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Criminal law flashcards

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The rules of criminal law

What is the burden and standard of proof in criminal law?: The burden is on the prosecution, and it must prove the case beyond reasonable doubt: the “golden thread” (Woolmington v DPP, 1935).
What are the sources of criminal law?: Statute (e.g. the Offences Against the Person Act 1861 and the Theft Act 1968) and the common law (murder and the common law defences are largely judge-made).
How do you apply the criminal law to a problem scenario?: Identify the offence; state and apply its actus reus and mens rea with authority; consider any defence; reach a conclusion on liability.

Theory in criminal law

What is the harm principle?: From J. S. Mill: the only purpose for which power can rightfully be used over a member of a civilised community, against their will, is to prevent harm to others.
What is the distinction between fault and harm in criminal law?: Harm is the injury or loss caused. Fault is the blameworthiness of the defendant’s state of mind. The law grades offences by both: e.g. murder and manslaughter cause the same harm but differ in fault.
Why is strict liability controversial?: It allows conviction without proof of fault for at least one element, which can seem unjust; it is justified by public protection and the ease of enforcing regulatory offences.
How does the criminal law balance the rights of victims and defendants?: Victims and society need protection and justice; defendants need a fair trial, the presumption of innocence and proof beyond reasonable doubt. Defences such as self-defence show the balance in action.

General elements of liability

What is the coincidence (contemporaneity) rule?: The actus reus and the mens rea must be present at the same time. A continuing act (Fagan v Metropolitan Police Commissioner, 1969) or a single series of acts (Thabo Meli v R, 1954) can satisfy this.
What is intention in criminal law?: Aim or purpose; a jury may, but need not, also find intention where the defendant foresaw a consequence as virtually certain.
What is subjective recklessness?: The defendant personally foresaw a risk and unreasonably took it anyway.
What is negligence as a level of fault?: Judged against an objective reasonable-person standard, not the defendant’s own state of mind.
What is strict liability?: An offence where no mens rea is needed for at least one element of the actus reus.
What is transferred malice?: Mens rea aimed at one victim transfers to the actual victim, if the harm is of the same type (R v Latimer, 1886). It does not transfer between different types of harm (R v Pembliton, 1874).
When does a duty to act arise, so an omission can be the actus reus?: From contract (R v Pittwood, 1902), a special relationship (R v Gibbins and Proctor, 1918), voluntarily taking on care (R v Stone and Dobinson, 1977), creating a dangerous situation (R v Miller, 1983), or statute.
What are factual and legal causation?: Factual: “but for” the defendant’s conduct, the result would not have happened (R v White, 1910). Legal: the conduct was an operating and substantial cause, with no break in the chain of causation (R v Smith, 1959; R v Cheshire, 1991).

Fatal offences against the person

What is the actus reus and mens rea of murder?: Actus reus: the unlawful killing of a human being under the King’s peace. Mens rea: malice aforethought, meaning an intention to kill or an intention to cause grievous bodily harm (R v Vickers, 1957).
What is the loss of control defence?: A partial defence to murder under ss54–55 Coroners and Justice Act 2009: the killing resulted from a loss of self-control with a qualifying trigger (fear of serious violence, or things said or done of an extremely grave character), and a person of D’s sex and age with normal tolerance might have acted in the same way.
What is diminished responsibility?: A partial defence to murder under s2 Homicide Act 1957, as amended by s52 Coroners and Justice Act 2009: an abnormality of mental functioning from a recognised medical condition that substantially impaired D’s ability to understand, form a rational judgment or exercise self-control, and explains the killing.
What is unlawful act manslaughter?: Killing by an unlawful (criminal) act that is dangerous, in that a sober and reasonable person would see the risk of some harm (R v Church, 1966), and which causes the death. D need not foresee harm (DPP v Newbury and Jones, 1977).
What is gross negligence manslaughter?: R v Adomako (1995): D owed the victim a duty of care, breached it causing death, and the breach was so bad that the jury considers it criminal (gross negligence).
What is the effect of a successful partial defence to murder?: The conviction is reduced from murder to voluntary manslaughter, so the judge has discretion in sentencing instead of the mandatory life sentence.

Non-fatal offences against the person

What are the actus reus of common assault and battery?: Assault: causing the victim to apprehend immediate unlawful force (silent phone calls can be enough: R v Ireland, 1998). Battery: applying unlawful force to another. Both are charged under s39 Criminal Justice Act 1988.
What is assault occasioning actual bodily harm?: s47 Offences Against the Person Act 1861: an assault or battery that causes actual bodily harm, meaning any hurt or injury calculated to interfere with health or comfort (R v Miller, 1954). The mens rea is only that for the assault or battery.
What is the offence under s20 Offences Against the Person Act 1861?: Unlawfully and maliciously wounding or inflicting grievous bodily harm. The mens rea is intention or recklessness as to causing some harm (R v Savage; DPP v Parmenter, 1992).
What is a wound, and what is grievous bodily harm?: Wound: a break in both layers of the skin (JCC v Eisenhower, 1984). Grievous bodily harm: really serious harm, which can include psychiatric injury (R v Burstow, 1998).
What is the offence under s18 Offences Against the Person Act 1861?: Wounding or causing grievous bodily harm with intent to cause GBH (or to resist arrest). It needs specific intent, not recklessness, and carries a maximum of life imprisonment.

