Criminal Law and Procedure Flashcards

Vocabulary practice flashcards covering substantive criminal law concepts, legal authorities, court structures, case progression, causation, mens rea, and PACE suspect rights.

Allocation

The process conducted under s.19 Magistrates' Courts Act 1980 to determine whether an either-way offence should be tried summarily in the magistrates' court or on indictment in the Crown Court.

Allocation Guideline

Guidance stating that either-way offences should be tried summarily unless the outcome would clearly be a sentence in excess of the magistrates' courts' powers or where the case is unusually complex.

Submission of 'no case to answer'

A submission made by the defence after all prosecution evidence has been heard, effectively stating that the prosecution has failed to present an arguable case.

Indication of Sentence

A discretionary indication given by the court under ss.20 & 20A MCA, limited to stating whether a custodial or non-custodial sentence would be more likely if the defendant consents to summary trial and pleads guilty.

Indictment

The formal legal document listing the alleged criminal charges against a defendant in the Crown Court.

PTPH (Plea and Trial Preparation Hearing)

A Crown Court hearing, usually taking place within 28 days of sending, where the charge will have been drafted into an indictment and pleas are entered.

Arbiter of Law

The role of the judge in a Crown Court trial, who is responsible for deciding all legal matters and directions except determining guilt.

Arbiter of Fact

The role of the jury in a Crown Court trial, responsible for determining the guilt or innocence of the defendant based on the evidence presented.

Voir Dire

A hearing conducted in the absence of the jury to determine the legal admissibility of a specific piece of evidence.

Summary Offences

The least serious category of criminal offences, which can only be tried in the Magistrates' Court

• assault

• battery

• simple criminal damage (inc attempts) under 5k

• attempts to commit above

Indictable Only Offences

The most serious category of criminal offences, which can only be tried by a judge and jury in the Crown Court

• robbery

• wounding or casuing GBH with intent s18 OAPA

• aggravated burglary s10 theft act

• aggravated arson

• aggravated criminal damage

• murder

• involuntary manslalughter

Either-Way Offences

Offences that can be tried either summarily in the Magistrates' Court or on indictment in the Crown Court

• theft s1 theft act

• burglary

• fraud (false representation, abuse of position, failure to disclose)

• assualt occasioning actual bodily harm s47 OAPA

• wounding or inflicting GBH s20 OAPA

• simple criminal damage exceeding 5k

Conduct Offences

Offences where the actus reus requires only that certain acts or conduct be committed by the defendant, without requiring a specific consequence (e.g., blackmail under s.21 Theft Act 1968).

Result Offences

Offences where the actus reus requires the defendant's action to cause a specified consequence or result (e.g., murder).

Factual Causation ('But-For' Test)

The test established in R v White requiring proof that 'but for' the acts or omissions of the accused, the prohibited result would not have occurred as it did.

Legal Causation

The principle requiring the defendant's culpable conduct to be an 'operating and substantial' cause of the prohibited result (R v Pagett), meaning more than de minimis or minimal (R v Hughes).

Novus Actus Interveniens

A subsequent intervening act or event by a third party, victim, or natural force that breaks the chain of causation and relieves the defendant of criminal liability.

Thin Skull Rule

The principle that a defendant must take their victim as they find them, meaning pre-existing physical or mental vulnerabilities of the victim do not break the chain of causation (R v Blaue, R v Hayward).

Direct Intention

The aim or purpose of the defendant's act, as defined in R v Moloney.

Oblique Intention

A form of intention where the prohibited outcome is not the defendant's primary purpose, but the defendant foresees that the result is a virtual certainty of their actions (R v Woollin).

Recklessness

The state of mind where a person is subjectively aware of a risk that a circumstance exists or a result will occur, and it is unreasonable to take that risk in the circumstances known to them (R v G [2003]).

Coincidence of Actus Reus and Mens Rea

The fundamental legal principle requiring the defendant to possess the necessary mens rea at the exact moment the actus reus is committed.

