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35 Cards in this Set
- Front
- Back
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Actus Reus |
-AR means the unlawful act- the physical act - It must be a voluntary act i.e it must be an act of will in which the mind is in control of the body and not a situation like a fit or a reflex as in -Hill v Baxter (1958) where the example was used of a drive attacked by a swarm of bees |
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Omission |
-The general rule is that the AR must involve an act that you cannot be guilty of criminal offence by a failure to act -There are, however circumstances in which an omission can form the AR -Pittwood (1902). Contractual duty. A railway crossing gatekeeper failed to shut the gate and a person was killed by a train |
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2) People like police officers have a duty to act because of their official position. -Dytham (1979) a policeman did nothing when someone was being attacked 3) A duty to care for someone voluntarily will also create a duty to act. -Stone and Dobinson (1977), where a couple did nothing to help an anorexic sister whom they had invited to lice with them and who was neglecting herself and eventually died |
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Causation |
In 'result crimes' a casual link must be proved between the defendant's actions and the consequence |
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Factual Causation |
-This is where something is a cause of some kind so that 'but for' the thing happening the consequence would not have occurred -It must be more than a tiny or trivial cause. -In White (1910) where the defendant tried to poison his mother, he was not even a factual cause because his mother died of a heart attack before the poison could take effect |
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Legal Causation |
-Legal causation refers to whether the defendant's act was the operative andsubstantial cause of the resulting harm (Smith). -Has to be more than (Di Minimis) and more than a slight or trifiling link as in (Kimsey) - The link of causation can be broken in threeways.; -the victim's own act - escapes must be reasonable in proportion to the threatas in (Roberts); -the act of a third party can break the chain as seen in (Jordan) -anact of God such as a tornado or tsunami |
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Thin Skull Rule |
-The TSR means that you must take your victim as you find him and are therefore liable for all the consequences -The rule covers physical and mental conditions and even the victims beliefs and values as in Blaue (1975) where the victime refused to have a blood transfusion because of her religious beliefs and died as a consequence |
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Mens Rea |
-This is the mental element in the crime - state of mind - which is necessary for the crime in question. There are a number of different states of mind than can amount to mens rea |
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Intent |
-Intention is where act deliberately or you make something your aim and purpose. -Mohan (1975) It was defined as a decision to bring about a consequence |
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Oblique Intent |
-The Nedrick rule (confirmed in Woolin) applies in these cases. If the defendant knew that death or serious injury was virtually certain as a result of his actions yet went ahead. the jury can conclude that the result was intended -In woolin (1998) the defendant lost his temper and thew a baby towards his pram. The baby hit the wall and suffered head injuries which he died from |
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Recklessness |
-Recklessness is where someone knows there is a risk and continues to act - Cunningham (1957) which is that the defendant appreciated that their actions created an unjustified risk and went ahead with the action anyway |
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Transferred Malice |
-TM is where a person injures someone other than than their intended V -The rule is that the malice (intention) is transferred from the intended to the actual V as long as the crime is the same as the one person would have been charged with in respect of the intended V. -An example is Latimer (1886) where a man aimed to hit another man with a belt but hit a woman by mistake, malice was transferred -Malice cannot be transferred between different crimes. -Pembilton (1874) is which the D threw a stone at the intended victim but smashed a window instead. The crime was different so TM did not apply |
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Coincidence of MR and AR |
-The coincidence rule means the actus reus and the mens rea must occur at the sametime to ensure criminal liability. -An extension to the rule is the continuing actwhere, if the mens rea exists after the initial act, they are liable if the act iscontinuous. -For example, in the case of Fagan, the defendant accidentally ran overthe foot, but was held liable as the act was continued after realisation |
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Example |
-Another extension is the series of acts where a series of linked acts can ensurecoincidence and liability. -In the case of Thabo Meli, the courts held that thecoincidence occurred as the beating and the throwing off the cliff were linked acts. -Also in the case of Church the courts held that the coincidence was present due tothe linked acts of beating up and throwing in the river. |
