Paper 1 - English Legal System & Criminal Law
Roles 4
Roles 4
Roles 5
Judges 5
Types 5
Sex 6
Jurors: 6
The use of Juries - used in 4 courts: 6
Vetting 8
Advantages and Disadvantages 9
Appointment 10
Roles: Civil 10
3 Categories of Criminal Offences 10
Sentencing 12
Community service/ Community Penalty 12
Fines 13
Deter - General (all)/ individual (one) 13
Rehabilitation - back to public 13
Reparation 14
Aggravating 14
Mitigation 14
Appeals 14
County court 16
High court 17
Family 17
Chansory 17
Advantages and disadvantages of using civil courts 17
ADR and Employment Tribunals 19
Negotiation 19
Advantages and Disadvantages 19
Mediation 19
Advantages and Disadvantages 20
Conciliation 20
Advantages and Disadvantages 20
Arbitration 20
Advantages and Disadvantages 20
Advantages and Disadvantages 21
Murder 22
Scenario 24
Content + Cases - Loss of control 25
Content + Cases - Diminished Responsibility 27
Scenario - Diminished Responsibility 27
Content + Cases - Unlawful Act Manslaughter 28
Scenario - Unlawful Act Manslaughter 30
Content + Cases - Gross Negligence Manslaughter 30
Scenario - Gross Negligence Manslaughter 32
NFOAP 32
Scenario 33
Essay 35
Points 35
Attempts 38
Scenario 39
Consent 39
Scenario 41
Essay 41
Point 41
Self-defence 42
Scenario 43
Essay 43
Point 43
Duress 44
Scenario 44
Intoxication 44
Scenario 44
English Legal System
Please - Pro Bono
Try - Translating client discussions into legal terms.
Contacting - Client interviewing
Lawyers - Legal admin
Really - Representing cases
Fast - Finance managing
Solicitors are employed with about 150K solicitors in the uk.
They work in law firms (DLA Piper) / courts/ stations and ‘In house’.
The governing body for a solicitor is the law society
Support solicitors
Uses a disciplinary procedure if there are any complaints made about solicitors by the public
Overseas training, is coming under pressure for change and modernisation like the Bar Council
The regulations for solicests is the Solicitor Regulation Authority who deals with complaints about professional misconduct of solicitors.
Review evidence
Advocacy (prosecute and defend)
Writing document
Prepare for court
Advise clients
Negotiate settlements
Court
Appeal the law
Knowledge of law
Examining evidence
There are about 35K Barristers in the UK.
They can be employed and self-employed.
They can be found in courts and chambers.
The governing body for barristers is the Bar Council.
Oversees the training, work and discipline of barristers
A powerful, self-regulating organisation
Sets its own rules and standards and is very defensive of its members
Reluctant to change
The regulations for a barrister is the Bar Standards Board
They set the training standard
They created the Code of Conduct barristers need to follow
They will investigate and discipline any barristers who break the code of conduct.
Specialise in one area
Contact professionals on behalf of clients
Represent clients in court
Advise clients
Prepare bills for clients
Prepare legal documents and contracts
Explain legal matters to clients
Draw up wills
There are about 8K legal executives in the UK
They are employed
They can be found in law firms
The governing body and regulations for legal executives is the Chartered Institute of Legal Executives.
Training is a combination of self-study, evening courses and day release
Employer often helps with the costs of the course
There are 2 groups of judges; superior judges and inferior judges.
Inferior - Circuit Judges, District Judges and Recorders.
Superior - appointed by the Lord Chancellor’s Department - Superior judges are Justices of the Supreme Court, Lord Justices of Appeal and High Court Judges.
Hear cases of First Instance in the Courts of First Instance - Magistrates, county, crown and sometimes the High Court
Decide the law and facts
Allocate their cases to their correct track.
Hear mainly small track cases
Give the remedy to the situation
These cases are within strict time - carried out fairly in the court.
Justices of the Supreme court hear appeals from the Court of Appeal and the High Court.
Appeals on points of law of general public importance and appeals with arguable points of law.
Listen to the arguments from both sides
Decisions will become precedents.
Lord Justices of Appeal hear appeals from the High Court, County Court and certain Tribunals.
Can hear cases in lower court
Hear appeals against the decision made by the court - liability and remedy awarded.
High Court Judges hear cases in the High Court but sometimes Crown Court.
Hear cases of First Instance and Appeals.
Hear evidence from the witness, decide what the law is and make a decision (liability)
Take a more active role
Deciding the facts of the case
Decide verdict where there is no jury
Deciding the remedy for the injured party
Will decide on time limits and penalties if appropriate
Determine the final decision in regard to the law
Determine how much, if any, compensation is owed/ other penalties such as an injunction
Determine how much and if the unsuccessful party pays for the successful party's costs.
Judge acts as a referee
Summing up
Informing the duty of the relevant law
Delivering sentence on a guilty verdict
Decides legal matters (which evidence is admissible, whether bail should be granted)
Regulates the trial - make sure each party has a chance to speak + that witnesses or defendants are not unduly bullied or harassed
Making notes on the relevant points
Carefully explain these to the Jury (so they does not influence them)
Advise and answer questions from the Jury
Decide whether or not a majority sentence is acceptable.
Higher court = 3 women v 34 men - civil appeal
26% women - high court + 
44% female in magistrates court (District Judges)
80.6% white 8.5% ethnic - minority
Improving - increased in the last 20 years
75% = Oxford or Cambridge
65% = Private schools 
Good education = good decision making
Crown Court
Jury - 12 people
Deal with serious criminal cases, such as murder and rape.
Their duty is to decide the verdict - Guilty or not guilty?
High Court
Jury - 12 people
Deal with - False imprisonment, Malicious imprisonment, defamation and any case alleging fraud
Their Duty is to decide the liability of the claimant (this means, have they proved their case?) and decide the number of damages the defendant must pay the claimant.
Country Court
Exactly the same as the High Court, except their Jury consists of 8 people rather than 12.
Coroner's Court
Jury - varies between 7 - 11.
Deal with - Death: In custody, As a result of an act or omission by a police order, Where the death was a notifiable accident, poisoning or disease.
Their duty is to decide on the cause of death
The present qualifications are set out in the Juries Act 1972 which state, in order to qualify an individual, one must be:
18 - 70
Registered as a parliamentary or local government elector
Resident in the United Kingdom, the Channel Islands or the Isle of man for at least 5 years since their 13th birthday.
Selected from the electoral register by Central Summoning Bureau – legal obligation
Ballot to decide which case
Challenged
Sworn in and take oath
They are disqualified if:
Sentenced to five years or more imprisonment (Disqualified for life)
Served a prison sentence or suspended sentence or community order (Disqualified for 10 years)
On Bail (disqualified whilst on bail)
Mentally ill and disordered individuals under the Mental Health Act 1983 are disqualified.
Blind and deaf people are also disqualified because they won't be able to see the evidence or hear certain ways the evidence/other individuals involved communicate and their specific way of saying and pronouncing things. Also if a sign language interpreter was invited in, that would mean the Jury would consist of 13 people, when the rule is 12.
Selected at random from the electoral register - Jury Central Summoning Bureau
Summons sent to these people
They must attend unless the will have to pay a £1,000 fine
Must attend for 10 working days
Provides a cross-section of the public
Background check
Further selection in court – choose 12 from a random pool using cards
A court clerk will select 12 out of 15 potential jurors at random
If the jury member knows who stands for hearing they must tell the judge and the judge will decide if they stay on the jury
When the potential Jurors are checked for suitability, there are two types of vetting:
Routine Police Checks - Made on prospective jurors, to eliminate those disqualified. R v Mason (1980) Where a Chief Constable had been allowing widespread use of unauthorised vetting of criminal records. However, the Court of Appeal approved this type of vetting. They pointed out that since it's a criminal to serve a Jury whilst disqualified, the police were only doing their duty of preventing crime, by checking such records.
Juror's Background checks - Attorney-General published guidelines in 1980 on when political vetting of jurors should take place. These state that this type of vetting should only be used in exceptional cases, involving national security and terrorist cases, to check the individuals' political affairs and their loyalty.
Individual jurors may challenge for a cause - for example, they know the juror.
The whole panel may be challenged for biassed selection - but no right to a multi-racial jury (R v Ford (1989))
Juries in civil cases are now only used in very limited circumstances but where they are used they have a dual role.
They decide whether the claimant has proved their case or not, then if they decide that the claimant has won the case, the jury also goes on to decide the number of damages that the defendant should pay to the claimant.
Rules for when juries may be used in civil cases are set out in section 69 of the Senior Courts Act 1981, for High Court cases and section 66 of the County Courts Act 1984, for cases in the County Court.
These acts state that parties have a right to a jury trial in the following cases:
Defamation
False imprisonment
Malicious imprisonment
Any case alleging fraud
HOWEVER, A jury can be refused if the judge feels the case involves complicated documents or accounts or scientific evidence and is therefore thought to be unsuitable for a jury trial.
Although juries are very important, in the criminal justice system, they actually deal only in a minority of the cases.
The jury can try a case in the Crown Court, and if the defendant pleads not guilty and the trial proceeds further, they will be tried before the jury. There is a split function in that the Judge decides the points of Law and the Jury decides the facts. The Judge has the power to direct the jury to acquit the defendant because the judge has decided that the prosecution's evidence has not made out a case against the defendant (This is called a direct acquittal and occurs in 10% of cases.)
The judge will sum up the case at the end, and direct the Jury on any point of Law involved. The Jury retires to a private room and makes a decision on the guilt or innocence of the accused in secret. They must try to come to a verdict that they all agree on. The Judge must accept the verdict, even if they disagree with it!
The Jury discussion takes place in secret and there can be no inquiry into how the jury reached its verdict. The Contempt of Court Act 1981 makes disclosure of anything that happened in the Jury room.
Advantages | Disadvantages |
|---|---|
Public Confidence | high acquittal rates undermine confidence in the Criminal Justice System |
Considered to be a fundamental part of a democratic society | doing Jury service is unpopular |
Jury Equity | this can cause perverse verdicts (Jury relying on their opinion of what's right and wrong, rather than the law) |
Open system of justice | Media Influence - ie. they may say in The Sun that the defendant is a rapist when they could actually be innocent, and the jurors may read this and therefore be influenced in making their verdict |
Involves members of the public | media influence is a disadvantage. |
Secrecy of the jury room protects jurors from pressure | reasons for the decision are not known and the Jury's understanding of the case cannot be checked. |
Impartiality (Having 12 members with no direct interest in the case should cancel out any bias) | some cases there have been biassed and racial bias |
No specific qualifications
Must be the right character – 6 key qualities
Good character
Understanding & communication
Social awareness
Maturity & sound temperament
Sound judgement
Commitment & reliability
Age: 18-65 *retire at 70 (some disqualifications, e.g. serious criminal conviction or undischarged bankrupt)
Commitment of 13 days per year
Local Advisory Committee selects and appoint
Names can be put forward by anyone and adverts are used
Candidates interviewed and names put forward to Lord Chief Justice.
Appointed through recommendation for recruitment of advisory committees, public bodies of current magistrates and non-magistrates.
Local Advisory Committee - volunteer
Interview 1 - maturity, sound judgement + reliability social judgement, understanding and communication, good character
Interview 2 - case studies
There are 700 new magistrates appointed per year
They are appointed by the Lord Chief Justice based on recommendations from the Local Advisory Committees
Such committees have 12 members and at least 1/3rd are non-magistrates
Magistrates hear cases in the family proceedings court and make decisions on a range of issues affecting children and families.
Magistrates also decide whether to grant certain orders, licences or certificates.
council tax bills, television licences and enforcing debts owed to the gas, electric and water utilities.
Enforce financial penalties
They try about 97% of all criminal cases.
Also deal with preliminary hearings in the remaining 3% of criminal cases.
Issue warrants for arrest search
Grant applications for bail or remand defendants in custody
In summary trials determine whether a defendant is guilty or not
Pass sentence on a defendant who has been found guilty
May decide to hear an either-way offence if the defendant also agrees.
Sit in the Crown Court with a judge to hear appeals from Magistrates’ Courts against conviction or sentence
Sit in the Crown Court with a judge to hear committals for sentence
Commit defendants convicted of either way offences to the Crown Court for sentence
Sit in the Youth Court to hear cases involving young offenders aged 10-17
Least serious criminal offences.
Must be trialled in the Magistrates' court
The most serious offences that have to be trialled in the crown court
Strats at the magistrates court to find the identity of the defendant
If the defendant pleads not guilty, a jury will decide if the defendant is guilty or not after hearing all the evidence
If the defendant pleads guilty, the judge will impose a sentence
When sentencing the judge can impose any sentence up to the max of tha offence (murder, Mansalughter and robbery)
More serious offences
These offences contain include assaults causing actual bodily harm and theft of property over £200
These differences can be trialled in either the magistrates or the crown court.
If it started at the magistrates - then the process is similar to summary offences the only difference is that if the defendant pleads guilty or is found guilty, the magistrates have the power to send the defendant to the crown court for sentencing. - they can only do this if they think that they cannot give an adequate sentence.
If the case starts at the crown court the trial will continue like an indictable offence. if the defendant pleads guilty or is found guilty, the judge decides the sentence up to the maximum of that offence.
The defendant will be put before the Magistrates’ Court who will deal with administrative matters (known as an Early Administrative Hearing). This may be done by a single Magistrate or the Legal Adviser who will make decisions about legal aid and bail.
They aim to complete the case as quickly as possible. When the hearing starts the court clerk will take the defendant's plea (weather they say they are guilty or not guilty)
Over 90% of defendants in the magistrates’ court plead guilty.
If the defendant pleads guilty, the magistrates can sentence the defendant immediately or adjourn the case to allow for a pre-sentence report to be made by the probation service (these reports outline the defendant’s circumstances and can aid the magistrates in their sentencing).
The jurisdiction of the Magistrates’ Court is imprisonment up to 6 months for one offence and Magistrates can also impose community-based sentences, fines and conditional or absolute discharges.
If the defendant pleads not guilty the magistrates will try to find the issues involved and set a date for the trial.
After the preliminary administrative matters have been dealt with at the Magistrates’ Court, a defendant charged with an indictable offence will be sent to the Crown Court. If the defendant pleads guilty to an indictable offence, the judge will pass sentence. If the defendant pleads not guilty, he or she will be tried by a jury who will decide the verdict. If found guilty by the jury, the judge will pass a sentence.
After the Early Administrative Hearing, a person charged with a triable either-way offence will have a ‘plea before venue’ hearing where the defendant will enter a guilty or not guilty plea. If the defendant pleads guilty, the magistrates will sentence. If however, the magistrates believe that the defendant deserves a more severe punishment than they have the power to give, the magistrates will send the defendant to the Crown Court for a judge to pass sentence.