Continuing Act Theory

The rule established in Fagan v MPC where an actus reus continues over time, and forming the mens rea at any point during its continuance satisfies the coincidence rule.

One Transaction Principle

The doctrine from Thabo Meli and R v Le Brun treating a series of connected acts as a single transaction, so that mens rea present at any point during the sequence satisfies the coincidence requirement.

Transferred Malice

The legal doctrine allowing a defendant's mens rea against an intended target to transfer to the actual victim (R v Latimer), provided the actual harm constitutes the same offence (R v Pembliton).

Absolute Liability

Offences that do not require any mens rea for any element of the actus reus, requiring only proof of the actus reus and the absence of a valid defence (Winzar v Chief Constable of Kent).

Strict Liability

Offences that do not require proof of mens rea for at least one aspect of the actus reus.

Overriding Objective (CrimPR Rule 1.1)

The fundamental rule governing criminal cases that requires dealing with a case justly, including acquitting the innocent, convicting the guilty, and managing proceedings efficiently.

Relevant Time

The starting point for calculating police detention limits under s.41 PACE, defined as the time the suspect arrives at the police station or 24 hours after arrest, whichever is sooner.

Section 58 PACE

The statutory right of a suspect in police detention to consult privately with a solicitor and receive free independent legal advice.

Section 56 PACE

The statutory right of an arrested suspect to have a relative, friend, or named person informed of their arrest at public expense.

Appropriate Adult

A designated individual required under PACE Code C to assist, advise, and support a suspect under 18 or a mentally vulnerable detainee during police procedures.

Assault

A common law offence committed when a defendant intentionally or recklessly causes the victim to apprehend immediate and unlawful personal violence.

Battery

A common law offence committed when a defendant intentionally or recklessly applies unlawful force to another person.

Section 47 Offences Against the Person Act 1861

The offence of assault occasioning actual bodily harm, requiring an assault or battery that causes ABH, with mens rea required only for the underlying assault/battery.

Section 20 Offences Against the Person Act 1861

The offence of unlawful wounding or inflicting grievous bodily harm, requiring the defendant to intend or be reckless as to causing some harm.

Section 18 Offences Against the Person Act 1861

An indictable only offence of wounding or causing grievous bodily harm committed with specific intent to cause grievous bodily harm.

Criminal Courts Structure in England and Wales

The jurisdictional hierarchy of criminal courts spanning Magistrates' Court, Youth Court, Crown Court, High Court (QBD), Court of Appeal (Criminal Division), and the Supreme Court.

Summary Offences Case Progression

The procedural flowchart detailing case steps for summary offences from commencement and first hearing through plea, trial, conviction, and sentencing.

criminal damage how is value of the damage calculated

• property destroyed = cost of replacement

• damaged = repair or replacement, whatever’s cheapest

criminal damage uncertain of value of damage procedure

defendant asked if ok to be tried summarily, yes = summary trial and sentence limited to 3 months or lvl 4 fine

defendant asked if ok to be tried summarily, no = either way and higher sentencing powers will be applied on conviction

magistrates sentencing powers

Summary only offences- maximum 6 months’ imprisonment

Either-way offences -​ maximum 12 months' imprisonment

Two or more either way offences -​ Maximum 12 months’ imprisonment​

crown court sentencing powers

-           Differ depending on offence and contained within relevant statute.

-           As only either-way offences are considered at allocation, the maximum sentence available for consideration would be 12 months.

 it is the role of the prosecution to present sufficient admissible evidence to persuade a tribunal (either magistrates or a jury) to convict the defendant….

beyond a reasonable doubt

when does plea get entered for either way offences and why?

before venue of hearing to decide which court to pursue in

idpc what is it and when does it occur

initial details of the prosecution case and during the plea submission process

what is a no case to answer

the prosecution has failed to present an arguable case

where does the burden of proof rest

with the prosecution; indicative of the adversarial system

indication in summary only offences?