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Strict Liability |
-SL offences are ones that do not require MR, guilt is determined purely on the basis of AR -Almost all SL offences are statutory, i.e they are defined in acts of Parl. They are also regulatory in nature. These types of offences are designed to protect the public and are not though as being truly criminal in nature |
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Examples |
-Many strict liability offences concerned traffic or health and safety -Callow v Tillstone (1900) a butcher was convicted of selling contaminated meat even though he asked a vet to examine the meat and he was assured by the vet it was fit for human consumption -Harrow LBC v Shah (1999) a shop owner was prosecuted for selling lottery tickets to a person u16 even though he took reasonable precautions to prevent this |
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-There is a presumption of MR if the offence is 'truly criminal' i.e where the crime is one that will carry the stigma of being kind of offence people would of as criminal opposed to a technical offence and where the penalty could involve imprisonment -Sweet v Parsley (1970) the D conviction was for being concerned in the management of premises that were being used for smoking of cannabis -Court decided that real social stigma attached to this offence and therefor MR was needed |
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Advantages |
-SL offences protect society by promoting greater care over matters of public safety -They are easier to enforce as there is no need to prove mens rea -They save court time as people are more likely to please guilty |
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Assault s39 CJA 1988 |
-The AR is any act which makes the V apprehend the immediate infliction of unlawful force -Smith v Woking Police (1983) it was looking at a woman in her nightclothes through a window -Logdon (1976) a man showed his victim a gun in a drawer. The V did not realise that this was a replica and became terrified - Words alone can be enough and even a silent phone call, as in Ireland (1998) -In Constanza (1997) letters sent by a stalker were interpreted as clear threats and there was 'fear of violence at sometime not excluding the immediate future' |
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-Words can also annul assault- this means that words can make it clear that violence is not going to be used -In Tuberville v Savage (1669) the words 'if it were not assize time I would run you through with my sword' annulled the assault -The MR is an intention to cause the victim to apprehend immediate, unlawful or recklessness as to whether such apprehension is caused. This confirmed in Savage (1991) |
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Battery |
-The AR is the application of unlawful force -There is no need to prove harm or pain -A mere touch can be sufficient, for example tickling, kissing or throwing water over someone -In Collins v Willcock (1984) it was held that 'any touching of another person , however slight, may amount to a battery'
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-In practice it would need to go beyond the ordinary physical contact that is part of ordinary life such as squeezing a hand so tightly that it hurts or repeatedly slapping someone on the back. -It is clear from Wilson v Pringle (1987) that the touching has to be hostile to amount to a battery. In that case a schoolboy in fun seized a bag being carried over the shoulder by another pupil. -Scratches and minor bruising are likely to be treated as battery, although there is no need for injury to be proved |
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2 |
-It can be indirect as in Fagan (car on to popos foot -Thomas (1985) touching someones clothes -In DPP v K (1990) it was batter when acid was put in a hot air hand drier and injured someone -In Haystead (2000) it was battery to a baby when a man punched a woman and she dropped the baby -The MR is intention or recklessness as to whether unlawful force will be applied.-This was confirmed in Venna (1976) where the court said the D must intentionally or recklessly apply force to another |
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s.47 ABH
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-defined in the act as 'any assault occasioning in ABH'
-The AR is either assault or battery plus ABH -In Miller (1954) ABH includes 'any hurt or injury calculated to interfere with health or comfort'. -It has to be more than 'transient or trifling'. -Harm is not limited to injury to the skin, flesh and bones. -In smith v DPP (2006) it was held that cutting of a girls ponytail amounted to ABH -ABH can include psychiatric injury, but in Chan Fook (1994) it was said that Psychiatric injury 'does not include mere emotions such as fear or distress or panic' there must be some identifiable clinical condition' -For MR, only the MR for assault or battery is needed. For example in Roberts a man gave a girl a lift in his car and made sexual advances, touching her clothes. She feared rape and jumped from the car and was injured. He argued that he saw no risk of injury, but court said it was sufficient that he had mens rea for battery |
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S.20 Wounding or Inflicting GBH
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-This is defined as 'unlawfully and maliciously wounding and/or inflicting any GBH upon any other person either with or w/o a weapon