If the defendant pleads not guilty, there will be a ‘mode of trial’ hearing. Magistrates will consider the case and decide if they accept jurisdiction (have enough sentencing power). They will consider the seriousness of the case and hear reasons from both the prosecution and the defence. If the magistrates decline jurisdiction, the case will be sent to Crown Court for a trial by judge and jury. If the magistrates accept jurisdiction, the defendant has the right to opt to be tried summarily at the Magistrates’ Court or choose a trial by jury at the Crown Court.
Divided into levels which carry out different maximum fines:
Level 1 - max £200 (magistrates)
Level 2 - £500 (magistrates)
Level 3 - £1000(magistrates)
Level 4 - £2500 (magistrates)
Level 5 - unlimited (magistrates + crown)
There are 2 types: general and individual.
This aim is to reduce crime by dissuading people from offending or reoffending.
Individual deterrence
The aim is to deter that particular person from re-offending. A custodial sentence could act as a deterrent as the offender who is sent to prison will be reluctant to reoffend as they do not want to be
sent back in the future.
General deterrence
The aim is that people will be deterred from committing crimes by the level of punishment that they will receive if convicted. People convicted of certain crimes will be given a very harsh sentence to deter others from committing the same crime. This might be used if a particular type of crime has become a problem in an area – for example football hooliganism, joy-riding or mobile phone robberies.
To reduce crime by reforming the offenders and h=rehabilitate them into society. To alter the offenders’ behaviour so that they don't reoffend.
An offender is helped to solve the issues that lie behind his/her criminal behaviour. Eg - A drug addict who steals to fund their habit may be assisted to overcome their addiction thereby removing the need to steal in future. A person who reacts aggressively and commits acts of violence may be sent on an ‘Anger Management’ course. Other offenders may be helped to develop their social skills and some may undertake training to improve their chances of employment.
Individualised community sentences are often used to help rehabilitate the offender in the hope that this will reduce the chance of reoffending in the future. The probation service will often be involved to help the offender deal with the issues that have resulted in their offending
Main aim is to protect the public from violent or prolific offenders. For Example, Imprisonment removes these criminals from the public domain by restricting their liberty. In physically restraining offenders, it protects the public, albeit temporarily from becoming the victims of further acts of crime. a drunk driver will be disqualified from driving. Offenders who are subject to a curfew or electronic tag will restrict their movements and therefore, reduce their contact with the general public.
To punish the offender who deserves punishment for carrying out a criminal act(s). The idea is that if a person has knowingly done wrong, they deserve to be punished and society expects that they are. NOT to reduce the amount of crime or fix the offender’s future behaviour.
Only concerned with the offence that was committed and making sure that the punishment fits the crime.
“An eye for an eye, a tooth for a tooth and a life for a life” used in America as convicted shoplifters are made to stand outside the shop that they stole from with a sign proclaiming that they are a thief.
Aim at compensating the victim of the crime by ordering the offender to pay a sum of money or to make a reparation like giving back something they stole. They could also carry out work in the community encouraging offenders to accept responsibility for their crime.
Aggravating factors will increase the sentence and mitigating factors will reduce the sentence. In the Magistrates’ Court, it is the magistrates who decide on the sentence whilst at the Crown Court it is the judge who sentences the offender.
These are factors which make an offence more serious and can result in a more severe sentence being passed. They can include a number of things such as the use of a weapon, a premeditated attack, if the offence involved a breach of trust, a racist or religious motive behind the offence, if the victim was particularly vulnerable. It also includes any relevant previous convictions and if the offence was committed whilst on bail.
Mitigating factors may relate to the offender and can include previous good character, personal circumstances and the fact that they have shown remorse. Under s.144 of the Criminal Justice Act 2003, a prompt guilty plea can reduce the sentence by up to one third. This reduction reduces the closer it gets to the trial.
Other mitigating factors include assisting the police, the fact that the offence was committed on the spur of the moment rather than being premeditated, the fact that the offender was provoked or an attempt by the offender to compensate the victim.
An indictment - formal charge
Prosecution a trained lawyer who tries to prove the defendant guilty of committing a crime in a court of law
Defence - people that are facing indictment
Point of Law of General Public Importance - no right to appeal to the supreme court as permission is needed
Jury Nobbling - the actual of attempted influence of one or more jury members through intimidation or inducement.
Manifestly Severe - sentence might be deemed too severe/strong/harsh
Unduly Lenient - leapfrog procedure (sentence might not be strong enough) - skip court of appeal (precedence)
Unsafe Conviction - (conviction - outcome/ guilty) - police misconduct evidence, the law applied incorrectly
Trial de Novo - new trial
Double Jeopardy - defendant cant be trialled unless new evidence is found
If the defendant is a company, a registered office must be situated there.
All contract claims & almost all tort actions up to a value of £50,000 can be tried in the county court; the only tort action that can't be tried is libel.
Most county courts deal with divorce cases, bankruptcy cases, tax cases, land law disputes.
All fast-track actions must be taken in the county court.
Appeals are heard by a circuit judge (small claims cases), a single High Court judge (fast-track cases) or a court of appeal (multi-track cases).
In all cases leave to appeal must be granted.
Small Claims Arbitration procedure: has a jurisdiction to hear cases up to a value of £5000 (£1000 for personal injury claim). Less formal procedure and a district judge presides over this (legal aid not available). This arbitration has dealt with many cases that could not have been pursued in the county court itself because of the high costs, delay and complexity.
The high court is set up in divisions: Queen's bench, chancery and family division. There is no financial limit to the jurisdiction of the high court.
Traditionally hears contract and tort actions, it also has jurisdiction to hear defamation (mainly libel) cases. The Queen's Bench is the most important of the divisional courts and has three main areas of jurisdiction:
under the magistrates courts act 1980 appeal to the queen's bench is by way of case stated on a point of law.
most important area of jurisdiction: 2 judges assess the legality/decisions of public bodies, especially of government ministers.
has oversight of all inferior courts.
has jurisdiction over matrimonial matters, including contested divorce actions, wardship, adoption and uncontested probate matters. Example: Re A (conjoined twins) 2000.
mainly exercises an equitable jurisdiction and deals with contested probate matters, trusts, mortgages, bankruptcies, company and partnership cases and taxation matters.
Advantages | Disadvantages |
|---|---|
Small Claims Court is less formal than the main County Court, with a District Judge taking an active role, setting time limits and asking questions | ADR is encouraged, but not always appropriate or enforced by judges |
Solicitor not needed in many cases, unless the claim is contested | Expensive and time-consuming cases can prevent many claims from reaching the High Court |
Simplified and single set of rules governing both the High Court and the County Court | QBD is based in London, but the Chancery division has bases around the country |
Most civil cases start at the county court.
Court is the very last option and the pre-trial procedures help fix most of the problems to avoid using court hearing.
First they explain the conduct and set out the steps the court would want people to normally take before court.
Certain claims must be started in their court:
Amount of claim | Which court |
|---|---|
Less than £10,000 or in £1000 for personal injury claims. | Small Claims Court |
Less than £100,000 or £50,000 for personal injury claims. | Must be started in the County Court |
More than £100,00 or more than £50,000 for personal injury claims. | Can be started in the county court but is more likely to be started in the High court |
Claima under £10,000 + £1000 for personal injury
Claimant encouraged to represent themselves in order to keep overall costs low
The “winner” cannot recover thee cost of the solicitor, if one is used, from the loosing party
Heard by a District Judge
Minior civil cases
Informal setting
No strict rules of evidence, no cross-examination
Use of lawyers is not encouraged + witness are dicouraged or not allowed
Claims of no more than £25,000
Strict time tabe for pre-tiral matters, to ensure no wasting time
Aim for claim to be heald within 30 weeks of being received by court
Heard by a Circuit Judge
High value claims
More formal and heald in an open court
Lawyer is allowed and only one expert witness allowed
Judge directed by civil procedure rules to manage each claim
This is an attmept to reduce time wasting by council an subsequent running up cost
Claims of more than £25,000
Heard by a more senior judge (circuit or hogh court judge)
Most formal
Judge has a more “hands-on” apporach
They manage tometab;es
Gathering evidence
Control of expert witnesses
Use of alternate dispute resolution is encouraged by the judge where possible
Trial dates are set and strictly enforced which generally a 72 weeks
If either party in a case is dissatisfied with the decision made by the judge at first instance, then it is possible to appeal.
Appeal’s against the district judge’s decision can only be made if there was a serious irregularity in the proceedings or the district judge made a mistake of law. The application for appeal will be referred to a Circuit Judge who may either dismiss the appeal or order that it be listed for hearing. The appeal itself will be heard by a Circuit Judge.
From the High Court the appeal usually goes to the Court of Appeal (Civil Division)
On a point of law
Leave to appeal required
Possible leapfrog appeal directly to the Supreme Court
Can only leapfrog if statutory interpretation or precedent is involved or the Court of Appeal is bound by one of its own previous decisions
Permission to leapfrog required from the Supreme Court
Both employment tribunals and ADR are ways of resolving disputes without going to court.
Employment tribunals involve disputes between employees (or potential employees) and employers.
DR generally involves disputes between consumers and traders. The most common types of ADR are mediation and arbitration.
Negotiation is the most basic form of ADR, where an individual attempts to resolve the issue directly, privately and possibly face to face with the other party. However there is a chance that their problem might not have been resolved. For example, this would be suitable for:
noise caused by neighbours
returning faulty goods to a shop
receiving poor service from a tradesperson.
Negotiation is not binding, involves cooperation informal and the procedure is controlled by the parties disputing.
Advantages | Disadvantages |
|---|---|
It can be straightforward contract between parties. | One of the parties may be hostile towards the other |
Low to no cost - no need for lawyers | Either party may believe they are in the right and not prepared to settle |
The parties themselves are in control | If the dispute is not settled, the case may go to court, which will involve costs and the court may insist the parties go back to negotiation before trial. |
Mediation is slightly more formal than negotiation, but still a relatively informal method of dispute resolution. This is not binding, the third party has no say and acts like a facilitator and goes back and forth from party to party giving each other views on the problem.
A neutral third-party mediator attempts to resolve the issue (possibly face to face) with both parties, without giving their opinion. For example, this would be suitable for:
businesses negotiating or renegotiating contracts
marriage guidance to avoid separation or divorce.
Advantages | Disadvantages |
|---|---|
Cheaper than court | Will only work if both parties agree and cooperate |
Parties in control of the process | Many decisions may not ultimately be binding on both parties |
Based on common sense rather than decisive legal rules | May be unable to reach agreement. |
Conciliation is a form of mediation, where a third party tries to suggest a compromise between the disputing parties (has a say). For example, this would be suitable for:
disputed access to goods and services by disabled people
cases of alleged discrimination
some employment disputes
some family law matters involving the Family Division of the High Court.
Advantages | Disadvantages |
|---|---|
Cheaper than court | Many decisions may not ultimately be binding on both parties |
Parties have some control in choosing the conciliator and process | No decision is guaranteed at the end |
The process is flexible with a time and date set to suit the parties | The concilliatr may force a resolution on one or both parties |
For this ADR, a third party decides the case when the disputing parties refer the case to it. The arbitrator is impartial – they don’t take sides but hear all of the arguments and make a decision based on the evidence. This is a formal procedure similar to a court procedure with a witness and evidence.
Scott v Avery clause - if anything goes wrong arbritation is used first
Before arbitration is used, both sides must agree that the arbitrator’s decision will be binding. For example, this would be suitable for:
package-holiday contracts
disputes between employees and employers using ACAS, an organisation that gives employers and employees free, impartial advice on workplace rules, rights and practice.
Advantages | Disadvantages |
|---|---|
It is voluntary | More expensive than other formas of ADR |
This decition is bnding and can be enforced | Requires confrontation with the other party |
The arbitrator will be qualified and experienced | Process can be complicated anf formal |
Employment tribunals are specialist employment ‘courts’ that deal with such issues outside the civil courts system.
Role | Responsible for hearing claims from citizens who think someone such as an employer, a potential employer or a trade union has treated them unlawfully. Employment tribunals (ET) were established to deal with specific areas of employment rights as part of a historic overhaul of social and welfare legislation. |
|---|---|
Jurisdiction | Includes:unfair dismissal discrimination unfair deductions from pay. |
Procedure | When a claim arises and cannot be sorted out between the individual and their employer throughinformal discussions, then:Claimants generally use an ET1 form to make a claim via the gov.uk website to the Tribunal Office, if they feel they have been treated unfairly.A respondent has 28 days after receiving the ET1 to complete a response form known as an ET3.If the claim is accepted by the Tribunal Office, then the employer is contacted.If the employer does not respond, then judgement is made in favour of the claimant.If the employer disputes the claim, then the case will go to ‘case management’ and a hearing is held to resolve the dispute.Hearings are heard by a panel of three: an employment judge, a representative of an employer’s organisation and a representative of an employee’s organisation.Following the hearing a judgement is issued. |
Advantages | Disadvantages |
|---|---|
Cheaper than court | Huge volume of cases → delay |
Quicker than court | Public funding is not available for tribunals so one side may be at a disadvantage if the other parties can afford a lawyer to represent them making the process unfair |
Informal and provate | Appeals are limited to issues of law. |
Criminal Law
Criminal Formula – Actus Reus + Mens Rea - defence = POTENTIAL criminal liability
Scenarios:
Murder
Voluntary Manslaughter
Involuntary Manslaughter
Non-Fatal Offence Against a Person
Attempts
General Defences; consent, self-defence, duress, intoxication
Essays:
NFOAP
Consent
Self-defence
Intoxication
Key aims of Criminal law:
Detter - put off people from doing crimes
Retribution/ Punishment - punish the right people
Protection - protect people
Justice
Balance
Intro
The legal definition of murder is 'the unlawful killing of a human being in the King’s peace, with malice aforethought'
The actus reus of murder consists of the unlawful killing of a human being in the King’s peace. The mens rea of murder is malice aforethought, which has been interpreted by the courts as meaning intention to kill or intention to cause GBH.
Act or Omission
The defendant’s (D) physical acts or omissions required for liability. The general rule regarding omissions is that there is no liability for a failure to act.
Gibbons and proctor - she died of starvation as the result of a long course of cruelty and neglect at the hands of both appellants. Gibbons was in regular employment and the latter was earning a decent amount of money. It was his duty to provide the money; it was hers to provide food. However, the child was not hers, but she was living with Gibbons
Causes
Factual causation -
But for test (but for the actions of the defendant, would the result have occurred?)
White - The defendant put poison in his mother’s drink intending to kill her (V). However, V died due to an unrelated heart condition and not because of the poison.
Legal causation - Was the defendant the operating and substantial cause?