where the defendant can request information like whetehr they will likely get a custodial or non custodial sentence

court under no obligation to provide

only time aminor will be in magistrates

if being charged jointly with adult, will ordinarily be in youth court

The magistrates’ court is comprised of either…

hree lay magistrates called the bench (dealing with criminal and civil proceedings, or the Family Court, or both.)

 or a full time district judge (criminal).

crown court presided over

 a circuit judge (or a part-time judge called a recorder) who is is responsible for all matters in court except determining guilt (the arbiter of law)

jury

Unless the defendant enters a guilty plea, guilt is decided by a *** at trial

jury

where the defendant has the burden of proof, they must only prove on

the balance of probabilities

factual causation

the jury must be satisfied that the acts or omissions of the accused were in fact the cause of the relevant consequence.

legal causation

Requires that the harm or damage must result from a culpable act or omission on the part of the defendant, and that the defendant's actions were not too remote and were more than a minimal cause of the harm or damage suffered by the victim.

factual causation caselaw principle list

• there must be a causal link between the consequence and the act R v White [1910] 2 KB 124

• any action which accelerates death is a cause R v Dyson (1908)

legal causation caselaw principle list

• the defendant is the operating and substantial’ cause of the prohibited consequence: R v Pagett (1983)

• The consequence must be caused by the defendant's culpable act, R v Dalloway.

• The defendant's act need not be the only cause of the prohibited consequence (If the defendant's negligence mainly or substantially caused the accident, it was irrelevant that it might have been avoided if other persons had not been negligent.), R v Benge.

• it suffices if the act or omission under consideration is a significant (or substantial) cause, in the sense that it is not de minimis or minimal. r v hughes

novus actus interveniens

a subsequent event or act of either the victim or a third party which renders the defendant’s part in the consequence very small, breaking the chain of causation and meaning that the defendant is not criminally liable.

novus actus interveniens medical negligence

• ‘…if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that death does not follow from the wound.' - r v smith

• poor medical treatment does not break the chain of causation, unless the negligent treatment was so independent of his acts, and in itself so potent in causing death, that they regard the contribution made by his acts as insignificant.’- r v cheshire

novus actus interveniens 3rd parties

there may only be a break in the chain of causation if the actions of the third party were 'free, deliberate and informed.

reasonable acts done in the purpose of self preservation are fine

novus actus interveniens fright and flight

• there should be proportionality between the gravity of the threat and the action of the deceased in seeking to escape from it - R v Williams and Davis

• the victim's reaction would only break the causation if it were an act that was 'so daft' that no reasonable person could have foreseen it - r v robert

TLDR: there has to be some kind of specificity int he nature of the threat, r v roberts was sexual assault and the driver had started trying to take off her clothes, r v williams and davis the guy was being threatened by knife for a robbery and there was no evidence as to the nature of the threat.

STEPS:

reasonably foreseeable with the defendant’s knowledge of victim’s characteristics?

whether victim’s reaction within expectable range of responses

novus actus interveniens refusing emdical treatment

• Defendants must take their victims as they find them and that meant the whole person, in both mind and body. r v blaue

• It did not matter whether the wound was instantly mortal or whether it became the cause of death because the deceased refused the recommended treatment. ‘ r v holland

• were the injuries by the defendant an operating and significant cause of death? in common sense terms - r v dear

novus actus interveniens suicide

chain of causation unbroken

• the injuries inflicted by the defendant have healed, but the victim goes on to die by suicide r v wallace

• voluntary and informed decision of the victim to act (administer drugs, supply doesn’t equal cause administration)

• victim dies from original wound

• act reasonably foreseeable (brilliant pianist loses her fingers)

novus actus interveniens thin skull rule

a person who inflicts harm on another cannot escape liability if the victim, owing to some pre-existing infirmity or peculiarity, suffers greater harm than would have been expected as a result of what the accused has done. r v hayward & r v blaue

novus actus interveniens natural events

Natural events will only break the chain of causation if they are 'extraordinary' and not reasonably foreseeable.

