Crime Law - Unit 2 Notes PDF

Crime - unit 2 Principles of criminal liability: Actus reus can be committed in 3 ways: 1.​ Act 2.​ Omission 3.​ State of affairs For actus reus to be present the act has to be voluntary (hill v baxter)...

Crime - unit 2 Principles of criminal liability: Actus reus can be committed in 3 ways: 1.​ Act 2.​ Omission 3.​ State of affairs For actus reus to be present the act has to be voluntary (hill v baxter) Omissions Can't be guilty for an omission unless: Contractual duty - (pittwood) By virtue of special relationship - (gibbons v proctor) Voluntary duty - (stone v dobinson) Official position - ( dytham) Duty arising through accused's conduct- (miller) Statutory duty - (road traffic act 1988) State of affairs D finds himself in a set of circumstances which are enough for AR to be satisfied even though he did not act voluntarily (larsonner) Eg. being in possession of… Causation factual - “ but for test” (pagett) Legal- operating and substantial OR more that minimal (smith 1959) -​ Thin skull rule (blaue) Intervening acts- 1.​ Act of third party (benge) 2.​ Palpably wrong medical treatment (jordan) 3.​ Victims own act (roberts)  Mens rea 1.​ Direct intent (mohan) 2.​ Oblique intent (woollin) -​ Foresight of consequence test 1.​ Objective test, was the consequence virtually certain as a result of D’s actions 2.​ Did D realise this? (mathews v alleyne) 3.​ recklessness (cunningham) -​ Did d take an unjustified risk -​ Did D realise the risk but take it anyway? Transferred malice (still Mens rea) D’s mens rea is transferred from the intended victim to the actual victim injured in the process. (latimer) Mens rea can only be transferred for similar type crimes (pembilton) eg - person to person or property to property; not person to property Coincidence of AR and MR (contemporaneity rule) -​ A series of linked acts or omissions can be treated as one single continuing event (fagan v mpc) -​ The continuing act can be a chain of events (thabo meli) Strict liability Crimes that do not require proof of MR as the AR is sufficient to make a person guilty of an offence. Gammon test- 1. Truly criminal 2. Statute must clearly exclude MR (sweet v parsley) 3. For public safety or social concern (london borough of harrow v shall) 4.​ Encourage greater vigilante (alphacell v woodward) pros - protects public, easy to prove, saves court time and cost Cons- put blame on people who are not blame worthy, people who are unaware of risks may be guilty, no evidence it improves standard  Sentencing 1. Custodial- s221-232 sentencing act 2020 1.​ Mandatory life - minimum 12 years then can be released on license ( max life) 2.​ Discretionary life- up to judges discretion (can be up to life) 3.​ Fixed term sentence- fixed amount of time can be released after half under surveillance) 4.​ Suspended sentence- don't go to prison as long as they do not commit any further offences 2. Community sentence- s201 sentencing act 2020 curfew , residence requirement, unpaid work, community service 3. fines - s118- 121 sentencing act 2020 magistrates - up to 5000 pounds Crown court- unlimited 4. discharge - (only given for minor offences) Conditional- released o condition no further offence is committed Absolute- no penalty is imposed Aims of sentencing Retribution, deterrence, rehabilitation, protection of public, reparation, denunciation Sentencing factors +​ Criminal record, weapon, planning, hate crime, on bail, abuse of position of trust, vulnerable victim, domestic violence -​ Remorse, plead guilty, mental health problems, no previous convictions, during day time, addiction to drugs/ alcohol, spur of the moment Offences against the person Assault Common law defence defined as an act where D intentionally or recklessly cause v to apprehend the immediate infliction of unlawful force (venna) AR1- apprehend (ireland) ds words or actions must cause v fear AR2- immediate (smith v chief superintendent of woking police station) needs to be imminent not some time in the future AR3- unlawful- v did not consent, d did not do out of self defence Need to prove causation- factual, legal, no intervening acts MR- intention or recklessness (cunningham) to cause v to apprehend the immediate infliction of unlawful force (savage) Max sentence- up to 6 months imprisonment or 5k fine S.39 criminal justice act 1988 Battery Common law offence defined as the application of unlawful force on another (ireland) AR1- unlawful force, v did not consent, d didn't