Property offences

What is the definition of theft?: s1 Theft Act 1968: dishonestly appropriating property belonging to another with the intention of permanently depriving the other of it.
What is appropriation, and can it happen with the owner’s consent?: Any assumption of the rights of an owner (s3). It can happen with consent (R v Gomez, 1993), and even by receiving a valid gift (R v Hinks, 2000).
What is the test for dishonesty?: s2 Theft Act 1968 lists cases that are not dishonest (e.g. a belief in a legal right to the property). Otherwise: what D actually believed about the facts, then whether the conduct was dishonest by the standards of ordinary decent people (Ivey v Genting Casinos, 2017; R v Barton and Booth, 2020).
What counts as property and as belonging to another in theft?: Property (s4): money and all other property, real or personal, including things in action. Confidential information is not property (Oxford v Moss, 1979). Belonging to another (s5): anyone with possession, control or a proprietary interest, so even an owner can steal their own goods (R v Turner (No 2), 1971).
What is the intention to permanently deprive?: s6 Theft Act 1968: intending to treat the thing as one’s own to dispose of regardless of the owner’s rights. Borrowing counts only if the thing is returned with all its goodness or value gone (R v Lloyd, 1985).
What is robbery and how much force is needed?: s8 Theft Act 1968: theft with force, or putting or seeking to put someone in fear of force, immediately before or at the time of the theft and in order to steal. Little force is needed (R v Dawson and James, 1976), and the theft can be continuing (R v Hale, 1979).

Preliminary offence

What is the actus reus of an attempt?: s1(1) Criminal Attempts Act 1981: doing an act that is more than merely preparatory to the commission of the offence (R v Jones, 1990; R v Geddes, 1996, no attempt where D had not moved from preparation to execution).
What is the mens rea of an attempt?: An intention to commit the full offence. For attempted murder, only an intention to kill will do (R v Whybrow, 1951).
Can you be guilty of attempting the impossible?: Yes. s1(2) Criminal Attempts Act 1981 provides that a person may be guilty of attempt even though the facts make the offence impossible (R v Shivpuri, 1986).

Capacity defences

What are the M’Naghten Rules (1843) on insanity?: D must be labouring under a defect of reason from a disease of the mind, so that D did not know the nature and quality of the act, or did not know it was wrong.
What is the difference between insane and non-insane automatism?: Insane: caused by an internal factor, a disease of the mind, e.g. diabetes causing hyperglycaemia (R v Hennessy, 1989) or epilepsy (R v Sullivan, 1984). Non-insane: caused by an external factor, e.g. an insulin injection (R v Quick, 1973); leads to a full acquittal.
What is automatism?: An act done by the muscles without any control by the mind, caused by an external factor, e.g. being attacked by a swarm of bees (Hill v Baxter, 1958). Self-induced automatism is no defence to basic intent offences if D was reckless (R v Bailey, 1983).
When is voluntary intoxication a defence?: It can negate the mens rea of a specific intent offence (e.g. murder, s18), but not of a basic intent offence (e.g. s20, s47, assault), since getting drunk is itself reckless (DPP v Majewski, 1977).
Is Dutch courage or involuntary intoxication a defence?: Drinking to gain courage for a planned crime is no defence (A-G for Northern Ireland v Gallagher, 1963). Involuntary intoxication is no defence if D still formed the mens rea (R v Kingston, 1994).

Necessity defences

What is the law on self-defence?: Common law and s3 Criminal Law Act 1967, clarified by s76 Criminal Justice and Immigration Act 2008: was force necessary, judged on the facts as D honestly believed them, and was the force reasonable in those circumstances?
How does self-defence differ in householder cases?: Under s76(5A) Criminal Justice and Immigration Act 2008 (added in 2013), a householder defending against an intruder may use force that is disproportionate, as long as it is not grossly disproportionate.
What is the test for duress by threats?: R v Graham (1982), confirmed in R v Hasan (2005): D was compelled by a threat of death or serious injury that D reasonably believed, and a sober person of reasonable firmness sharing D’s characteristics would have acted the same way.
For which offences is duress not available?: Murder (R v Howe, 1987) and attempted murder (R v Gotts, 1992). It is also unavailable if D voluntarily joined a criminal group knowing of the risk of being threatened (R v Hasan, 2005).
What is duress of circumstances?: Where the threat of death or serious injury comes from the situation rather than a person’s demand, e.g. driving dangerously to escape a threat (R v Willer, 1986; R v Conway, 1989). The same two-stage test applies.
Is necessity a defence to murder?: Generally no (R v Dudley and Stephens, 1884). Re A (Conjoined Twins) (2000) allowed an operation that would kill one twin to save the other, on very narrow facts.