Medical treatment - will not break the chain of causation if the D is still the operating and substantial cause. Only if the medical treatment is “palpably wrong”.
Smith - stabbed the victim during a fight at their barracks and pierced his lung. Another soldier tried to carry him to the medical station but dropped him twice on the way. He received treatment that was not only inappropriate but positively harmful and he died a couple of hours later.
Jordan - the defendant stabbed the victim (V). However, V’s medical treatment at the hospital was poor. Eventually, V died as a result of the poor treatment, even though the wound was no longer life-threatening.
Victims Response - There are three types of acts of the victim that we will consider: ‘fright and flight’ cases, refusing medical treatment and suicide. There must be some proportionality between the gravity of the threat and the action of the deceased in seeking to escape from it. (Reasonable Response)
Williams - The appellants gave a lift to a hitchhiker and tried to rob the hitchhiker at knifepoint. The victim jumped from the moving car and died of head injuries. (Daftness Test)
Act of a third party - The act of a third party will generally break the chain of causation unless the action was foreseeable. There may only be a break in the chain of causation if the actions of the third party were “free, deliberate and informed”. Only break the chain if it completely overwhelmed the actions of the defendant
Pagett - Using his pregnant girlfriend as a shield, Pagett shot at the police, who were attempting to arrest him for various serious offences.
Thin skull - never breaks the chain - pre-existing injury. You take your victim as you find them which include physical conditions which may make their injuries worse, for example an allergy and their beliefs
Blaue - The defendant stabbed an 18-year-old girl four times when she refused to have sexual intercourse with him. She was a practising Jehovah's witness and refused to have a blood transfusion which would have saved her life. - refusal of medical treatment
Unlawful
Death is only lawful if War, Necessity and Self Defence. The test to be applied for self-defence is that a person may use such force as is reasonable in the circumstances as he honestly believes them to be in the defence of himself or another.
Beckford - The appellant said that on arriving at the house, he saw a man run from the back door with an object which appeared to be a firearm. As the police followed him, the appellant stated that Barnes fired at the police, in response to this he fired back, shooting and killing Barnes. In fact no gun was ever found.
Death
A person is classed as legal dead if they are ‘brain stem dead.’
Malcherek - the defendant had stabbed his wife. The victim had been taken to hospital and placed on a life support machine. The doctors later switched off the life support machines as the victim was not showing any activity in their brain stem.
Steel - Defendant attacked a girl and as a result she suffered serious head injuries. She was taken to hospital and had to be put on a life support machine. After a short time, the doctor’s came to the conclusion that there wasn’t any activity in her brain stem and classed her as ‘brain dead’, and turned off her life support machine.
Human Being
You are classed as a human being if you are wholly independent from the mother and have taken your first independent breath.
AG Ref No3 - The defendant stabbed his pregnant girlfriend in the face, abdomen and back when she was 22-24 weeks pregnant. 17 days after the incident the woman went into premature labour and gave birth to a live baby. The baby died 121 days later due to the premature birth.
Direct intent to cause death or serious injury
there must be a direct intent to cause death of serious injury.
Vickers - Murder is, of course, killing with malice aforethought, but ' malice 'aforethought' is a term of art. It has always been defined in English law as either an express intention to kill, as could be inferred when a person, having uttered threats against another, produced a lethal weapon and used it on a victim, or implied where, by a voluntary act, the accused intended to cause grievous bodily harm to the victim, and the victim died as the result."
Death or serious injury was a virtual certainty
2 tests - Was death or serious injury a virtual certainty? Did the Defendant foresee it as such
Nedrick - The appellant held a grudge against Viola Foreshaw. He went to her house in the middle of the night, poured paraffin through her letter box and set light to it. A child died in the fire. “he knew that it was highly probable that the act would result in serious bodily injury to somebody inside the house, even though he did not desire it - desire to bring that result about - he is guilty or murder.”
Woollin - The appellant threw his 3 month old baby son on to a hard surface. The baby suffered a fractured skull and died. He must have realised and appreciated when he threw that child that there was a substantial risk that he would cause serious injury to it, then it would be open to you to find that he intended to cause injury to the child and you should convict him of murder.
Ellie and Liam are having a disagreement, Liam gets angry at Ellie and stabs her in the stomach and chest repeatedly. Ellie is pregnant at the time. Ellie is rushed to hospital, and in the ambulance a piece of medical equipment falls on her head, Ellie dies on the way to the hospital and is pronounced brain stem dead, and so does her unborn child.
Advise Liam on his potential liability for murder (20)
Act or omission
For murder, the law states there must be an act or omission. An omission is demonstrated in the case of Gibbons and Proctor, the defendants neglected their child and he died of starvation, they were found guilty of murder. In this scenario, Liam stabbed Ellie, this is an act, Liam satisfies this element.
Cause (factual)
To satisfy this element the defendant must be the factual cause, but for their act or omission the victim would not have died. In the case of White, but for the defendants action of poisoning the milk the victim may have had a heart attack anyway, White was not guilty of murder, he was not the factual cause. In this scenario, but for Liam's act of stabbing Ellie, it’s likely she would not have died. Liam is arguably the factual cause.
Cause (legal)
Legal causations looks at possible breaks in the chain of causation, did anything intervene that will remove criminal liability for murder from the defendant. Points to consider include medical treatment, actions of the victim, a 3rd party and a thin skull. In the case of Smith where the medical professionals dropped the victim whilst attempting to save their life, it was found that the defendant was still the substantial cause of death, the actions of the Medical Professionals did not contribute as much to death as the defendants actions. In this scenario the case would likely take the same approach, Liam could seek to blame the medical equipment falling on Ellie’s head for Ellie’s death. However it’s likely Liam repeatedly stabbing Ellie was the substantial cause, the medical equipment falling on her head would not have contributed to the death and would not break the chain of causation. Liam is arguably the legal cause.
Unlawful act
Murder is only lawful for war, necessity and self defence. This is demonstrated in the case of Beckford, he acted in self defence as he believed he was threatened by a gun. He was found not guilty or murder. In this scenario, war, necessity and self defence aren’t relevant. Liam committed an unlawful act.
Death
To be guilty of murder, the law states you must be brain stem dead. This was demonstrated in the case of Malcharek where the victims family tried to argue that the hospital turning of the victims life support was murder, they where not guilty as the victim was already brain stem dead. In this scenario, Ellie is brain stem dead.
Human being
The law states to be guilty of murder, the victim must be wholly independent from the womb and taken their first breath. This was demonstrated in AG ref NO3, defendant stabbed pregnant wife and the baby died, he was not guilty or murder as the victim was not wholly independent from the womb. Similarly, in this scenario, Liam would not be guilty or murder for the unborn baby as they were not wholly independent from the womb, but Ellie was so he can be found guilty of murder for her.
Direct intent
The law states the defendant must have direct intent to cause death or GBH, as demonstrated in the case of Vickers. The defendant punched an elderly woman when robbing her home, he was found guilty or murder as he had the direct intent to cause GBH. In this scenario it’s arguable Liam had the direct intent to cause at least GBH to Ellie. This is because his actions were repeated.
Indirect intent
If there was no direct intent to cause GBH the jury may consider whether death was a virtual certainty. In the case of Nedrick, he set fire to a house and a young boy died in the fire, the jury acquitted him of murder as the boys death was not a virtual certainty. In this scenario If it is not seen as direct it would arguably be at least indirect intent. This is because death or serious injury was a virtual certainty.
In conclusion, Liam would more than likely be found guilty of Murder as he appears to satisfy all necessary elements of conviction.
Mens rea was affected because the mind was affected to do the act.
Reduces charge of murder to manslaughter if the defence is successful.
Voluntary manslaughter is a partial defence.
These defences are only available for Murder - hence special defences to murder.
Loss of Control
This represents a change from the law of provocation which required the loss of control to be sudden and temporary now it does not need to be temporary but the provocation can be a “slow burn” reaction, rather than the immediate loss of self-control.
This represents the 3 different types of requirements needed to prove provocation:. There must be evidence of provocation, The defendant must have been provoked to lose their self-control and The provocation must be such as to make a reasonable man do as the defendant did.
R v Ahluwahlia - Ahluwahlia, suffered abuse and violence from her husband for years. After one violent evening, she went to bed thinking about her husband’s behaviour and could not sleep. She finally went downstairs, poured petrol into a bucket, lit a candle, went to her husband’s bedroom and set it on fire. Her husband died from his injuries.
Section 55 - Qualifying trigger, that is extremely grave in character and provides a justifiable sense of being wronged.
Section 55 of the Coroners and Justice Act 2009 identifies three qualifying triggers:
S55(3): D’s fear of serious violence from V against D or another identified person (e.g. family member) [subjective test];
The defendant does not have a fear of violence by the victim, fear of violence on another person who must be identified can amount to a qualifying trigger.
R v Ward - the victim attacked the defendant's brother. He pleaded for loss of control which he succeeded in
S55(4): thing(s) said and/or done
The jury decides whether a reasonable person would lose control
S55(4): Must be extremely grave character and also caused D to have a justifiable sense of being seriously wronged [objective test]
OLD LAW - R v Doughty - His wife had had a caesarean and was told to take things easy so the appellant was looking after his wife and the baby in addition to carrying out all the general household matters. One night the baby kept crying. The appellant used his best efforts to keep the baby quiet to no avail. He then covered the baby's mouth to dampen the sound. He then stated that due to his excessive tiredness and the constant noise of the baby he lost his control and pressed down harder than he meant to and ended up suffocating his son, killing him.
Characteristics of the defendant.
S.54 Coroners and Justice Act 2009 - A person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.’
DDP v Camplin - A 15-year-old boy, killed a middle-aged man by hitting him over the head with a chapati pan. he defendant raised the defence of provocation stating that the deceased had raped him and then laughed at him at which point he lost his control and hit him.
Exclusions to the defence
S.55 Coroners and Justice Act 2009 - Defence cannot be used if Self Induced, Sexual Infidelity or Revenge.
Sexual infidelity - Sexual infidelity can not be relied upon on its own as a qualifying trigger, but its existence does not prevent reliance on the defence where there exist other qualifying triggers.
R v Clinton - The appellant and his wife both suffered from depression. He and his wife agreed to a trial separation for four weeks as she needed time out. She left him with the children and moved into her parent’s home. The appellant did not cope well with this and became obsessional and had been looking at suicide websites. Two weeks later she revealed to him that she was having an affair. He asked for her to come to the matrimonial home in order to tell the children together that their marriage was over. She agreed to meet. However he had arranged for the children to be elsewhere at the time she was due to come and he was heavily intoxicated. At the meeting he killed her by repeatedly beating her on the head with a wooden baton and strangled her with a belt. He then took photos of her naked body in various poses and texted them to her lover.
Revenge -
Self-induced - A defendant will still be allowed the defence if they induced the provocation
R v Johnson - the appellant was at a night club. A woman called him a 'white ni**er'. The appellant was white but had taken to adopting a West Indian accent. He took exception to the comments and made violent threats to her. A male friend of hers intervened and poured a glass of beer over the appellant. A fight developed between the two men and the appellant stabbed the man resulting in his death. The appellant argued he was acting in self-defence as he believed he was about to be glassed. He also denied losing any self-control.
The Homicide Act originally governed diminished responsibility
Abnormality of mental functioning caused by recognised medical condition
There must be an abnormality of mental functioning caused by a recognised medical illness.
R v Kemp - The defendant assaulted his wife with a hammer. He had no previous history of violence and no apparent motive. He suffered from hardening of the arteries which lead to a congestion of blood in the brain. This caused a temporary lack of consciousness so he was not conscious that he picked up the hammer or that he was striking his wife with it.
Substantial Impairment
One of the 3 things that must be substantially impaired is:
To understand the nature of his conduct - where he is in such a state where he does not know what he is doing.
To form a rational judgement - those suffering from paranoia, schizophrenia or battered wife syndrome may not be able to form all relevant circumstances before or after the killing.
To exercise self-control
R v Lloyd - it was held that substantially does not mean total or trivial and minimal. It is something in between and it is for the jury to decide if the defendant’s mental responsibility is impaired and if so whether it is substantially impaired.
R v Campbell - the defendant had previously suffered frontal lobe damage and this was considered to be a substantial impairment. This was considered to be an impairment that would impact his behaviour and thought process, which would be a successful defence for murder.
Causal Link between illness and action
There must be a causal link between the illness and the damage that was caused
Blackman - PTSD is what caused him to kill the captured man.
R v Joyce Kay - In this case the jury found there was a causal link between the defendant’s actions of killing and his paranoid schizophrenia.
Intoxication
Intoxication is only applicable when there is a defence of DR if the intoxication is due to an illness itself such as alcohol dependence syndrome
If a person is intoxicated but also has another illness. It must be proved it was the illness that made them act if the defence is to be successful
Dietschmann - the defendant felt that the victim was disrespecting the memory of the defendant’s aunt who had just died. He killed the victim by readily kicking him and stamping on him, the defendant had drunk about a third of a bottle of whisky and two and a half pints of cider before killing the victim.
Ella suffers from a history of domestic violence and has been abused by previous partners, because of this she suffers from severe PTSD and depression. One evening after a night out with friends she came home drunk to find her current partner Harry sleeping with another woman. Harry jumps frantically and tries to grab Ellas arm to remove her from the room, Ella retaliates and hits Harry over the head with a cast iron doorstop. Harry died at the scene of a serious bleed to the brain.
Intro
Diminished responsibility is a defence to murder under s52 of the Coroners and Justice act 2009. There are several factors to satisfy a successful defence of diminished responsibility.
Abnormality of mental function
The law states for this route to defence there must be an abnormality of mental functioning caused by a medically recognised condition or disorder, this must be approved by 2 medical professionals. The case of RvBryne demonstrates this, the defendant was sexually perverted, this condition was an actual medical disorder and was successfully used as his defence to murder. In this scenario Ella has both PTSD and depression, both are widely recognised mental health conditions,due to these conditions Ella would likely satisfy this element.
Causing a substantial impairment
The law states that the abnormality must cause a substantial impairment to the way in which the defendant acts, thinks, processes situations and behaves. This is demonstrated in the case of Rv Campbell where the defendant's frontal lobe damage was seen as something that would affect his thought process and behaviour and was a successful defence to murder. In this scenario, Ellas PTSD is something that has the possibility to affect reactions, behaviours and thought processes and her depression may also affect the way she thinks. Both of these mental health conditions are likely to affect her behaviour, actions and thought processes in this situation, Ella likely satisfies this element.
