Criminal / CLP

Assault

AR - causing the victim to apprehend immediate unlawful physical force #

MR - intention or recklessness as to causing the victim to apprehend immediate unlawful physical force

Battery

AR - application of unlawful force on another

MR - intention or recklessness as to application of unlawful force on another

S47 GBH

AR - AR for assault or battery which causes actual bodily harm

MR - the MR for assault or battery

S20 GBH

AR - wound or inflict GBH

• Wound = break in skin (graze is not enough)

MR - intention or recklessness as to causing some harm

S18 GBH

AR - Wound or GBH

MR - intent to cause GBH

What is actual bodily harm

Any hurt or injury calculated to interfere with the health and comfort of the victim - psychological harm counts

S1 Theft (simple theft)

AR – appropriating property belonging to another

MR – dishonestly with an intention to permanently deprive

S8 Robbery

AR – theft with force or threats of force immediately before or at the time of stealing

MR – MR of theft (dishonestly with an intention to permanently deprive)

S9(1)(a) Burglary

AR – D must enter a building or part as a trespasser

MR – know or be reckless as to trespassing and at time of entry intend to steal

S9(1)(b) Burglary

AR – D must enter a building or part as a trespasser and attempt to steal or commit criminal damage or inflict GBH

MR – know or be reckless as to trespassing and (if stealing) MR of theft

S10 Aggravated Burglary

Aggravated Burglary If when committing a burglary they have a weapon

Simple criminal damage

AR – damage or destroy property belonging to another

MR – intention or recklessness as to damage or destroy property belonging to another

Aggravated criminal damage

AR – damage or destroy property

MR – intention or recklessness as to the damage/destruction of the property and intention or recklessness that as a result of damaging/destroying property life will be endangered

Simple arson

AR – damage or destroy property belonging to another (by fire)

MR – intention or recklessness as to damage or destroy property belonging to another (by fire)

Aggravated arson

AR – destroy or damage property (by fire)

MR - Intention or recklessness as to the destruction or damage of property (by fire); AND Intention or recklessness as to the endangerment of life by the damage or destruction (by fire)

Can you destroy or damage your own property for criminal damage?

Not for simple criminal damage but you can for aggravated criminal damage

Lawful excuse defence

Applies to simple criminal damage

2 defences

1. D honestly believes the owner/who he thought was the owner would have consented to the damage

2. D thought he was in immediate danger and believed the methods used were reasonable AND the methods used were objectively capable of protecting the property

Dishonesty meaning

1. What was the defendants knowledge and belief as to the facts?

2. Given that knowledge and those beliefs was the defendant dishonest by the standards of ordinary decent people?

Intention meaning

Aim or purpose to commit the offence

Oblique intention

Virtual certainty that as a result of D's actions the offence would occur

Must objectively be virtually certain AND D must have known it was

What is "direct intent" in criminal law?

Direct intent occurs when the consequence is what the defendant aims to happen; it is the purpose or objective of their act.

This is a wholly subjective test from the defendant's point of view.

Transferred malice

Offence can still be committed if victim was different to that intended – D must still have AR and MR Cannot transfer MR to fit a different crime

Continuing act rule

D commits AR by mistake then realises and does nothing about it

Murder

AR – unlawful killing of a human being under the kings peace

MR – intention to kill or cause GBH

Voluntary manslaughter

Applies where there is either loss of control or diminished responsibility partial defences BUT D has the AR and MR

Involuntary manslaughter

Where D has the AR but not the MR

2 types: unlawful act manslaugther and gross negligence manslaughter

Unlawful act manslaughter

1. Did D do an intentional act? Cannot be an omission

2. Was the act unlawful?

3. Was the unlawful act dangerous? Type of harm must be physical

4. Did the unlawful act cause the death of the victim? Causation rules

Gross negligence manslaughter

1. Did D have a duty of care? 'reasonably foreseeable'

2. Did D breach that duty of care? Standard of care -
   did they fall below standard

3. Was breach a substantial cause of victims death?

4. Was there a risk of death? Obvious and serious risk of death at the time of the breach

5. Was the breach of duty sufficiently serious so as to amount to gross negligence?

Fraud by false representation

AR – D must make a false representation – must be false in fact and D must know it is false

MR – dishonesty and intention to make a gain or cause a loss to another

Fraud by abuse of position

AR – D must occupy a position in which he is expected to safeguard the financial interests of another and must abuse that position

MR – dishonesty and intention make a gain or cause a loss to another

Fraud by failure to disclose

AR – failing to disclose information D is under a legal duty to disclose

MR – Dishonesty and intention to make a gain or cause a loss

Note - judge will decide if a legal duty is capable of existing (not moral)

Intoxication

Used by D to show they did not have the MR

• If D is voluntarily intoxicated there is a presumption of recklessness

• If involuntarily intoxicated there is no presumption and the prosecution needs to prove beyond reasonable doubt that D foresaw the risk

How does voluntary intoxication affect a specific intent crime?