do out of self defence AR2- direct force (thomas) person to person or indirect force (fagan v mpc) applied through vehicle or instrument AR3- act or omission (santa-bermudez) Need to prove causation- factual, legal, no intervening acts MR- intention or recklessness (cunningham) to apply unlawful force to another (venna) Max sentence- up to 6 months imprisonment or 5k fine S.39 criminal justice act 1988  Actual bodily harm (ABH) Statutory offence defined by s.47 OAPA 1861 which states its an offence to commit an assault occasioning in actual bodily harm (ABH) AR1- battery or assault caused ABH AR2- “occasioning” applies rules of causation: factual. Legal, no intervening acts AR3- Actual bodily harm- any hurt or injury calculated to interfere with the health or comfort of the victim (miller) it can be to any par3t of the body (chan-fook) including hair (smith 2006) MR- same MR as battery or assault depending on which one caused the ABH (roberts) Max sentence- 5 years imprisonment Grievous bodily harm (GBH) Statutory offence defined by s.20 OAPA 1861 which states its an offence to inflict unlawful GBH or wounding. AR1- unlawful AR2- “wounding”: a break in the continuity of the skin (eisenhower) internal bleeding does not suffice as a wound. AR3- “GBH” no more and no less than really serious injury (dpp v smith) -​ When deciding if injury is grievous need to take into account the effect of the injuries on the victim eg: take into account age of v (bollom) Need to prove causation- factual, legal, no intervening acts MR- intention or recklessness (cunningham) to cause some harm Max sentence- 5 years imprisonment  Grievous bodily harm (GBH) with intent Statutory offence defined by s.18 OAPA 1861 which states its an offence to cause unlawful GBH or wounding with intent AR1- unlawful AR2- “wounding”: a break in the continuity of the skin (eisenhower) internal bleeding does not suffice as a wound. AR3- “GBH” no more and no less than really serious injury (dpp v smith) -​ When deciding if injury is grievous need to take into account the effect of the injuries on the victim eg: take into account age of v (bollom) Need to prove causation- factual, legal, no intervening acts MR- specific intent required for the specific injury (belfon) Max sentence- discretionary life fatal offences- Murder Common law offence defined as the unlawful killing of a reasonable person in being and under the kings peace with malice aforethought, express or implied. AR1: unlawful killing (re a) AR2: reasonable person in being (malcherek) AR3: under the kings peace AR4: act or omission (pitwood, dytham, stone v division ect) Need to prove causation- factual, legal, no intervening acts MR- Express- main intention was to kill or implied- intention was not to kill but to cause serious harm (vickers) Foresight of consequence test- objective test : was death virtually certain as a result of ds actions. subjective : was d aware of this ( woollin) Max sentence- mandatory life sentence Voluntary manslaughter (lOC and DR) Only relevant if charged with murder, voluntary manslaughter (vm) applies when d is guilty of murder but able to apply one of the two partial defences ( loss of control and diminished responsibility). Brings it from mandatory life sentence to discretionary. LOC: s.54 coroners justice act 2009 Test: 1.​ Loss of self control s.54(2) (ibrams and gregory) 2.​ Qualifying trigger -s.54/55 fear (sian) or anger (zebedee) 3.​ Objective test- would someone of same age,sex and normal degree of tolerance act in the same way (camplin) outcome - mandatory to discretionary life sentence Diminished responsibility: S.52 coroners and justice act 2009 Test: 1.​ Abnormality of mental function: (byrne) 2.​ Recognized medical condition (english) 3.​ Substantial impairment: (lloyd) 4.​ Provides an explanation- impairment must be significant contributory factor in causing d to kill DR and intoxication: Alcohol and drugs intoxication cannot be a used as a defence (fenton) Neither can voluntary intoxication unless (wood) 1. Alcohol abuse causes brain damage 2. If drinking is involuntary due to addiction or dependency (gittens)- intoxication and abnormality of mental function: ignore intoxication element Outcome- mandatory down to discretionary life sentence Gross negligent manslaughter Common law offence (adamako 1994) AR1- needs to be a death: provide ar of murder (Re A) AR2- Duty of care (caparo v dickman) caparo test -​ Risk of death (singh) -​ Includes any daily