Causal link between illness and action
The law states that there must be a causal link between the illness and the way the defendant acted in the situation, there must be some correlation and relevance between the two. The case of R v Joyce kay shows how the jury found a causal link between the defendant's actions and his schizophrenia. In this scenario, Millie's PTSD from previous domestically violent relationships and what she did may be found as having a causal link. Millie retaliated to Harry reaching out to grab her, her PTSD from previous relationships may have made her fear violence and lash out at Harry in fear and self defence. Her depression may have caused her to hit him due to her previous bad relationships with men, she may have grown tired of constant abuse and hurt and lashed out as a final resort. Ella will likely satisfy this element.
Role of intoxication and the defence
The law states that this is only applicable as a defence of diminished responsibility if the intoxication is due to an illness such as alcohol dependence syndrome. If the defendant was intoxicated voluntarily and has other mental abnormalities, the defence must prove it was the mental abnormalities not the alcohol that caused the behaviour. The case of RvDowds establishes that voluntary acute intoxication cannot be a defence of diminished responsibility as it is self inflicted. In this scenario Ella could not use intoxication as a defence, she was not intoxicated due to alcohol dependence syndrome, she was intoxicated due to voluntary acute intoxication. Her defence would have to prove that the intoxication wasn't the cause of her actions and that it was the PTSD and depression.
Conclusion
In conclusion, it's likely that Ella will satisfy all elements of diminished responsibility if her case was to be heard in court. It's likely the jury would find her previous violent relationships, and the PTSD and depression she has because of them means she is not fully responsible for the way she retaliated to Harry, it was her mental health issues that played a great cause in this. Ella is likely to be found guilty of Manslaughter by diminished responsibility.
Unlawful Act
The act must be unlawful in a criminal scene. Must be and act not an omission.
Franklin - OLD LAW - a civil wrong could not give rise to unlawful act manslaughter
Lamb - the defendant possessed a revolver. He was joking around with it containing 2 bullets in the barrel and joked around with his friend who did not fear dying because he and the defendant thought that the bullets would not go off when he pulled the trigger. However when the defendant pulled the trigger and killed him. no crime as not scared/no criminal act no manslaughter
Lowe 1973 - The appellant's child died from neglect. The trial judge directed the jury that if they found him guilty of the offence of neglect they must also find him guilty of manslaughter on the grounds that neglect was an unlawful act. The jury convicted him of both neglect and manslaughter.
Dangerous
the act must be dangerous. This is an objective test which was stated in Church - “a sober and reasonable person would realise risk of some harm”
Cause
Factual causation -
But for test (but for the actions of the defendant, would the result have occurred?)
White - The defendant put poison in his mother’s drink intending to kill her (V). However, V died due to an unrelated heart condition and not because of the poison.
Legal causation - Was the defendant the operating and substantial cause?
Medical treatment - will not break the chain of causation if the D is still the operating and substantial cause. Only if the medical treatment is “palpably wrong”.
Smith - stabbed the victim during a fight at their barracks and pierced his lung. Another soldier tried to carry him to the medical station but dropped him twice on the way. He received treatment that was not only inappropriate but positively harmful and he died a couple of hours later.
Jordan - the defendant stabbed the victim (V). However, V’s medical treatment at the hospital was poor. Eventually, V died as a result of the poor treatment, even though the wound was no longer life-threatening.
Victims Response - There are three types of acts of the victim that we will consider: ‘fright and flight’ cases, refusing medical treatment and suicide. There must be some proportionality between the gravity of the threat and the action of the deceased in seeking to escape from it. (Reasonable Response)
Williams - The appellants gave a lift to a hitchhiker and tried to rob the hitchhiker at knifepoint. The victim jumped from the moving car and died of head injuries. (Daftness Test)
Act of a third party - The act of a third party will generally break the chain of causation unless the action was foreseeable. there may only be a break in the chain of causation if the actions of the third party were “free, deliberate and informed”. Only break the chain if it completely overwhelmed the actions of the defendant
Pagett - Using his pregnant girlfriend as a shield, Pagett shot at the police, who were attempting to arrest him for various serious offences.
Thin skull - never breaks the chain - pre-existing injury. You take your victim as you find them which include physical conditions which may make their injuries worse, for example an allergy and their beliefs
Blaue - The defendant stabbed an 18-year-old girl four times when she refused to have sexual intercourse with him. She was a practising Jehovah's witness and refused to have a blood transfusion which would have saved her life. - refusal of medical treatment
Mens Rea for initial act
Law states that there needs to be mens rea for the initial act not the death itself
Newbury - the defendant’s had the mens rea/intent for the initial act, they were found guilty for being engaged in a criminal act initially, even though death was not intended.
Introduction
Unlawful act manslaughter is a type of involuntary manslaughter where the defendant can be liable for a death that was caused unintentionally. In this scenario, the defendant(s) could be the BFG or Mrs Smith, and the victim Agatha as she suffered from the consequences of the unlawful act.
Unlawful act/crime
Firstly, the act that caused the death must be an act, not an omission. An omission is not enough to hold someone liable for unlawful act manslaughter. This was demonstrated in Lowe, as the defendant could not be found guilty due to not wilfully neglecting his baby. His lack of action found him not liable. In this scenario, the BFG is taking part in an unlawful act/administering dreams (drugs) so his act could make him liable for the death.
Dangerous
To establish whether an act is dangerous, we must question whether a “sober and reasonable person” would undergo the same course of action as the defendant. If yes, the defendant cannot be guilty. This was established in the case of Church. In this scenario, we can assume that a sober and reasonable person would not undergo the same actions as the BFG as it was a known criminal act he was committing.
Causation
Factual causation states that “but for the defendant’s actions, would the consequences have concurred?”. This test was used in White, where it was determined the defendant’s actions did not cause the death as the victim would have died anyway. In this scenario, the drugs/dreams administered clearly caused the death of Agatha. However, we must question whether the BFG is the “operating and substantial cause”of the death, a test established in the case of Smith. In this scenario, Mrs. Smith’s failure to close Agatha’s window could make her liable for Agatha’s death. This is due to the fact that Mrs. Smith had knowledge of the doings of the BFG and failed to act accordingly against them. This could break the chain of causation for the BFG as he would not have been able to administer the dreams if her window had been shut.
Mens Rea for initial act
The law states that the defendant must have the mens rea for the initial act to be held liable. This was demonstrated in the case of Newbury, where because the defendant’s had the mens rea/intent for the initial act, they were found guilty for being engaged in a criminal act initially, even though death was not intended. In this scenario, it is clear by the acknowledgement of all parents in the area that the BFG administers dreams, he intended to engage in the dream administration. Mrs. Smith’s failure to close Agatha’s window does not appear to be a consistent act, meaning it could be unfair to assume that she had mens rea for the criminal act.
Conclusion
To conclude, it is likely that the BFG will be held accountable for Agatha’s death as he fulfils the circumstance of having the mens rea to complete the criminal act that caused Agatha’s death. Whereas Mrs. Smith appears to have made an error in judgement that, whilst it certainly played a part in Agatha’s death, was not the cause.
Duty of Care, Breach of Duty that Causes death
Duty of care - Donoghue you owe a DOC to “persons so closely & directly affected by .. my acts or omissions”.
Adomako - doctors failed to check the breathing tube.
Breach of duty - ‘reasonable man’ test (would a reasonable man have acted in the same way?)
wacker case - lorry full of immigrants, forgot to open vents, immigrants died of suffocation.
Cause Death? -
Factual causation -
But for test (but for the actions of the defendant, would the result have occurred?)
White - The defendant put poison in his mother’s drink intending to kill her (V). However, V died due to an unrelated heart condition and not because of the poison.
Legal causation - Was the defendant the operating and substantial cause?
Medical treatment - will not break the chain of causation if the D is still the operating and substantial cause. Only if the medical treatment is “palpably wrong”.
Smith - stabbed the victim during a fight at their barracks and pierced his lung. Another soldier tried to carry him to the medical station but dropped him twice on the way. He received treatment that was not only inappropriate but positively harmful and he died a couple of hours later.
Jordan - the defendant stabbed the victim (V). However, V’s medical treatment at the hospital was poor. Eventually, V died as a result of the poor treatment, even though the wound was no longer life-threatening.
Victims Response - There are three types of acts of the victim that we will consider: ‘fright and flight’ cases, refusing medical treatment and suicide. There must be some proportionality between the gravity of the threat and the action of the deceased in seeking to escape from it. (Reasonable Response)
Williams - The appellants gave a lift to a hitchhiker and tried to rob the hitchhiker at knifepoint. The victim jumped from the moving car and died of head injuries. (Daftness Test)
Act of a third party - The act of a third party will generally break the chain of causation unless the action was foreseeable. there may only be a break in the chain of causation if the actions of the third party were “free, deliberate and informed”. Only break the chain if it completely overwhelmed the actions of the defendant
Pagett - Using his pregnant girlfriend as a shield, Pagett shot at the police, who were attempting to arrest him for various serious offences.
Thin skull - never breaks the chain - pre-existing injury. You take your victim as you find them which include physical conditions which may make their injuries worse, for example an allergy and their beliefs
Blaue - The defendant stabbed an 18-year-old girl four times when she refused to have sexual intercourse with him. She was a practising Jehovah's witness and refused to have a blood transfusion which would have saved her life. - refusal of medical treatment
Serious and Obvious Risk of Death
There has to be a serious and obvious risk of death.
Misra - 2 doctors let patients develop an infection in the wound which was undiagnosed and therefore untreated despite obvious symptoms.
Foreseeable?
but for his actions, she might've survived
Broughton - he gave class a-drugs to his girlfriend after which she died
Gross
Jury decide whether the action was considered Gross
Bateman - “where the negligence of D goes beyond a mere matter of compensation between subjects and shows such disregard for life and the safety of others that it amounts to a crime against the state” - beyond compensation. nothing can explain or compensate for it as negligence was so bad.
Adomako - did the defendant show no criminal disregard?
Intro -
2 statutes; Criminal Justice Act 1988, Offences Against the Person Act 1861 (focus on section 47, 20 +18)
Assault - AR and MR
Causing an individual to apprehend immediate unwanted force intentionally or recklessly.
AR - causing immediate apprehension
Smith - The defendant stared through a window of a private residence. This frightened the owner of the house. It is not necessary to show there must be an immediate threat, just that a threat could be carried out.
MR - intent/ recklessness behind the act
Tuberville - The defendant put his hand on his sword and stated, 'if it were not assize-time, I would not take such language from you'. Assize-time is when the judges were in the town for court sessions. If there's an “if” word can negate the result.
Battery- AR and MR
A direct application of unwanted force intentionally or recklessly.
AR - direct application of unwanted force to the defendant.
DPP v K - A 15 year old school boy took some acid from a science lesson. He placed it into a hot air hand dryer in the boys' toilets. Another pupil came into the toilet and used the hand drier. The nozzle was pointing upwards and acid was squirted into his face causing permanent scars. Force can be applied indirectly e.g. through an object
MR - intent/ recklessness behind the act
Thomas - The appellant was convicted of indecent assault of several minors. One of the convictions was for rubbing the hem of a 12-year-old’s skirt before she pushed him away. Appealing his conviction, the appellant argued that what he did was merely assault, not indecent assault. The slightest touch, even touching clothing, can amount to battery - Any unwanted touching with intent can be battery
47- AR and MR
assault occasioning actual bodily harm.
AR - definition of AR is the level of injury sustained
Miller - he raped his soon-to-be ex-wife without her consent on 3 occasions causing her to develop a hysterical and nervous condition. ABH was defined as “any hurt or injury calculated to interfere with the health or comfort of the victim »
MR - does not specifically contain Mens Rea but has been developed to have the same men's rea for either an assault or a battery.
Savage - Savage intentionally threw beer at her boyfriend’s ex resulting in the victim's wrist being cut. decided that the men's rea for section 47 would be the same as for an assault or battery, meaning the defendant must have acted intentionally or recklessly.
20+ 18 - AR and MR
S.20 - the act of maliciously inflicting a wound or grievous bodily harm, where maliciously means intentionally or recklessly.
S.18 - the defendant is Intentionally causing a wound or GBH or causing a wound or GBH whilst resisting arrest.
AR - both section 20 and section 18 are the same, which is where the defendant causes a wound or grievous bodily harm.
S.20 - Eisenhower - The defendant shot multiple rounds from an air gun at a group of people, of which one airgun pellet hit the victim in the face, which ruptured internal blood vessels near the victim’s eye, causing bruising and swelling. The definition of a wound is a cut or break in two or more layers of the outer skin as the pellet hits the victim near the eye and ruptures an internal blood vessel.
S.18 - Bollom - The defendant injured his partner's 17-month-old daughter with various bruises and abrasions. GBH is considered a really serious harm which can depend on the characteristics of the victim.
MR - different for both section 20 and section 18, as in section 20 it measures whether the act was done intentionally or recklessly and section 18 has to be intention only.
S.20 - Dica - The defendant was diagnosed as being HIV positive and had unprotected sexual intercourse with two women without them knowing. taking a risk and being reckless in passing on HIV to others
S18 - Rowe - he deliberately infected a total of 10 men with HIV during sexual encounters and proceeded to send texts notifying the victims of HIV. Clear the defendant had intention behind the act
Junaid and Oleg are first and second in a queue outside Electrostore to buy a television in the sale. When the doors open Oleg pushes Junaid out of the way. Junaid loses his balance, falls over and cuts his arm. Although he is bleeding, Junaid chases Oleg shouting “I’ll get you – that television is mine!” Junaid catches Oleg and they start to fight. Oleg punches Junaid and breaks his nose. Junaid grabs Oleg and pushes him so hard that Oleg’s ankle is broken when he falls into a display of televisions. The shop manager, Clive, runs over to help. Junaid thinks Clive is going to attack him and hits Clive in the stomach which causes bruising.
Discuss the liability of Junaid and Oleg for any non-fatal offences.
Push | Shout | Nose | Ankle | Bruising | |
|---|---|---|---|---|---|
Assault | X | ||||
Battery | X | X | X | X | |
47 | X | X | X | ? | |
20 | X | ? | |||
18 | ? | ? |
Introduction
The 2 statutes that govern non-fatal offences are the Criminal Justice Act 1988 and the Offences Against the Person Act 1861 which focuses on sections 47, 20 and 18. In this case, the defendants are Junaid and Oleg and the victims are Juniad, Oleg and Clive.
Assault
Assault can be defined as causing an individual to apprehend immediate unwanted force intentionally or recklessly.
Actus Reus
The actus reus is causing immediate apprehension. In the case of Smith, it showed that it is unnecessary to show there must be an immediate threat, just that a threat could be carried out as a man was standing outside of the victims' window looking in. In this case, Junaid may have caused an assault as he shouted at Oleg “ “I’ll get you – that television is mine!”.