For example, if D knocks V unconscious and leaves V on the beach then V is drowned by the incoming tide, D has legally caused V's death. The natural event of the tide coming in is reasonably foreseeable.

criminal liability for omissions

the prosecution must prove that:

i. the crime is one which is capable of being committed by an omission. Some offences can only be committed by an act, e.g. unlawful act manslaughter (R v Lowe);

ii. the accused was under a legal duty to act;

iii. the accused breached that duty;

iv. the breach caused the actus reus of the offence to occur; and

v. should the offence so require, that the accused had the required mens rea.

types of legal duty to act

special relationships

dr & patient

spouses

parents

voluntary assumption of care

contractual

creation of a dangerous situation

public office holders (policemen)

omission and causation principle

if the defendant had acted, D could have made a causal difference.

direct intention

the consequence is what the defendant aims to happen. It is the purpose or objective of D’s act.

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

given ordinary meaning

oblique intnetion

Where the consequence is not the defendant's purpose but rather a side effect that D accepts as an inevitable or certain accompaniment to D’s direct intention.

(ii) although it is not his purpose to cause it, he knows that it would occur in the ordinary course of events if he were to succeed in his purpose of causing some other result.'

recklessness

when somebody takes an unjustifiable risk, aware of the danger that the prohibited harm may occur upon taking that risk

If risk taking is justifiable, there is social utility or value to the activity, against the likelihood and the amount of harm that might happen.

'A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to –

(i) a circumstance when he is aware of a risk that it exists or will exist;

(ii) a result when he is aware of a risk that it will occur;

negligence

Negligence is when the defendant’s actions fall below the standard of a reasonable person.

establishing gross negligence and civil negligence

'… in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment.'

transferred malice limits

transferred malice will not assist where the defendant has the mens rea for one crime and the actus reus for another.

mens rea mistake

If the defendant does not know they are breaking the law, this mistake will not help avoid liability.

This is the case even if the defendant’s ignorance is quite reasonable, and even if it were impossible for D to know of the prohibition in question.

mens rea mistake reasonableness

If the mens rea required for the relevant element of the actus reus is intention or recklessness, there is no need for the mistake to be reasonable. If the mens rea requirement is negligence, then the mistake must be reasonable.(accidentally taking the wrong umbrella on leaving a restaurant)

defences: intoxication

• With involuntary intoxication (such as being drugged without consent), the court will ask did the defendant form the mens rea even though intoxicated?

• with less serious crimes of basic intent (where recklessness is a form of mens rea available), the defendant will be deemed reckless if they would have foresaw the risk of harm if sober

defences: consent

• If the offence is an assault or battery, consent is available if the victim consented or D honestly believed that V was consenting

• If D intended to cause the offence of actual bodily harm or above, consent is not available ( R v Brown [1994] AC 212) unless some of the public interest exceptions apply: medical treatment, sport, horseplay, tattooing/ personal adornment and sexual gratification/ accidental infliction of harm.

defences: self defence

 Self-defence can be used in protection of yourself, another or property.

• If successful, the defendant will be acquitted.

• It is a defence that is found in both common law and a statute, called the Criminal Justice and Immigration Act 2008, s.76 (as amended).

The defendant is entitled to rely on the defence if:

• the defendant honestly believed that the use of force was necessary; and

• the level of force the defendant used in response was objectively reasonable in the circumstances as the defendant believed them to be.

CrimPR overriding objective?

dealing with a criminal case justly (fairness, respecting all parties interests and ensuring they are informed, efficient and expeditious case management)

General practice directions: When must the prosecution serve notice of intention to introduce bad character or hearsay evidence?

Within 20 days after a not‑guilty plea is entered.

General practice directions: By when must any objection to a witness statement being read at trial be made?

Within 5 business days of service of the witness statement.

General practice directions: When must the defence indicate opposition to a prosecution notice to introduce bad character or hearsay evidence?

Within 10 business days of service of the notice.

General practice directions: When must the defence give notice of intention to rely on hearsay evidence?

As soon as reasonably practicable.

General practice directions: When must the defence apply to introduce the bad character of a prosecution witness?