-The AR is either inflicting GBH or wounding -GBH means serious harm as in Saunders (1985) and inc things like broken limbs, dislocations, permanent disability or scarring and substantial loss of blood -In Bollom (2003) where severe bruising was caused to a young child, the court held that the victims age and state of health were relevant in deciding whether an injury amounted to GBH -It can include psychiatric injury as long as it is 'serious' -Inflict does not require direct contact as confirmed in Burstow (1998) and there in practice means the same as 'cause' in S.18 of the Act. In Martin (1881) a man was found guilty of s.20 when he shouted 'fire' in a crowded cinema and caused injury to people who were trampled in the panic to escape -Wounding means breaking the skin, not internal bleeding, as in Eisenhower (1984), Any cut therefore be treated as wounding -In Dica (2004) a man was convicted of 'biological gbh' when he recklessly infected a women with HIV when he had unprotected sex with her -MR is intention or recklessness as to whether some harm caused. In Mowatt (1968) it was confirmed that the D merely has to foresee some physical harm, albeit of a minor character |
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S.18 Wounding or causing GBH with intent
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-The AR of this offence is wounding or causing GBH, because judges have decided that cause s.18 and inflict (s.20) amount to the same thing, the AR of the two offence is identical. This difference between the MR
-The MR of S.18 is either intention to cause GBH or intention to resist arrest. Intention to act deliberately, to make something your aim and purpose (Mohan). Intention can be direct or oblique which is where the D claims to have some other purpose, but the jury are satisfied the the D knew serious injury was virutally certain. |
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Summary Offence |
-Summary offences would be heard at the Magistrates' Court. -D's first courtappearance D could apply for bail and legal aid if needed. -D would plead guiltyor not guilty. -If D pleads guilty there is no trial but he or his solicitor can make aplea in mitigation. -This may follow an adjournment to get reports about him. -If D pleads not guilty there will be a trial at the Magistrates at a later date. |
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Either Way |
- If the D pleads guilty then he has no right to ask to go to the Crown Court although the Magistrates may still send him there for sentence. -If the D pleads not guilty, then the magistrates must carry out ‘mode of trial’ proceedings. Under s19 Magistrates’ Court Act 1980 they must consider the nature and seriousness of the case, their own powers of punishment and any representations of the prosecution and defence |
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-The D is told he has the right to choose trial by jury if the Magistrates are prepared to accept jurisdiction of the case.· Committal proceedings These are only used in either way cases and happen in the Magistrates’ court. They ensure that there is sufficient evidence (which is handed to the court in a written form) for a trial to take place |
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Aims of sentencing |
-When an offender is convicted following a trial or guilty plea, the court has a range of sentencing options available. -The sentencing depends on the type, the seriousness, the circumstances of the crime and the maximum penalty available by law. -The aims of sentencing are:· -Retribution—the desire for revenge· -Deterrence—putting people off committing crimes· -Rehabilitation—the offender will be ‘cured’ of his criminal tendency· -Prevention/protecting the public—putting offenders in prison so that they cannot re-offend whilst in prison |
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Types of sentences |
-Custodial sentences; Imprisonment, either immediate or suspended -Community sentences; CJA 2003 allows CS -Community orders; Community punishment orders, Community rehab orders, Curfew requirements -Financial sentences; inc fines, compensation -Discharge; absolute or conditional |
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Aggravating factors |
Facts that will increase the sentence ~1. Use of a chemical/dangerous substance 2. Any form of discrimination 3. Repeated attack/to vulnerable part of body 4. Attacking on vulnerable people 5. Use of a weapon 6. Gang-related |
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Mitigating factors |
Facts that will decrease the sentence ~ 1. Early guilty plea 2. Provoked 3. Showing remorse 4. Helping/assisting the police 5. First-time offender |
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Indictable offences |
-For indictable offences which are the most serious type of offences, the case is transferred to crown court for a plea and directions hearing under the crime and disorder act 1998 -if guilty plea is entered the judge will pass sentences, after a possible adjournment for pre sentence report - D pleads not guilty, the case is adjourned -A jury will decide on guilt/innocence and if the d is found guilty the judge will pass sentence |
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Bail |
-Bail can be granted by the polices or the courts. -S.4 of the bail act 1976 gives a general right to bail, but the court can refuse bail if the court has reasonable grounds to believe that there is a risk that the d might: -abscond and not attend their trial -commit a further offence if granted bail -interfere with/threaten witness -Bail can be unconditional or police can attach conditions |