activity if done negligently can lead to death ( misra) AR3- breach of duty of care -​ Decided by jury, standard of care (andrew v dpp) AR4: causation MR- if ds actions were enough to warrant criminal liability (ag ref(no2 of 1999) Outcome- discretionary life  Constructive manslaughter Common law offence (khan v khan) AR1: needs to be a murder or death- prove ar of murder (Re A) AR2: unlawful act AR3: dangerous act (church) - objective test: is there a risk of harm? AR4: causation Mr- d has to have MR of the unlawful act which causes the death Outcome: discretionary life Unit 2- Defences Self defence Strict defense- full acquittal or nothing Can be used for any crimes The defendant can raise the issue of self defense Once they do, the burden of proof is on the prosecution to prove D wasn't acting in self defense. When to use? -​ Defense of self (common law and criminal justice and immigration act 2008) -​ Defense of another (common law and criminal justice immigration act 2008) -​ Protection of property (s5 criminal damage act 1971) Prevention of a crime. (s3 criminal law act 1967) Test for self defense : 1. Need to use reasonable force (objective - jury) (palmer) 2. Reasonable in the circumstances (buckley v dpp) 3. Should the defendant have retreated? (bird) - does not fail the test but weakens it 4. Did the defendant honestly believe that action was justified (subjective - d) (gladstone williams) Outcome : full defense (palmer) Intoxication Voluntary Involuntary Basic No, convicted Yes, acquitted MR: intention or reckless Specific Yes, reduced to basic intent Yes, acquitted MR: intention only Extra stuff : If it's a 10 marker, define both voluntary and involuntary, define specific and basic and why Does the defense exist? Dutch courage - mr already satisfied before they became intoxicated (gallagher)  Insanity: Can be used for all crimes with MR. Internal cause must cause loss of control and or consciousness m'naghten test: 1.​ Defect of reasoning ( clarke) 2.​ Caused by disease of the mind- mental of physical (kemp) (bratty) 3.​ D does not know -​ The nature of the quality of his act D must prove one: -​ He did not know what he was doing -​ He did not appreciate the consequences of his act. -​ D did not appreciate the circumstances in which he was acting. -​ Or that the act he was doing was wrong- legally wrong not morally (windle) Outcome- if defence is successful d wil be found not guilty by reason of insanity disposals - Criminal procedure ( insanity and unfitness to plead) act 1991 amended by s.5 criminal procedure (insanity) act 1994 Hospital order - no time limit Hospital order - time limit Guardianship order Supervision and treatment order Absolute discharge  Automatism Common law offence - something happens externally (outside of body) which causes loss of control or loss of consciousness. Test: 1.​ Must be involuntary- mind is not controlling limbs in a purpose full manor (bratty) eg. spasms or reflex action, sleep walking or concussion 2.​ Due to an external cause- Blow to the head, sneezing, hypnitism, single episode of sleepwalking (hill v bater) Self induced automatism (bailey) if external factor is self induced defence will not work However it can be for specific intent crimes (murder, ghb, robbery) If drink or drugs cause external factor, defence can not be used. Unless d does not know it will lead to automatism ( hardie 1984) - so defence can be used Extra: hypo glycaemia- external so automatism Hyper glycaemia- internal so insanity  Duress by threats Graham test: 1.​ Was d implied to act how he did because he feared death or serious physical injury - -​ Psychological harm will not suffice (baker and wilkins) -​ Any other threat eg exposing will be disregarded but can be a mitigating factor ( valderrama-vega -​ There must be a connection between threat made and the offense committed in response (cole) 2.