Within 10 business days after prosecution disclosure.

General practice directions: When must the defence serve a defence statement (if one is to be served)?

Within 10 business days of the prosecution complying with initial disclosure.

General practice directions: When must the defence serve statements for witnesses not called to give live evidence

At least 10 business days before trial.

General practice directions: When must any point of law be identified with skeleton arguments?

At least 10 business days before trial.

General practice directions: When must both parties serve a certificate of readiness?

10 business days before trial.

Sanctions per rule 3.5(6) of the Crim PR?

If a party fails to comply with any rule or a direction, the court may

o   fix, postpone, bring forward, extend, cancel or adjourn a hearing;

o   exercise its powers to make a costs order; and

o   impose such other sanction as may be appropriate.

o   the court may refuse to allow that party to introduce evidence;

o   evidence that the party wants to introduce may not be admissible; or

o   the court may draw adverse inferences from the late introduction of an issue or evidence.

PACE: police stations

Usually a person arrested must be taken to a police station as soon as practicable.

The exception is where their presence at a place other than a police station is necessary to carry out such investigations as it is reasonable to carry out immediately. This can include:

• being searched;

• being taken to premises being searched; or

• being taken to a place to check their alibi.

at a police station, who authorises continued detention

the custody officer, who is always of a rank of at least sergeant and must be unrelated to the process of the investigation of the offence

The custody officer must order the release of the person detained if the custody officer becomes aware that the grounds for detaining the person have ceased to exist

The custody officer is responsible for ensuring that a detained person is treated in accordance with the provisions of the Codes of Practice.

reviews of detention: who does it and when

review officer must be of at least inspector rank and not connected to the investigation of the offence

• 1st review: not more than six hours after the suspect's detention was first authorised

• periodically every nine hours thereafter

At the time of the review, the detained person must be reminded of their right to free legal advice, and be given the right to make representations unless they are:

-           unfit to make such representations or

-           asleep at the time of the review.

Before the 24 hour limit on detention has expired the suspect must either be *** or ***

charged or released

extended detention beyond 24 hours for extra 12 after relevant time?

• superintendant authorises,

• reasonable grounds for believing detention is necessary to secure or preserve evidence or obtain evidence by questioning

• indictable offence

• the investigation must be being conducted diligently and expeditiously.

authorisation must be given before 24 hrs but after 2nd review has occurred

• explained to suspect and noted in custody record

• the suspect and/or the suspect’s solicitor should be allowed an opportunity to make representations.

extended detention beyond 36 hours?

• apply to magistrates court for warrant of further detention

• The warrant may authorise continued detention for a further 36 hours on a first application

• 36 hours (up to a maximum of 96 hours) on a second application

offence must be indictable and there must be reasonable grounds for believing further detention is necessary to secure or preserve evidence or obtain evidence by questioning

PACE s58 right to consult a solicitor must be told to defendant when?

• the commencement or recommencement of an interview;

• being asked to provide an intimate sample;

• an intimate drug search;

• an identification parade or video identification procedure.

PCAE s58 right to consult a solicitor delay requirements

• indictable ofence

• authorised inwriting by superintendant

• reasonable grounds: o   interference with/harm to evidence connected with an indictable offence;

  o   interference with/harm to others;

  o   alerting of other people suspected of committing an indictable offence but not yet arrested for it; and /or

  o   hinder the recovery of property obtained in consequence of the commission of such an offence.

can only be delayed up to 36 hours

this would not usually provide justification to delay the right to legal advice generally and the suspect must be allowed to choose an alternative solicitor (if in the case of the belief of passing on a message via solicitor)

s56 PACE right to have someone informed of the arrest delay requirements

• indictable offence

• inspector authorises

• reasonable grounds via

  • o   interference with/harm to evidence connected with an indictable offence;

  • interference with/harm to others

  • alerting of other people suspected of committing an indictable offence but not yet arrested for it; and /or

  • hinder the recovery of property obtained in consequence of the commission of such an offence.

can only be delayed up to 36 hours