Mens Rea
The Mens rea focuses on the fact that there is intent/ recklessness behind the act. In the case of Tuberville, it stated that if there's an “if”, words can negate the result as the defendant said that if it were not assize time he would have carried out the act. In this case, it could be argued that Junaid was at least reckless when he was shouting at Oleg.
Battery
Battery can be defined as a direct application of unwanted force intentionally or recklessly.
AR
The actus reus focuses on the direct application of unwanted force to the defendant. In the case of DPP v k, the defendant put acid in the hand driers so for the next person to be sprayed when they used it. This states that a force can be applied indirectly e.g. through an object. In this case, Oleg pushes Junaid out of the way which means that he directly applied unwanted force. Oleg then punches Julian in the face breaking his nose, which is also directly applying unwanted force after which Julian pouches Oleg causing his ankle to break. When Junaid kicks Clive in the stomach causing some bruising.
MR
The mens rea focuses on whether the unwanted force was applied intentionally or recklessly. In the case of Thomas, the defendant touched girls' skirts inappropriately, even though he didn't touch their skin the fact that he touched their skirts intentionally was sufficient for battery. In this case, when Oleg pushed Junaid it can be at least reckless. After, Junaid “chases” Oleg which implies there is an intent behind his actions. As they both start a fight there is an intent behind their actions. Finally as Junaid “thinks” Clive would attack him there is intent and recklessness behind his actions.
Section 47
Section 47 of the OAPA covers ‘assault occasioning actual bodily harm.’
AR
Whilst section 47 does not define what is meant by actual bodily harm (ABH), the difference between this and a battery is the level of injury sustained. In the case of Miller where the defendant raped his soon-to-be ex-wife without her consent. ABH was defined as “any hurt or injury calculated to interfere with the health or comfort of the victim”. In this case, when Junaid falls and cuts his arm depending on the severity of the wound can determine the factor. This is the same with Oleg’s broken ankle and the bruising. Junaid’s broken nose is serious enough to cause interference with his health and comfort.
MR
Section 47 does not specifically include any men's rea, but this has since developed to include the same men's rea for either an assault or a battery. In the cases of Savage and Parmenter, it was decided that the men's rea for section 47 would be the same as for an assault or battery, meaning the defendant must have acted intentionally or recklessly. In this case, when Oleg pushed Junaid it can be at least reckless as it caused him to bleed. Then they both start a fight. There is an intent behind their actions. Finally, as Junaid “thinks” clive would attack him there is intent and recklessness behind his actions
Section 20 and Section 18 of the OAPA 1861
Section 20 focuses on the act of maliciously inflicting a wound or grievous bodily harm, where maliciously means intentionally or recklessly. Whereas, Section 18 focuses on the cases in which the defendant is Intentionally causing a wound or GBH or causing a wound or GBH whilst resisting arrest.
AR
The actus reus for both section 20 and section 18 is the same, which is where the defendant causes a wound or grievous bodily harm. In the case of Eisenhower, the definition of a wound is a cut or break in two or more layers of the outer skin as the pellet hit the victim near the eye and ruptured an internal blood vessel. In the case of Bollom, GBH is considered a really serious harm which can depend on the characteristics of the victim. In this case. Oleg punched Junaid which caused a break of the skin which is a wound however it does not say how serious the wound was. While for the ankle it may be grievous bodily harm as the ankle was broken after Julian pushed him.
MR
The men's rea is different for both section 20 and section 18, as in section 20 it measures whether the act was done intentionally or recklessly, however in section 18 the mens rea has to be intention only. In the case of Rowe, it was clear that the defendant had intention behind the act and had simply taken the risk of the consequences afterwards because he was sending texts notifying the victims of HIV. However, Dica is an example of the defendant taking a risk and being reckless in passing on HIV to others. In this case, the push may be seen as a section 18 as it was reckless however it would be better to prove it in section 20 as he certainly took a risk.
In conclusion, depending on the severity of the cut and the broken ankle Junaid and Oleg would be successfully convicted of battery, assault, section 47 or section 20. He would be convicted under section 18 if the intent was found.
The order and grading of the offences by seriousness is unclear. Not clear whether grievous bodily harm and wounding are the same or different levels of seriousness.
Intro
Offences Against the Person Act 1861 - old (vocabulary) - uses words that nobody uses today - hard to understand - unclear..
Assault
Ar - Immediately becomes imminent - clarity? What is the time frame for Imminent?
Battery
Mr what is reckless what is immediate
Common assault - actual clarity - confusion with 47 what do we mean when we say the assault
47
Ar - the difference between battery and abh is the injury sustained - what level does it change from battery to abh - clarity. Phycological issues? When does it become it? It is covered but it is hard to measure.
When it was created people did not understand the mental health problems that we have today. - “bodily” not “mental” - undeveloped. HOWEVER, developed because miller - “any hurt or injury” includes mental problems.
Mr - no mens rea - unclear HOWEVER, - developed - Mens rea same as Assault or battery. HOWEVER, - unjust - max sentence is 5 years but battery and assault max sentence is 6 months.
20 + 18
S.20 - unjust - can be charged with s.20 just for a small wound/ cut.
Unjust - s47 + s20 same max sentence even though s20 is meant to be more serious than s47.
Ar - wound defined - clear + developed. AR Same for both. What is the difference in injury? Malicious - shouldn't have used it in both.
Overall - lack of clarity - sentences not varied adequately (intro)
Discuss to what extent the law relating to nfoap has been developed by the judiciary to a satisfactory level
Intro-
Non-fatal offences against the person are governed by the Offences Against the Person Act 1861 and the Criminal Justice Act 2003. Although some issues with the 1861 act have been amended in the 2003 act, there still remains some issues that haven’t been amended in the act or by the judiciary, especially within the language used.
Assault-
One of the ways the judiciary has helped develop the law to a satisfactory level in relation to assault is by relaxing the word “immediate” in the definition. The case of Smith allowed for the use of the word “immediate” to “imminent” which set a precedent for future cases. It has also been seen in Ireland when silent phone calls were classed as assault despite the victim not knowing how far away the defendant was or if the danger was immediate. This has increased justice as it allows a wider range of cases to be classed as assault and it has helped with deterrence as people may now be more aware of what they say and do. These also help to increase punishment and protection. The increase of justice can be seen in a higher proportion of successful assault cases which in turn also helps with deterrence as it shows people that they are more at risk if they are careless with their actions. However, the redefining of the word has also had a slight negative impact due to the lack of clarity that now surrounds it. The relaxing of the word “immediate” to “imminent” has left judges to interpret this their own way which has led to a lack of consistency in sentencing and could be considered unfair to both the victims and the defendants as the lack of consistency can lead to confusion. This could counteract the deterrent caused due to the fact that people may not even understand what the law is and so won’t know what they can and can’t do.
Battery-
Another way that the judiciary has helped to develop the law is through the use of the case DPP v K in which it was established that in order for something to be classed as a battery, the force does not have to be direct. This can help to increase justice, similarly to assault, by allowing more cases to be classed as battery which in turn once again helps to increase deterrence, punishment and protection. Once again, just like assault, this can be seen in the higher proportion of successful battery cases. Furthermore, the judiciary has helped to develop the law on battery even more through the case of Thomas, where it was concluded that force can be touching of any kind, such as clothing. This may help to increase justice as it will allow for more cases that don’t involve the direct touching of skin to be brought before the judiciary and it will help to deter due to the fact that people will be more careful with what they do. An increase in justice will also lead to an increase in both punishment and protection.
Section 47-
However, one way the judiciary has not developed the law to a satisfactory level is in relation to section 47.The inclusion of the word “assault” in the definition could be seen to create more confusion and less clarity which in turn could reduce justice. In the Offences Against the Person Act 1861, the definition of a section 47 offence included the word “assault”, but it was not made clear as to whether this meant the offence of assault or common assault (both assault and battery). The judiciary has not developed this which could result in lack of clarity when interpreting the definition and confusion amongst both the judiciary and the defendants and prosecution. However, the judiciary did develop the statute in relation to the lack of mens rea in the original definition. Originally, there were no words that could be considered the mens rea. However, in the case of Savage and Parmenter, the law was developed to show that the defendant only needed to have intention to harm or could foresee that some harm would result. This could lead to an increase in justice as they only had to have intention to harm or it was foreseeable that harm would occur which may allow for many more section 47 cases to be successful.
Section 20 and 18-
Another way that the judiciary has developed the law in a satisfactory way is the defining of what a wound is in relation to the definition of both section 20 and 18. In the Offences Against the Person Act 1861, it was simply stated that inflicting wound was enough for the actus reus. However, the case of Eisenhower defined a wound as the piercing or breaking of the skin. This made the law a lot clearer and decreased confusion around what a wound actually is which in turn helped to increase justice as judges understand what a wound actually is and increase punishment and protection as the right people are being prosecuted. However, one big issue within the statute that the judiciary has not developed enough is the use of the word “maliciously”, especially in relation to section 18. “Maliciously” represents “intentionally or recklessly” and was established in the case of Cunningham. However, the term “recklessly” directly contradicts the term “intent” from the definition of section 18. This can lead to a lack of clarity and increase of confusion and a decrease in justice as the successful cases will not be consistent. This further leads to a lack of punishment and protection.
Conclusion-
Overall, it appears that the judiciary has developed the law relating to non-fatal offences against the person in a fairly satisfactory way. However, a lot of issues that still remain within the law and from the statutes which have not been developed mean that the law does not appear to be completely developed in a satisfactory way.
Definition (Intro) -
Section 1 of the Criminal Attempts Act 1981 - ‘a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence’.
AR
‘person does an act that is more than merely preparatory’,
Geddes - D was discovered in the boys' toilet of a school by a member of staff. He ran off leaving behind a rucksack, which contained various items, including string, sealing tape and a knife. He was charged with attempted kidnapping. On appeal D's conviction was quashed, because of serious doubts that D had not gone beyond the merely preparatory stage. There was no contact with a potential victim either.
Tosti - Ds attempted to burgle a barn. At around midnight, they were disturbed while examining the padlock on the barn doors when they realised that they were being watched. Held acts were more than merely preparatory (guilty of attempted burglary) the action of checking the lock was more than merely proprietary.
MR
The statute states the D must have had the intent for the specific offence they were attempting. EG - intent or reckless to make unlawful contact for battery.
Murder
only intent to kill will suffice for attempted murder. "The intent becomes the principal ingredient of the crime.”
Whybrow - The defendant wired up a soap dish in his bathroom and gave his wife an electric shock. Consequently, he was charged with an attempted murder.
Theft
Only the intent to steal a specific item or “Conditional intent” - going in because there may be something worth stealing.
Easom - defendant rummaged through the victim’s bag, but didn’t steal anything as he only had the intent to steal something worth stealing.
Impossible
D has attempted an offence that cannot physically be achieved. However, this may still result in a conviction.
Shivpuri - D was a drugs courier who was arrested by the police while transporting bags of white powder believed to be heroin. It had turned out that it was actually not heroin, but vegetable matter. D was convicted of being 'knowingly concerned in dealing prohibited drugs' he really thought he was importing drugs he deserved punishment.
Reckless
If an offence has recklessness as an element then it is possible to be liable for an offence.
Khan - where it was decided that, using the purposive approach that the mens rea for attempted rape and actual rape would be the same as if not, it would be impossible to be convicted of attempted rape.
Thomas is at the beach. There are a number of surfers, and one of them, Richard, has left his surfboard while he goes to buy an ice-cream. Thomas decides to take his surfboard but as he approaches, Richard’s dog starts to bark at him, so Thomas decides to leave the surfboard where it is. Further down the beach, Thomas sees his maths teacher, Mr Smith, who always makes fun of him in class. Thomas picks up a large rock and throws it at him, but at the same time, Mr Smith bends over to tie his shoelace and the rock misses him. Thomas runs off up the beach and sits down in a deckchair. Beside him is Jill who is sunbathing and has left her handbag next to her. Thomas decides to steal her purse, but when he puts his hand in her handbag, there is nothing inside.
Intro
Under section 1 of the Criminal Attempts Act 1981, it states that an attempt is where ‘a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence’.
Actus Reus
The Actus Reus of attempt refers to where a ‘person does an act that is more than merely preparatory’, and the 2 cases that demonstrate this are that of Geddes and Tosti. In the case of Geddes, Geddes was found in the toilets of a school which he had no connection with, with a rucksack which contained a knife, rope and masking tape. However, as Geddes didn’t actually do anything with the equipment, it was seen that he was not ‘more than merely preparatory’. In the scenario, it could be seen that when Thomas picked up the large rock and threw it at Mr Smith, Thomas was more than merely preparatory as he actually threw the rock at Mr Smith. In addition to this, it is also likely to be seen that when Thomas decided to steal Jill's purse, he was also more than merely preparatory as not only did he steal the purse, he also put his hand in her bag.
Mens Rea - Theft
One type of Mens Rea for attempts is that of having the mens rea for theft, and this can be shown through the case of Easom. The case of Easom demonstrates the idea of conditional theft as the defendant rummaged through the victim’s bag, but didn’t steal anything as he only had the intent to steal something worth stealing. In the scenario, it is likely to be seen as difficult to prove whether Thomas had the mens rea for theft when he stole Jill’s purse as he didn’t actually steal anything, but similarly to the case of Easom, it would be seen that Thomas had conditional intent as when he put his hand in her handbag, ‘there is nothing inside’. It could therefore be seen that if there was something in Jill’s bag worth stealing, Thomas would have stolen it.
Mens Rea - Reckless
If an offence has recklessness as an element then it is possible to be liable for an offence. This can be demonstrated through the case of Khan, where it was decided that, using the purposive approach that the mens rea for attempted rape and actual rape would be the same as if not, it would be impossible to be convicted of attempted rape. In the scenario, it could be seen that Thomas could be charged with an attempted battery. It could be seen that the purposive approach could be used as Thomas wouldn’t be able to be charged of an attempted battery if the literal rule was used as a battery is defined as ‘a direct application of unwanted contact intentionally or recklessly’ and therefore has recklessness as an element.
Giving someone permission to do something to you (injury)
It can be a defence to common assault bey not a defence to aggravated assaults
Express or Implied
Implied - In sports there is implied consent to a risk of injury and even grievous bodily harm. unless the injury is grave and committed outside the rules of the game they will be covered by the defence.
Barnes - The appellant was an amateur footballer. He was playing a football match, went in for a tackle and seriously injured his opponent’s leg.
Collins - he was walking away from the police officer. The officer touched him and he scratched him. It was ruled in the civilians favour as he did not consent - we imply for everyday physical contact.
Express - sign/ say you consent
Valid
Consent obtained by violence, fear or intimation is not valid. “Mere submission does not amount to consent.”