​ If so, did he respond as a sober person of reasonable firmness sharing the characteristics of d (bowen) -​ Same: age, sex , physical disability, pregnancy, mental illness or psychiatric condition Immediacy of threat and possible escape- (gill)- duress can only be used if there is no safe means of escape (abdul-hussain)- threat must be operating on ds mind at the time of the offence committed Self induced duress- (gangs) defence is not likely to work as it is foreseeable d might be subjected to any compulsion by threats of violence: -​ (sharp)- d pt himself in situation where he is likely to be subjected to threats to make him commit a crime eg. join a gang -​ (Hasan)- d is not in a gang but associates with them. Outcome- full acquittal Duress by circumstances Believes he or those with him suffer death or serious physical injury if he did not escape or do what he did (pomell) Test: (martin) 1.nature of threat (rodger and rose) 2.same characteristics of d (bowen) and acted in a reasonable and proportionate way (conway) Outcome: complete acquittal unit 2- property offences Theft S.1 theft act 1968 - statutory offense described as dishonest appropriation of property belonging to another with the intention of permanently depriving the other of it.’ AR: appropriation - s.3 Lord roskill : any assumptions of the rights of the owner (morris) -​ Consent ( lawrence) - d goes beyond consent = theft -​ gift ( hinks) - can be theft depending on how gift is obtained (taking advantage of elderly ect) AR: : property s.4 -​ Money - physical cash of any currency -​ Real - land and buildings -​ Personal - any moveable item - (kelly and lindsay) -​ Things in action - credit cards, debit cards, cheques. -​ Data, quotas - (oxford v moss) AR: : belonging to another S5 - possession and control and/or prosperity rights and interest. -​ Possession or control - (turner) (no2)(1971) - guy stole his own car back from garage -​ Proprietary rights and interests (webster) -​ Property received under obligation s5.(3) - (davidge v bunnett) - d was given money to pay gas but brought something else -​ Property received by mistake s.5(4) - AG ref (no1 of 1983) (1985) -​ Abandoned property -(williams v philips) - property must be truly abandoned, if it can be linked back to someone you will be convicted of theft, MR : dishnonesty S.2 (Barton and booth 2021)/ (ivey2017) 1. What was D’s knowledge or belief as to the facts (0bjective) 2. Was D’s conduct dishonest by standards of ordinary decent people? (objective) Circumstances when not considered dishonest : (a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or (b) if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or (c) if he appropriates the property in the belief that the person to whom the property cannot be discovered by taking reasonable steps. These three exceptions are judged entirely subjectively. There is no requirement that the defendant's belief is reasonably held Intention to permanently deprive: s.6(1) - a person is treated as having the necessary intention if they treat the property as their own regardless of the owners rights (lavender) Maximum sentence : 7 years Robbery Robbery Statutory offense S.8 of the theft act 1968 - theft using force of threat of force. AR1: ar of theft: appropriation (s.3), property (s.4), belonging to another (s.5) And the Theft must be complete (zerei) AR2. Force of threat of force (AR) -​ Force must be used to steal -​ Threat must be on any person -​ The amount of force can be small (clouden) -​ V does not have to feel frightened (B and R v DPP 2017) -​ Force must be used immediately before or at the time of theft (hale) before (lockley) during MR1: same mr as theft, dishonesty and intention to permanently deprive. MR2: intention to use force to steal Maximum sentence : discretionary life sentence  Attempts Attempt is an offense where D does not complete the final offense. However, because of a combination of their actions and the mens rea, they are liable for a lesser offense. S.1 (1) - criminal attempts act 1981 - ‘ if with intent a person does an act which is more than merely preparatory to the commission of the offense, he is guilty of attempting to commit the offense. (white) AR1: more than merely preparatory - the act has to be more than merely preparatory for the main crime (ag ref (no.1 of 1992) 1993) Geddes: 1. Had the accused moved from planning to execution? 2. Had the accused done an act showing that he was actually trying to commit the full offense, or had he only gone as far as getting ready? (campbell) Going more than merely preparatory- (Boyle and boyle) - ds were found next to the door in which the lock and hinge had already been broken. MR : intention to commit the full offense (husseyn) Mr for attempted murder - express intention to kill (whybrow) -​ is recklessness enough to satisfy the mr- NO!! (millard and vernon) Attempting the impossible: s.1(2) criminal attempts act 1981 - d can still be found guilty of attempt where its impossible for them to carry out that crime (shivpuri) Maximum sentence : discretionary life sentence