R v Woolin- 3 month baby thrown on the floor. Held: manslaughter not murder as opening that to murder would be unsafe and make the scope of murder to wide. |
|
|
Recklessness |
Taking an unjustified risk |
|
|
Subjective recklessness |
R v Cunningham = appellantripped gas meter from wall to steal money and gas escaped to neighbouringproperty and mother in law poisoned by gas – charged under s23 of OAPA. Held: malicious requires 1) actualintention to do particular kind of harm that was done and 2) recklessness as towhether harm should occur or not (foreseen particular kind of harm butcontinues and takes the risk) |
|
|
Objective |
R v Caldwell = appellants after consuming large quantity of alcohol started a firein hotel, fire discovered and put out but convicted of aggravated criminaldamage. Held: person is reckless asto whether property destroyed or not if he does an act which creates obviousrisk that property be destroyed or damaged and where he does an act he hasn’tgiven thought to possibility of there being such risk or has recognised therisk, but is indifferent to it. |
|
|
Problems with subjective |
Problems with subjective test = based entirely on D state of mind, allows too many D to escape liability – Caldwell recklessness capable of causing injustice = criminalises those who did not foresee risk of harm and test is over inclusive and difficult for juries to understand. |
|
|
3 elements to objective test |
1) a obvious risk 2) and d recognises risk and carries on regard less, (subjective) 2)fails to give any thought to possibility of obvious risk (objective test + inadvertent recklessness) |
|
|
Objective recklessness (caldwell) |
Elliot v C = D was 14year of of low intelligence who started a fire – she poured white spirit on the floor & set it alight – held = if risk is one which is obvious to reasonable person; once proved D gave no thought to possibility of risk; no defence coz limited intelligence or exhaustion meant she didn’t appreciate risk R v Bell = person guilty is fails to observe risks that normal reasonable people would realise R v G & R = 2 appellants went camping – boys found newspapers & lit them with lighter & threw them under wheelie bin – fire spread to Co-op & caused over £1 million damage – held = D convictions quashed (overruled Caldwell) – test for criminal damage = person acts recklessly within s1 of Criminal Damage Act 1971 if (a) circumstance where he’s aware of risk that exists, (b) he is aware of risk that it will occur & it is, in circumstances known to him, unreasonable to take the risk – knowing disregard of appreciated & unacceptable risk of causing injurious results or deliberate closing of mind to such risks = culpable state of mind |
|
|
Problems with the subjective test |
Problems with subjective test = based entirely on D state of mind, allows too many D to escapeliability – Caldwell recklessness capable of causing injustice = criminalisesthose who did not foresee risk of harm and test is over inclusive and difficultfor juries to understand.3 elements to objective test à obvious risk and d recognises risk and carries on regardless, failsto give any thought to possibility of obvious risk |
|
|
Coincidence of AR AND MR |
Must occur side by side, Fagan v MPC |
|
|
Transferred malice
|
R v Latimer = D got infight in pub with man – took off his belt and hit man and it rebounded off andhit woman. Held: D liable forinjuries suffered by woman despite no intention to harm her – MR to cause harmwas transferred to the woman. ** If person has malicious intent towardsone person and in carrying out this intent injures another; guilty for injuriesthat person suffers |