Olugboja - Two girls had been offered a lift home from a disco by Mr Lawal. They accepted but instead of taking them home he drove to his home in the opposite direction. tThe girls refused to go in and started walking off He followed and picked up Jayne and drove off and raped her then picked Karen up and took them both back to his home raped her. The appellant told Jayne to take off her trousers. She was crying and compelled out of fear. Jayne did not resist, struggle or scream.
Children are considered to lack the full capacity to understand the consequences of their actions.
Burrell v Harmer - Defendant tattooed the victims, 12 and 13 year old boys and caused actual bodily harm. Victims consented to being tattooed but the court would not allow the defence of consent.
True and informed
Were you given full knowledge of what you were consenting to?
Dica - The defendant was diagnosed as being HIV positive and had unprotected sexual intercourse with two women without them knowing.
Exceptions
Sex -
Brown - Defendants participated in sadomasochistic homosexual activity and no one suffered permanent injury. Defendants argued the acts were consensual.
Wilson - Defendant branded wife’s buttocks with his initials using a hot knife and she needed medical treatment. The Court of Appeal found the branding was not an unlawful act despite the injury caused.
Emmet - The defendant and girlfriend had sex which resulted in haemorrhage to girlfriend’s eye and burns on breast.
High risk sexual activity between a man and a woman had resulted in woman suffering haemorrhages to her eyes and burns on breasts on another occasion. The Court of Appeal held consent couldn’t be a defence. Basis of this was consent cannot be a defence where harm caused is more than ‘transient and trivial'
Sport -
In sports there is implied consent to a risk of injury and even grievous bodily harm. unless the injury is grave and committed outside the rules of the game they will be covered by the defence.
Barnes - Defendant made a late tackle on a player during an amateur game leading to serious injuries.
Surgery -
Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages. HOWEVER, except in cases of emergency where the patient is unconscious and where it is necessary to operate before consent can be obtained. if unconscious best interest of the patient.
Schloendorrf - patient brought a trespass action against the hospital for injuries and unauthorised surgery amputation of several fingers.
Horseplay -
We all consent to horseplay.
Aitken - The appellants were RAF officers and as a practical joke, they had taken to setting fire to officers wearing their fire-resistant clothing. They had done this to two officers and on each occasion, the fire had been extinguished without injury. However, on the third occasion, the officer sustained serious burns.
Death -
Article 2 did not provide the right to die. The courts found the protection of vulnerable citizens was of paramount importance.
Pretty - she was paralysed by motor neurone disease. Her condition worsened which made it impossible for her to move or communicate easily even though her mental faculties remained. She wanted to be able to choose the time of her own death and would need her husband’s help. She took a case to try and ensure if he assisted in her suicide he would not be prosecuted.
Autonomy means - we can do what we want when we want to - choice
Public interest - is what is best for society. Social paternalism – decisions are made for us not by us.
We cannot consent to abh and gbh to each other
Autonomy | Public interest | |
|---|---|---|
Wilson - man and wife let them do whatever they want | Barnes - the choice to play | Collins - don't get a choice who you bump into |
Dica - they can consent to sex but need to know the details of whether they know they have a sti and keeping to themselves and not infirming they partnerIf they don't know of the risk with it | Olugboja - cant consent through fear - protect society | |
Brown - we cannot consent to abh and gbh during sex, homosexuality is bad >:( | Burell - the law says you aren't allowed to get a tattooed at that are - society | |
Schloendorrf - the courts decide what's best for a child | Tobassum - | |
Barnes - very difficult to prosecute sports people. High level to actually prove that you are a criminal | Emmett - | |
Artkin - lack of protection | ||
Petty - you cannot consent yo death |
Discuss whether the law relating to consent respects autonomy or the public interest.
Consent needs to be genuine; this means that even if a victim appears to consent it may not be sufficient. According to Burrell v Harmer age can be a factor as it affects the understanding of children 2 boys got tattooed which caused ABH. The boys consented to be tattooed but the court would not accept the defence of consent and it ruled that children are considered to lack the full capacity to understand the consequences of their actions. This makes the lawn develop to support and respect the public interest. According to Olugboja if a victim consents purely through fear it cannot be seen as consent 2 girls were kidnapped and one of the girls had to watch the other get raped and that caused her to submit to the rapist when it became her turn. It had been decided that there is a difference between real consent and just submission.
Despite genuine consent, a defendant who causes serious harm may still be liable. However, this is very inconsistent making the law unclear as consent can be given in situations where injuries are common. In the case of Atkin defendants who had caused serious harm by setting on fire, the flame-resistant clothing had their convictions quashed on appeal as it was considered horseplay and it is an exemption. This shows that there is a lack of protection as people that commit horseplay could get away with ABH and GBH and even death because it was decided in the case of brown that it is an exception.
A person cannot consent to be killed. This means that even if the patient is on a life support machine and living a worse-than-death life they cannot consent to be killed as it would be opposed by the doctors. According to Pretty, She argued that Article 2 of the European Convention on Human Rights protects the right to life and the right to choose the manner of death. However, Article 2 did not provide the right to die and the protection of vulnerable citizens was of paramount importance. This can be unfair when compared to horseplay where it is and sports when there is a high risk of death but they would still consent to it but someone may not consent to their death when they are living a horrendous life.
Conclusion
General rule - Statute
Section 1 of the Criminal Law Act 1967 - A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.
Reasonable force
Objective - The genuine belief can include delusions resulting from a psychiatric condition. If someone under attack is under stress and therefore may not be able to reason as precisely as in other circumstances this should be taken into account.
Clegg - D, a soldier stationed at a checkpoint in Northern Ireland, fired 4 shots at a stolen car approaching at speed. The 4th shot killed a passenger. D was charged with murder, D argued that he fired in self-defence.
Use of proportionate force (Householder = Dis)
Objective - “A defendant is entitled to use reasonable force to protect himself, others for whom he is responsible and his property”. Will not be regarded as reasonable only where it was “Grossly Disproportionate”
Beckford - D was part of a group of police officers on a raid, D chased V who was escaping. D shot V, D contended V was armed and fired at him, Crown contended he was unarmed and hiding
Must be necessary
Subjective - Judges if the defendant genuinely believed the force to be necessary. Honest but unreasonable mistakes are allowed.
Beckford - D was part of a group of police officers on a raid, D chased V who was escaping. D shot V, D contended V was armed and fired at him, Crown contended he was unarmed and hiding
Pre-emptive strikes
“A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a preemptive strike.”
A-G’s Ref (No 2 of 1983) - the defendant made ten petrol bombs, during the Toxteth riots after his shop was damaged and looted, “to use purely as a last resort to keep them away from my shop”. The expected attack never occurred.
You don’t have to retreat
Failure to retreat when attacked and when it is possible and safe to do so, is not conclusive evidence that a person was not acting in self defence. (Don't have to retreat and be allowed to stand your ground and fight if you want to.)
It is not necessary that the defendant demonstrates by walking away that he does not want to engage in physical violence
Bird - Defendant was at her 17th birthday party and the victim, her ex-boyfriend arrived with his new girlfriend. Defendant and victim argued and she asked him to leave. He did so but then later returned and the argument continued. The defendant threw a drink over him, he pinned her against a wall and she punched him in the face, causing the victim to lose his eye. Defendant claimed that she had forgotten that she had a glass in her hand, which had subsequently broken.
General rule - Statute
?
Reasonable force
?
Use of proportionate force (Householder = Dis)
They have the right to protect their property using force only to a certain level
The terms Reasonable and Disreprorbunate and grossly disproportionate are not defined and will need judicial interpretation when the case comes to court.
Must be necessary
?
Pre-emptive strikes
Clear - they can act to prevent force.
Sensible - don't need to wait till someone stabs you before you can defend yourself.
You don’t have to retreat
?
Discuss whether the rules relating to self defence are fair and satisfactory.
When looking at self defence there is a general rule that has to be followed and considered, this is that the “absolute defence that is based from the evidence gathered that can be applied to the crime that is committed by force.” This rule to begin with can be considered fair but at the same time due to its lack of clarity on what the type of force that has been applied, this can mean that it can lack satisfaction.
Another rule that can be applied to self defence is that of the rule of pre-emptive strikes is that “a person does not have to wait to be struck before they can protect themselves from harm.” The development that this has made in Self-defence since this rule helps to make self-defense more satisfactory in the way that the victim does not have to suffer harm before they can protect themselves from it. This rule also makes it fairer to the victim due to the further protection of not being liable of ABH/GBH if they felt threatened due to the assailant and the victims simply wanting to protect themselves from harm.
One other rule that has been developed through the courts is that the appellant does not have to retreat. This can be seen in the case of Bird when the appellant was in an argument with her ex-boyfriend and was backed against the wall. She was then punched by the ex and she retaliated at this point by punching him in the head with the glass bottle that she was holding, having forgotten that she was holding the item. This caused the victim to lose an eye but when the appellant appealed her sentence it was decided that since before she was punched the appellant had an unwillingness to fight, it would mean there was not good enough evidence for her to retreat. This rule helps it make the rule fairer in the way of self defence and have more satisfactory outcomes for the appellants who did not back down and suffer and the hands of the person that they might have ended up injuring
Conclusion
Roles 4
Roles 4
Roles 5
Judges 5
Types 5
Sex 6
Jurors: 6
The use of Juries - used in 4 courts: 6
Vetting 8
Advantages and Disadvantages 9
Appointment 10
Roles: Civil 10
3 Categories of Criminal Offences 10
Sentencing 12
Community service/ Community Penalty 12
Fines 13
Deter - General (all)/ individual (one) 13
Rehabilitation - back to public 13
Reparation 14
Aggravating 14
Mitigation 14
Appeals 14
County court 16
High court 17
Family 17
Chansory 17
Advantages and disadvantages of using civil courts 17
ADR and Employment Tribunals 19
Negotiation 19
Advantages and Disadvantages 19
Mediation 19
Advantages and Disadvantages 20
Conciliation 20
Advantages and Disadvantages 20
Arbitration 20
Advantages and Disadvantages 20
Advantages and Disadvantages 21
Murder 22
Scenario 24
Content + Cases - Loss of control 25
Content + Cases - Diminished Responsibility 27
Scenario - Diminished Responsibility 27
Content + Cases - Unlawful Act Manslaughter 28
Scenario - Unlawful Act Manslaughter 30
Content + Cases - Gross Negligence Manslaughter 30
Scenario - Gross Negligence Manslaughter 32
NFOAP 32
Scenario 33
Essay 35
Points 35
Attempts 38
Scenario 39
Consent 39
Scenario 41
Essay 41
Point 41
Self-defence 42
Scenario 43
Essay 43
Point 43
Duress 44
Scenario 44
Intoxication 44
Scenario 44
English Legal System
Please - Pro Bono
Try - Translating client discussions into legal terms.
Contacting - Client interviewing
Lawyers - Legal admin
Really - Representing cases
Fast - Finance managing
Solicitors are employed with about 150K solicitors in the uk.
They work in law firms (DLA Piper) / courts/ stations and ‘In house’.
The governing body for a solicitor is the law society
Support solicitors
Uses a disciplinary procedure if there are any complaints made about solicitors by the public
Overseas training, is coming under pressure for change and modernisation like the Bar Council
The regulations for solicests is the Solicitor Regulation Authority who deals with complaints about professional misconduct of solicitors.
Review evidence
Advocacy (prosecute and defend)
Writing document
Prepare for court
Advise clients
Negotiate settlements
Court
Appeal the law
Knowledge of law
Examining evidence
There are about 35K Barristers in the UK.
They can be employed and self-employed.
They can be found in courts and chambers.
The governing body for barristers is the Bar Council.
Oversees the training, work and discipline of barristers
A powerful, self-regulating organisation
Sets its own rules and standards and is very defensive of its members
Reluctant to change
The regulations for a barrister is the Bar Standards Board
They set the training standard
They created the Code of Conduct barristers need to follow
They will investigate and discipline any barristers who break the code of conduct.
Specialise in one area
Contact professionals on behalf of clients
Represent clients in court
Advise clients
Prepare bills for clients
Prepare legal documents and contracts
Explain legal matters to clients
Draw up wills
There are about 8K legal executives in the UK
They are employed
They can be found in law firms
The governing body and regulations for legal executives is the Chartered Institute of Legal Executives.
Training is a combination of self-study, evening courses and day release
Employer often helps with the costs of the course
There are 2 groups of judges; superior judges and inferior judges.
Inferior - Circuit Judges, District Judges and Recorders.
Superior - appointed by the Lord Chancellor’s Department - Superior judges are Justices of the Supreme Court, Lord Justices of Appeal and High Court Judges.
Hear cases of First Instance in the Courts of First Instance - Magistrates, county, crown and sometimes the High Court
Decide the law and facts
Allocate their cases to their correct track.
Hear mainly small track cases
Give the remedy to the situation
These cases are within strict time - carried out fairly in the court.
Justices of the Supreme court hear appeals from the Court of Appeal and the High Court.
Appeals on points of law of general public importance and appeals with arguable points of law.
Listen to the arguments from both sides
Decisions will become precedents.
Lord Justices of Appeal hear appeals from the High Court, County Court and certain Tribunals.
Can hear cases in lower court
Hear appeals against the decision made by the court - liability and remedy awarded.
High Court Judges hear cases in the High Court but sometimes Crown Court.
Hear cases of First Instance and Appeals.
Hear evidence from the witness, decide what the law is and make a decision (liability)
Take a more active role
Deciding the facts of the case
Decide verdict where there is no jury
Deciding the remedy for the injured party
Will decide on time limits and penalties if appropriate
Determine the final decision in regard to the law
Determine how much, if any, compensation is owed/ other penalties such as an injunction
Determine how much and if the unsuccessful party pays for the successful party's costs.
Judge acts as a referee
Summing up
Informing the duty of the relevant law
Delivering sentence on a guilty verdict
Decides legal matters (which evidence is admissible, whether bail should be granted)
Regulates the trial - make sure each party has a chance to speak + that witnesses or defendants are not unduly bullied or harassed
Making notes on the relevant points
Carefully explain these to the Jury (so they does not influence them)
Advise and answer questions from the Jury
Decide whether or not a majority sentence is acceptable.
Higher court = 3 women v 34 men - civil appeal
26% women - high court +
44% female in magistrates court (District Judges)
80.6% white 8.5% ethnic - minority
Improving - increased in the last 20 years
75% = Oxford or Cambridge
65% = Private schools
Good education = good decision making
Crown Court
Jury - 12 people
Deal with serious criminal cases, such as murder and rape.
Their duty is to decide the verdict - Guilty or not guilty?
High Court
Jury - 12 people
Deal with - False imprisonment, Malicious imprisonment, defamation and any case alleging fraud
Their Duty is to decide the liability of the claimant (this means, have they proved their case?) and decide the number of damages the defendant must pay the claimant.