Voluntary intoxication can be a defence to specific intent crimes if the intoxication prevents the defendant from forming the required specific intent

How does intoxication interact with the defence of self-defence?

If a defendant is intoxicated and makes a mistaken belief about the need to use self-defence

Self defence

Complete defence – BOP is on prosecution to disprove one of elements once D has raised the defence.

1. Trigger – D must honestly believe the use of force was necessary

2. Response – was the level of force used objectively reasonable in the circumstances as D believed them to be?

Loss of control

Prosecution must disprove 1 of the 3 elements beyond reasonable doubt for the defence to fail

1. Did D lose self control?

2. Due to fear and/or anger qualifying trigger?

   a. D must fear of serious violence

   b. Anger – things said or done that constitute circumstances of an extremely grave character and which caused D to have a justifiable sense of being seriously wronged

3. Would a normal reasonable person in D's circumstances and of D's age/gender have done what he did?

Diminished responsibility

Defence must prove the below on the balance of probabilities

1. Does D have an abnormality of mental functioning?

2. Does the AMF arise from a recognised medical condition?

3. Does the AMF substantially impair D's ability to understand the nature of their conduct form a rational judgment and/or exercise self control?

4. Does the AMF provide an explanation for D's conduct (must be a significant cause)

Principal offender

The main perpetrator of the offence – can be more than one

Withdrawal from an offence

An accessory can withdraw if

1. the withdrawal is sufficiently early

2. it is communicated to the other side

3. reasonable steps were taken to prevent the crime from happening

What do the terms "aid," "abet," "counsel," and "procure" mean in the context of secondary parties?

• Aiding – assisting the principal in committing the offence.

• Abetting – encouraging the principal at the time of the offence.

• Counselling – advising, persuading, or encouraging before the offence occurs.

• Procurement – causing the principal to commit the offence.

• Joint enterprise – being involved in the commission of a crime alongside the principal.

Accessory AR

Actus reus = aid, abet, counsel or procure

Accessory MR

Both

1. intention to aid, abet, counsel or procure P to commit one or a range of offences which are within D’s contemplation

2. Knowledge/contemplation of a range of possible crimes one of which P actually commits within that range – the crime must be in D's contemplation

Can a secondary party be convicted if the principal is acquitted?

Yes

What is joint enterprise in criminal law?

A situation where multiple parties engage in the same criminal conduct together and may become liable for additional crimes committed during the enterprise based on their mens rea.

Factual causation

But for test – D must have been a significant cause

Legal causation

No intervening acts that breach the chain

What is an inchoate offence?

An inchoate offence occurs when the defendant takes steps toward committing a crime

What is the mens rea for an attempt offence?

D must have had the intention to commit the full offence. Recklessness doesn’t count

Impossibility

Where someone intends to commit an offence but it is impossible because the facts are not as D believed them to be – they can still be convicted

e.g. someone thinks they are spiking a drink to kill them but actually it’s a harmless substance

Attempted aggravated criminal damage/arson – what is needed?

Intention to damage property and intention or recklessness as to endangerment of life by damage to property

Actus reus of an attempt offence?

An act which is more than merely preparatory to the commission of the offence

Describe the test for recklessness according to R v G.

A person acts recklessly if:

1. They are aware of a risk that a circumstance exists or a result will occur.

2. It is, in the circumstances known to them, it was objectively unreasonable to take the risk.

When would someone be guilty of unlawful act manslaughter in relation to supplying drugs?

If only supplying then the person taking drugs free voluntary actions break the chain of causation for unlawful act manslaughter

how does the burden and standard of proof operates for self-defence?

The defence has an initial evidential burden.

Once satisfied, the prosecution must disprove the defence to a legal standard—beyond a reasonable doubt

Who is the BOP on for the defence of insanity?

The defence of insanity imposes a reverse burden.

A reverse burden imposes a legal burden on a defendant and the standard of proof is the balance of probabilities.

Can summary only offences be committed by way of an attempt?

NO

What are the requirements for secondary participation?

1. intend to do acts of assist or encouragement

2. intend that the principle will commit the offence with the relevant mens rea, and

3. know the other essential elements of the offence

What is the time limit for appealing from CC to COA?

28 days if conviction is ‘unsafe’ or if sentence is too excessive - permission is required

When is a defence statement required to be filed?