Country Court
Exactly the same as the High Court, except their Jury consists of 8 people rather than 12.
Coroner's Court
Jury - varies between 7 - 11.
Deal with - Death: In custody, As a result of an act or omission by a police order, Where the death was a notifiable accident, poisoning or disease.
Their duty is to decide on the cause of death
The present qualifications are set out in the Juries Act 1972 which state, in order to qualify an individual, one must be:
18 - 70
Registered as a parliamentary or local government elector
Resident in the United Kingdom, the Channel Islands or the Isle of man for at least 5 years since their 13th birthday.
Selected from the electoral register by Central Summoning Bureau – legal obligation
Ballot to decide which case
Challenged
Sworn in and take oath
They are disqualified if:
Sentenced to five years or more imprisonment (Disqualified for life)
Served a prison sentence or suspended sentence or community order (Disqualified for 10 years)
On Bail (disqualified whilst on bail)
Mentally ill and disordered individuals under the Mental Health Act 1983 are disqualified.
Blind and deaf people are also disqualified because they won't be able to see the evidence or hear certain ways the evidence/other individuals involved communicate and their specific way of saying and pronouncing things. Also if a sign language interpreter was invited in, that would mean the Jury would consist of 13 people, when the rule is 12.
Selected at random from the electoral register - Jury Central Summoning Bureau
Summons sent to these people
They must attend unless the will have to pay a £1,000 fine
Must attend for 10 working days
Provides a cross-section of the public
Background check
Further selection in court – choose 12 from a random pool using cards
A court clerk will select 12 out of 15 potential jurors at random
If the jury member knows who stands for hearing they must tell the judge and the judge will decide if they stay on the jury
When the potential Jurors are checked for suitability, there are two types of vetting:
Routine Police Checks - Made on prospective jurors, to eliminate those disqualified. R v Mason (1980) Where a Chief Constable had been allowing widespread use of unauthorised vetting of criminal records. However, the Court of Appeal approved this type of vetting. They pointed out that since it's a criminal to serve a Jury whilst disqualified, the police were only doing their duty of preventing crime, by checking such records.
Juror's Background checks - Attorney-General published guidelines in 1980 on when political vetting of jurors should take place. These state that this type of vetting should only be used in exceptional cases, involving national security and terrorist cases, to check the individuals' political affairs and their loyalty.
Individual jurors may challenge for a cause - for example, they know the juror.
The whole panel may be challenged for biassed selection - but no right to a multi-racial jury (R v Ford (1989))
Juries in civil cases are now only used in very limited circumstances but where they are used they have a dual role.
They decide whether the claimant has proved their case or not, then if they decide that the claimant has won the case, the jury also goes on to decide the number of damages that the defendant should pay to the claimant.
Rules for when juries may be used in civil cases are set out in section 69 of the Senior Courts Act 1981, for High Court cases and section 66 of the County Courts Act 1984, for cases in the County Court.
These acts state that parties have a right to a jury trial in the following cases:
Defamation
False imprisonment
Malicious imprisonment
Any case alleging fraud
HOWEVER, A jury can be refused if the judge feels the case involves complicated documents or accounts or scientific evidence and is therefore thought to be unsuitable for a jury trial.
Although juries are very important, in the criminal justice system, they actually deal only in a minority of the cases.
The jury can try a case in the Crown Court, and if the defendant pleads not guilty and the trial proceeds further, they will be tried before the jury. There is a split function in that the Judge decides the points of Law and the Jury decides the facts. The Judge has the power to direct the jury to acquit the defendant because the judge has decided that the prosecution's evidence has not made out a case against the defendant (This is called a direct acquittal and occurs in 10% of cases.)
The judge will sum up the case at the end, and direct the Jury on any point of Law involved. The Jury retires to a private room and makes a decision on the guilt or innocence of the accused in secret. They must try to come to a verdict that they all agree on. The Judge must accept the verdict, even if they disagree with it!
The Jury discussion takes place in secret and there can be no inquiry into how the jury reached its verdict. The Contempt of Court Act 1981 makes disclosure of anything that happened in the Jury room.
Advantages | Disadvantages |
|---|---|
Public Confidence | high acquittal rates undermine confidence in the Criminal Justice System |
Considered to be a fundamental part of a democratic society | doing Jury service is unpopular |
Jury Equity | this can cause perverse verdicts (Jury relying on their opinion of what's right and wrong, rather than the law) |
Open system of justice | Media Influence - ie. they may say in The Sun that the defendant is a rapist when they could actually be innocent, and the jurors may read this and therefore be influenced in making their verdict |
Involves members of the public | media influence is a disadvantage. |
Secrecy of the jury room protects jurors from pressure | reasons for the decision are not known and the Jury's understanding of the case cannot be checked. |
Impartiality (Having 12 members with no direct interest in the case should cancel out any bias) | some cases there have been biassed and racial bias |
No specific qualifications
Must be the right character – 6 key qualities
Good character
Understanding & communication
Social awareness
Maturity & sound temperament
Sound judgement
Commitment & reliability
Age: 18-65 *retire at 70 (some disqualifications, e.g. serious criminal conviction or undischarged bankrupt)
Commitment of 13 days per year
Local Advisory Committee selects and appoint
Names can be put forward by anyone and adverts are used
Candidates interviewed and names put forward to Lord Chief Justice.
Appointed through recommendation for recruitment of advisory committees, public bodies of current magistrates and non-magistrates.
Local Advisory Committee - volunteer
Interview 1 - maturity, sound judgement + reliability social judgement, understanding and communication, good character
Interview 2 - case studies
There are 700 new magistrates appointed per year
They are appointed by the Lord Chief Justice based on recommendations from the Local Advisory Committees
Such committees have 12 members and at least 1/3rd are non-magistrates
Magistrates hear cases in the family proceedings court and make decisions on a range of issues affecting children and families.
Magistrates also decide whether to grant certain orders, licences or certificates.
council tax bills, television licences and enforcing debts owed to the gas, electric and water utilities.
Enforce financial penalties
They try about 97% of all criminal cases.
Also deal with preliminary hearings in the remaining 3% of criminal cases.
Issue warrants for arrest search
Grant applications for bail or remand defendants in custody
In summary trials determine whether a defendant is guilty or not
Pass sentence on a defendant who has been found guilty
May decide to hear an either-way offence if the defendant also agrees.
Sit in the Crown Court with a judge to hear appeals from Magistrates’ Courts against conviction or sentence
Sit in the Crown Court with a judge to hear committals for sentence
Commit defendants convicted of either way offences to the Crown Court for sentence
Sit in the Youth Court to hear cases involving young offenders aged 10-17
Least serious criminal offences.
Must be trialled in the Magistrates' court
The most serious offences that have to be trialled in the crown court
Strats at the magistrates court to find the identity of the defendant
If the defendant pleads not guilty, a jury will decide if the defendant is guilty or not after hearing all the evidence
If the defendant pleads guilty, the judge will impose a sentence
When sentencing the judge can impose any sentence up to the max of tha offence (murder, Mansalughter and robbery)
More serious offences
These offences contain include assaults causing actual bodily harm and theft of property over £200
These differences can be trialled in either the magistrates or the crown court.
If it started at the magistrates - then the process is similar to summary offences the only difference is that if the defendant pleads guilty or is found guilty, the magistrates have the power to send the defendant to the crown court for sentencing. - they can only do this if they think that they cannot give an adequate sentence.
If the case starts at the crown court the trial will continue like an indictable offence. if the defendant pleads guilty or is found guilty, the judge decides the sentence up to the maximum of that offence.
The defendant will be put before the Magistrates’ Court who will deal with administrative matters (known as an Early Administrative Hearing). This may be done by a single Magistrate or the Legal Adviser who will make decisions about legal aid and bail.
They aim to complete the case as quickly as possible. When the hearing starts the court clerk will take the defendant's plea (weather they say they are guilty or not guilty)
Over 90% of defendants in the magistrates’ court plead guilty.
If the defendant pleads guilty, the magistrates can sentence the defendant immediately or adjourn the case to allow for a pre-sentence report to be made by the probation service (these reports outline the defendant’s circumstances and can aid the magistrates in their sentencing).
The jurisdiction of the Magistrates’ Court is imprisonment up to 6 months for one offence and Magistrates can also impose community-based sentences, fines and conditional or absolute discharges.
If the defendant pleads not guilty the magistrates will try to find the issues involved and set a date for the trial.
After the preliminary administrative matters have been dealt with at the Magistrates’ Court, a defendant charged with an indictable offence will be sent to the Crown Court. If the defendant pleads guilty to an indictable offence, the judge will pass sentence. If the defendant pleads not guilty, he or she will be tried by a jury who will decide the verdict. If found guilty by the jury, the judge will pass a sentence.
After the Early Administrative Hearing, a person charged with a triable either-way offence will have a ‘plea before venue’ hearing where the defendant will enter a guilty or not guilty plea. If the defendant pleads guilty, the magistrates will sentence. If however, the magistrates believe that the defendant deserves a more severe punishment than they have the power to give, the magistrates will send the defendant to the Crown Court for a judge to pass sentence.
If the defendant pleads not guilty, there will be a ‘mode of trial’ hearing. Magistrates will consider the case and decide if they accept jurisdiction (have enough sentencing power). They will consider the seriousness of the case and hear reasons from both the prosecution and the defence. If the magistrates decline jurisdiction, the case will be sent to Crown Court for a trial by judge and jury. If the magistrates accept jurisdiction, the defendant has the right to opt to be tried summarily at the Magistrates’ Court or choose a trial by jury at the Crown Court.
Divided into levels which carry out different maximum fines:
Level 1 - max £200 (magistrates)
Level 2 - £500 (magistrates)
Level 3 - £1000(magistrates)
Level 4 - £2500 (magistrates)
Level 5 - unlimited (magistrates + crown)
There are 2 types: general and individual.
This aim is to reduce crime by dissuading people from offending or reoffending.
Individual deterrence
The aim is to deter that particular person from re-offending. A custodial sentence could act as a deterrent as the offender who is sent to prison will be reluctant to reoffend as they do not want to be
sent back in the future.
General deterrence
The aim is that people will be deterred from committing crimes by the level of punishment that they will receive if convicted. People convicted of certain crimes will be given a very harsh sentence to deter others from committing the same crime. This might be used if a particular type of crime has become a problem in an area – for example football hooliganism, joy-riding or mobile phone robberies.
To reduce crime by reforming the offenders and h=rehabilitate them into society. To alter the offenders’ behaviour so that they don't reoffend.
An offender is helped to solve the issues that lie behind his/her criminal behaviour. Eg - A drug addict who steals to fund their habit may be assisted to overcome their addiction thereby removing the need to steal in future. A person who reacts aggressively and commits acts of violence may be sent on an ‘Anger Management’ course. Other offenders may be helped to develop their social skills and some may undertake training to improve their chances of employment.
Individualised community sentences are often used to help rehabilitate the offender in the hope that this will reduce the chance of reoffending in the future. The probation service will often be involved to help the offender deal with the issues that have resulted in their offending
Main aim is to protect the public from violent or prolific offenders. For Example, Imprisonment removes these criminals from the public domain by restricting their liberty. In physically restraining offenders, it protects the public, albeit temporarily from becoming the victims of further acts of crime. a drunk driver will be disqualified from driving. Offenders who are subject to a curfew or electronic tag will restrict their movements and therefore, reduce their contact with the general public.
To punish the offender who deserves punishment for carrying out a criminal act(s). The idea is that if a person has knowingly done wrong, they deserve to be punished and society expects that they are. NOT to reduce the amount of crime or fix the offender’s future behaviour.
Only concerned with the offence that was committed and making sure that the punishment fits the crime.
“An eye for an eye, a tooth for a tooth and a life for a life” used in America as convicted shoplifters are made to stand outside the shop that they stole from with a sign proclaiming that they are a thief.
Aim at compensating the victim of the crime by ordering the offender to pay a sum of money or to make a reparation like giving back something they stole. They could also carry out work in the community encouraging offenders to accept responsibility for their crime.
Aggravating factors will increase the sentence and mitigating factors will reduce the sentence. In the Magistrates’ Court, it is the magistrates who decide on the sentence whilst at the Crown Court it is the judge who sentences the offender.
These are factors which make an offence more serious and can result in a more severe sentence being passed. They can include a number of things such as the use of a weapon, a premeditated attack, if the offence involved a breach of trust, a racist or religious motive behind the offence, if the victim was particularly vulnerable. It also includes any relevant previous convictions and if the offence was committed whilst on bail.
Mitigating factors may relate to the offender and can include previous good character, personal circumstances and the fact that they have shown remorse. Under s.144 of the Criminal Justice Act 2003, a prompt guilty plea can reduce the sentence by up to one third. This reduction reduces the closer it gets to the trial.
Other mitigating factors include assisting the police, the fact that the offence was committed on the spur of the moment rather than being premeditated, the fact that the offender was provoked or an attempt by the offender to compensate the victim.
An indictment - formal charge
Prosecution a trained lawyer who tries to prove the defendant guilty of committing a crime in a court of law
Defence - people that are facing indictment
Point of Law of General Public Importance - no right to appeal to the supreme court as permission is needed
Jury Nobbling - the actual of attempted influence of one or more jury members through intimidation or inducement.
Manifestly Severe - sentence might be deemed too severe/strong/harsh
Unduly Lenient - leapfrog procedure (sentence might not be strong enough) - skip court of appeal (precedence)
Unsafe Conviction - (conviction - outcome/ guilty) - police misconduct evidence, the law applied incorrectly
Trial de Novo - new trial
Double Jeopardy - defendant cant be trialled unless new evidence is found
If the defendant is a company, a registered office must be situated there.
All contract claims & almost all tort actions up to a value of £50,000 can be tried in the county court; the only tort action that can't be tried is libel.
Most county courts deal with divorce cases, bankruptcy cases, tax cases, land law disputes.
All fast-track actions must be taken in the county court.
Appeals are heard by a circuit judge (small claims cases), a single High Court judge (fast-track cases) or a court of appeal (multi-track cases).
In all cases leave to appeal must be granted.
Small Claims Arbitration procedure: has a jurisdiction to hear cases up to a value of £5000 (£1000 for personal injury claim). Less formal procedure and a district judge presides over this (legal aid not available). This arbitration has dealt with many cases that could not have been pursued in the county court itself because of the high costs, delay and complexity.
The high court is set up in divisions: Queen's bench, chancery and family division. There is no financial limit to the jurisdiction of the high court.