• Crown court = within 28 days of prosecution complying with initial disclosure

• Mags = not compulsory but must be served within 10 business days of prosecution complying with initial disclosure if choosing

What is the slip rule?

CC and mags can amend their decisions

Must be done within 56 days in CC

Magistrates appeals

• Crown court - within 15 business days of sentence

• High court by way of case stated - within 21 days of decision

• High court by judicial review - 3 months and in any case promptly

S34 adverse inference

failure to mention facts later relied on at trial that would have been reasonable to mention now

s35 adverse inference

if the accused is silent at trial

S36 adverse inference

failure to account for a mark, object or substance

s37 adverse inference

Failure to account for presence at the scene

S38 adverse inference

No defendant may be solely convicted based on an adverse inference

What are the turnbull guidelines?

Used If the identification is disputed (or the case wholly depends on the identification)

Warn the jury of the special need for caution before convicting the accused in reliance of the correctness of the identification

What is a newton hearing

When D pleads guilty but there is disagreement with the prosecution as to the material facts on which the defendant should be sentenced.

Grounds for objecting to bail

a)     Fail to attend a subsequent hearing

b)     Commit further offences on bail

c)     Interfere with witnesses (or otherwise obstruct the course of justice)

Appeals on bail for D who is having trial in magistrates

• 2 attempts at mags (first attempt first hearing, 2nd attempt 1 week later)

• 1 attempt at crown court after securing certificate of full argument (heard 1 business day after notice is served)

Appeals on bail for D in crown court

 1 attempt at getting bail at the first hearing and a further application as of right in the Crown

What are the custody time limits?

1)     For trials in the Mags – 56 days

2)     For trials in the Crown – 182 days less any days spent in custody prior to the case being sent to the Crown

Trial must commence before expiry of custody time limit

s76 PACE

where a confession can be excluded from evidence as a result of oppression or unreliability

s78 PACE

gives the court discretion to exclude evidence that would have such an adverse effect on the fairness of proceedings that the court ought not to admit it

Bad character evidence gateways - Defendant

1. Agreement of parties

2. Evidence adduced by D

3. Important explanatory evidence

4. Important matter in issue between D and prosecution

5. Important matter in issue between D and co-defendant

6. Correcting false impression

7. D’s attack on another persons character

Bad character gateways for non defendant

1.     important explanatory evidence

2.     substantial probative value in relation to a matter and is of a substantial importance in the context of the case as a whole

3.     all parties to the proceedings agree to the evidence being admissible.

When is hearsay allowed?

• if it falls under a gateway

• by agreement of parties

• where court is satisfied it is in the interests of justice

Gateways for hearsay

• Unavailable witness

• Business document

• Res gestae

• Confession

What are the statutory thresholds for sentencing?

• Custodial - must not be imposed unless offence must be so serious a fine or community sentence cannot be justified

• Community order - must not be imposed unless offence was serious enough to warrant the making of such order

When is a pre sentence report required

Court must obtain one before passing a custodial or a community sentence unless it considers it unnecessary to do so.

Procedure for determining sentence

1. Culpability and harm

2. Aggravating and mitigating factors

3. Reduce sentence for guilty plea

Reduction in sentence for guilty plea

1. First stage max 1/3

2. After first stage ¼

3. Day of trial 1/10

When must a youth be sent to crown court

• Charged with homicide

• Over 16 and charged with specified firearm offence

When may a youth be sent to crown court?

• charged with dangerous offender e.g. kidnapping

• Grave crimes - first hearing in youth court - is there a real prospect they will be given a sentence in excess of 2 years?

What custodial sentence should be imposed for a youth?

Sentence of 1/3 to ½ of what an adult would get for the same offence

When can a detention and training order be imposed for a youth?

Only if custody threshold has been passed (so serious).

Spend first half of order in custody and second half doing community service

Max 24 months

When should a youth rehabilitation order be imposed?

Only if community threshold has been passed (serious enough)

Community sentence with requirements and targets - max 3 years

What is a referral order?

It is a sentence that can only be imposed on young people.

Mandatory if pleading guilty and first offence.

Can fingerprints be taken without a suspects consent?

Yes if the suspect is informed of:

• The reason for taking the fingerprints/impressions.

• The power under which they are taken.

• That the fingerprints/impressions may be searched against others.

• That the fingerprints/impressions may be retained for a time.

• Record Keeping: A full record must be written up, stating that the suspect was informed as necessary and whether force was used.

what steps are required to extend a suspects detention beyond 24 hours?

• superintendent

• note it in custody record

• allow suspect or their solicitor to make representations