Traditionally hears contract and tort actions, it also has jurisdiction to hear defamation (mainly libel) cases. The Queen's Bench is the most important of the divisional courts and has three main areas of jurisdiction:
under the magistrates courts act 1980 appeal to the queen's bench is by way of case stated on a point of law.
most important area of jurisdiction: 2 judges assess the legality/decisions of public bodies, especially of government ministers.
has oversight of all inferior courts.
has jurisdiction over matrimonial matters, including contested divorce actions, wardship, adoption and uncontested probate matters. Example: Re A (conjoined twins) 2000.
mainly exercises an equitable jurisdiction and deals with contested probate matters, trusts, mortgages, bankruptcies, company and partnership cases and taxation matters.
Advantages | Disadvantages |
|---|---|
Small Claims Court is less formal than the main County Court, with a District Judge taking an active role, setting time limits and asking questions | ADR is encouraged, but not always appropriate or enforced by judges |
Solicitor not needed in many cases, unless the claim is contested | Expensive and time-consuming cases can prevent many claims from reaching the High Court |
Simplified and single set of rules governing both the High Court and the County Court | QBD is based in London, but the Chancery division has bases around the country |
Most civil cases start at the county court.
Court is the very last option and the pre-trial procedures help fix most of the problems to avoid using court hearing.
First they explain the conduct and set out the steps the court would want people to normally take before court.
Certain claims must be started in their court:
Amount of claim | Which court |
|---|---|
Less than £10,000 or in £1000 for personal injury claims. | Small Claims Court |
Less than £100,000 or £50,000 for personal injury claims. | Must be started in the County Court |
More than £100,00 or more than £50,000 for personal injury claims. | Can be started in the county court but is more likely to be started in the High court |
Claima under £10,000 + £1000 for personal injury
Claimant encouraged to represent themselves in order to keep overall costs low
The “winner” cannot recover thee cost of the solicitor, if one is used, from the loosing party
Heard by a District Judge
Minior civil cases
Informal setting
No strict rules of evidence, no cross-examination
Use of lawyers is not encouraged + witness are dicouraged or not allowed
Claims of no more than £25,000
Strict time tabe for pre-tiral matters, to ensure no wasting time
Aim for claim to be heald within 30 weeks of being received by court
Heard by a Circuit Judge
High value claims
More formal and heald in an open court
Lawyer is allowed and only one expert witness allowed
Judge directed by civil procedure rules to manage each claim
This is an attmept to reduce time wasting by council an subsequent running up cost
Claims of more than £25,000
Heard by a more senior judge (circuit or hogh court judge)
Most formal
Judge has a more “hands-on” apporach
They manage tometab;es
Gathering evidence
Control of expert witnesses
Use of alternate dispute resolution is encouraged by the judge where possible
Trial dates are set and strictly enforced which generally a 72 weeks
If either party in a case is dissatisfied with the decision made by the judge at first instance, then it is possible to appeal.
Appeal’s against the district judge’s decision can only be made if there was a serious irregularity in the proceedings or the district judge made a mistake of law. The application for appeal will be referred to a Circuit Judge who may either dismiss the appeal or order that it be listed for hearing. The appeal itself will be heard by a Circuit Judge.
From the High Court the appeal usually goes to the Court of Appeal (Civil Division)
On a point of law
Leave to appeal required
Possible leapfrog appeal directly to the Supreme Court
Can only leapfrog if statutory interpretation or precedent is involved or the Court of Appeal is bound by one of its own previous decisions
Permission to leapfrog required from the Supreme Court
Both employment tribunals and ADR are ways of resolving disputes without going to court.
Employment tribunals involve disputes between employees (or potential employees) and employers.
DR generally involves disputes between consumers and traders. The most common types of ADR are mediation and arbitration.
Negotiation is the most basic form of ADR, where an individual attempts to resolve the issue directly, privately and possibly face to face with the other party. However there is a chance that their problem might not have been resolved. For example, this would be suitable for:
noise caused by neighbours
returning faulty goods to a shop
receiving poor service from a tradesperson.
Negotiation is not binding, involves cooperation informal and the procedure is controlled by the parties disputing.
Advantages | Disadvantages |
|---|---|
It can be straightforward contract between parties. | One of the parties may be hostile towards the other |
Low to no cost - no need for lawyers | Either party may believe they are in the right and not prepared to settle |
The parties themselves are in control | If the dispute is not settled, the case may go to court, which will involve costs and the court may insist the parties go back to negotiation before trial. |
Mediation is slightly more formal than negotiation, but still a relatively informal method of dispute resolution. This is not binding, the third party has no say and acts like a facilitator and goes back and forth from party to party giving each other views on the problem.
A neutral third-party mediator attempts to resolve the issue (possibly face to face) with both parties, without giving their opinion. For example, this would be suitable for:
businesses negotiating or renegotiating contracts
marriage guidance to avoid separation or divorce.
Advantages | Disadvantages |
|---|---|
Cheaper than court | Will only work if both parties agree and cooperate |
Parties in control of the process | Many decisions may not ultimately be binding on both parties |
Based on common sense rather than decisive legal rules | May be unable to reach agreement. |
Conciliation is a form of mediation, where a third party tries to suggest a compromise between the disputing parties (has a say). For example, this would be suitable for:
disputed access to goods and services by disabled people
cases of alleged discrimination
some employment disputes
some family law matters involving the Family Division of the High Court.
Advantages | Disadvantages |
|---|---|
Cheaper than court | Many decisions may not ultimately be binding on both parties |
Parties have some control in choosing the conciliator and process | No decision is guaranteed at the end |
The process is flexible with a time and date set to suit the parties | The concilliatr may force a resolution on one or both parties |
For this ADR, a third party decides the case when the disputing parties refer the case to it. The arbitrator is impartial – they don’t take sides but hear all of the arguments and make a decision based on the evidence. This is a formal procedure similar to a court procedure with a witness and evidence.
Scott v Avery clause - if anything goes wrong arbritation is used first
Before arbitration is used, both sides must agree that the arbitrator’s decision will be binding. For example, this would be suitable for:
package-holiday contracts
disputes between employees and employers using ACAS, an organisation that gives employers and employees free, impartial advice on workplace rules, rights and practice.
Advantages | Disadvantages |
|---|---|
It is voluntary | More expensive than other formas of ADR |
This decition is bnding and can be enforced | Requires confrontation with the other party |
The arbitrator will be qualified and experienced | Process can be complicated anf formal |
Employment tribunals are specialist employment ‘courts’ that deal with such issues outside the civil courts system.
Role | Responsible for hearing claims from citizens who think someone such as an employer, a potential employer or a trade union has treated them unlawfully. Employment tribunals (ET) were established to deal with specific areas of employment rights as part of a historic overhaul of social and welfare legislation. |
|---|---|
Jurisdiction | Includes:unfair dismissal discrimination unfair deductions from pay. |
Procedure | When a claim arises and cannot be sorted out between the individual and their employer throughinformal discussions, then:Claimants generally use an ET1 form to make a claim via the gov.uk website to the Tribunal Office, if they feel they have been treated unfairly.A respondent has 28 days after receiving the ET1 to complete a response form known as an ET3.If the claim is accepted by the Tribunal Office, then the employer is contacted.If the employer does not respond, then judgement is made in favour of the claimant.If the employer disputes the claim, then the case will go to ‘case management’ and a hearing is held to resolve the dispute.Hearings are heard by a panel of three: an employment judge, a representative of an employer’s organisation and a representative of an employee’s organisation.Following the hearing a judgement is issued. |
Advantages | Disadvantages |
|---|---|
Cheaper than court | Huge volume of cases → delay |
Quicker than court | Public funding is not available for tribunals so one side may be at a disadvantage if the other parties can afford a lawyer to represent them making the process unfair |
Informal and provate | Appeals are limited to issues of law. |
Criminal Law
Criminal Formula – Actus Reus + Mens Rea - defence = POTENTIAL criminal liability
Scenarios:
Murder
Voluntary Manslaughter
Involuntary Manslaughter
Non-Fatal Offence Against a Person
Attempts
General Defences; consent, self-defence, duress, intoxication
Essays:
NFOAP
Consent
Self-defence
Intoxication
Key aims of Criminal law:
Detter - put off people from doing crimes
Retribution/ Punishment - punish the right people
Protection - protect people
Justice
Balance
Intro
The legal definition of murder is 'the unlawful killing of a human being in the King’s peace, with malice aforethought'
The actus reus of murder consists of the unlawful killing of a human being in the King’s peace. The mens rea of murder is malice aforethought, which has been interpreted by the courts as meaning intention to kill or intention to cause GBH.
Act or Omission
The defendant’s (D) physical acts or omissions required for liability. The general rule regarding omissions is that there is no liability for a failure to act.
Gibbons and proctor - she died of starvation as the result of a long course of cruelty and neglect at the hands of both appellants. Gibbons was in regular employment and the latter was earning a decent amount of money. It was his duty to provide the money; it was hers to provide food. However, the child was not hers, but she was living with Gibbons
Causes
Factual causation -
But for test (but for the actions of the defendant, would the result have occurred?)
White - The defendant put poison in his mother’s drink intending to kill her (V). However, V died due to an unrelated heart condition and not because of the poison.
Legal causation - Was the defendant the operating and substantial cause?
Medical treatment - will not break the chain of causation if the D is still the operating and substantial cause. Only if the medical treatment is “palpably wrong”.
Smith - stabbed the victim during a fight at their barracks and pierced his lung. Another soldier tried to carry him to the medical station but dropped him twice on the way. He received treatment that was not only inappropriate but positively harmful and he died a couple of hours later.
Jordan - the defendant stabbed the victim (V). However, V’s medical treatment at the hospital was poor. Eventually, V died as a result of the poor treatment, even though the wound was no longer life-threatening.
Victims Response - There are three types of acts of the victim that we will consider: ‘fright and flight’ cases, refusing medical treatment and suicide. There must be some proportionality between the gravity of the threat and the action of the deceased in seeking to escape from it. (Reasonable Response)
Williams - The appellants gave a lift to a hitchhiker and tried to rob the hitchhiker at knifepoint. The victim jumped from the moving car and died of head injuries. (Daftness Test)
Act of a third party - The act of a third party will generally break the chain of causation unless the action was foreseeable. There may only be a break in the chain of causation if the actions of the third party were “free, deliberate and informed”. Only break the chain if it completely overwhelmed the actions of the defendant
Pagett - Using his pregnant girlfriend as a shield, Pagett shot at the police, who were attempting to arrest him for various serious offences.
Thin skull - never breaks the chain - pre-existing injury. You take your victim as you find them which include physical conditions which may make their injuries worse, for example an allergy and their beliefs
Blaue - The defendant stabbed an 18-year-old girl four times when she refused to have sexual intercourse with him. She was a practising Jehovah's witness and refused to have a blood transfusion which would have saved her life. - refusal of medical treatment
Unlawful
Death is only lawful if War, Necessity and Self Defence. The test to be applied for self-defence is that a person may use such force as is reasonable in the circumstances as he honestly believes them to be in the defence of himself or another.
Beckford - The appellant said that on arriving at the house, he saw a man run from the back door with an object which appeared to be a firearm. As the police followed him, the appellant stated that Barnes fired at the police, in response to this he fired back, shooting and killing Barnes. In fact no gun was ever found.
Death
A person is classed as legal dead if they are ‘brain stem dead.’
Malcherek - the defendant had stabbed his wife. The victim had been taken to hospital and placed on a life support machine. The doctors later switched off the life support machines as the victim was not showing any activity in their brain stem.
Steel - Defendant attacked a girl and as a result she suffered serious head injuries. She was taken to hospital and had to be put on a life support machine. After a short time, the doctor’s came to the conclusion that there wasn’t any activity in her brain stem and classed her as ‘brain dead’, and turned off her life support machine.
Human Being
You are classed as a human being if you are wholly independent from the mother and have taken your first independent breath.
AG Ref No3 - The defendant stabbed his pregnant girlfriend in the face, abdomen and back when she was 22-24 weeks pregnant. 17 days after the incident the woman went into premature labour and gave birth to a live baby. The baby died 121 days later due to the premature birth.
Direct intent to cause death or serious injury
there must be a direct intent to cause death of serious injury.
Vickers - Murder is, of course, killing with malice aforethought, but ' malice 'aforethought' is a term of art. It has always been defined in English law as either an express intention to kill, as could be inferred when a person, having uttered threats against another, produced a lethal weapon and used it on a victim, or implied where, by a voluntary act, the accused intended to cause grievous bodily harm to the victim, and the victim died as the result."
Death or serious injury was a virtual certainty
2 tests - Was death or serious injury a virtual certainty? Did the Defendant foresee it as such
Nedrick - The appellant held a grudge against Viola Foreshaw. He went to her house in the middle of the night, poured paraffin through her letter box and set light to it. A child died in the fire. “he knew that it was highly probable that the act would result in serious bodily injury to somebody inside the house, even though he did not desire it - desire to bring that result about - he is guilty or murder.”
Woollin - The appellant threw his 3 month old baby son on to a hard surface. The baby suffered a fractured skull and died. He must have realised and appreciated when he threw that child that there was a substantial risk that he would cause serious injury to it, then it would be open to you to find that he intended to cause injury to the child and you should convict him of murder.
Ellie and Liam are having a disagreement, Liam gets angry at Ellie and stabs her in the stomach and chest repeatedly. Ellie is pregnant at the time. Ellie is rushed to hospital, and in the ambulance a piece of medical equipment falls on her head, Ellie dies on the way to the hospital and is pronounced brain stem dead, and so does her unborn child.
Advise Liam on his potential liability for murder (20)
Act or omission
For murder, the law states there must be an act or omission. An omission is demonstrated in the case of Gibbons and Proctor, the defendants neglected their child and he died of starvation, they were found guilty of murder. In this scenario, Liam stabbed Ellie, this is an act, Liam satisfies this element.
Cause (factual)
To satisfy this element the defendant must be the factual cause, but for their act or omission the victim would not have died. In the case of White, but for the defendants action of poisoning the milk the victim may have had a heart attack anyway, White was not guilty of murder, he was not the factual cause. In this scenario, but for Liam's act of stabbing Ellie, it’s likely she would not have died. Liam is arguably the factual cause.
Cause (legal)
Legal causations looks at possible breaks in the chain of causation, did anything intervene that will remove criminal liability for murder from the defendant. Points to consider include medical treatment, actions of the victim, a 3rd party and a thin skull. In the case of Smith where the medical professionals dropped the victim whilst attempting to save their life, it was found that the defendant was still the substantial cause of death, the actions of the Medical Professionals did not contribute as much to death as the defendants actions. In this scenario the case would likely take the same approach, Liam could seek to blame the medical equipment falling on Ellie’s head for Ellie’s death. However it’s likely Liam repeatedly stabbing Ellie was the substantial cause, the medical equipment falling on her head would not have contributed to the death and would not break the chain of causation. Liam is arguably the legal cause.
Unlawful act
Murder is only lawful for war, necessity and self defence. This is demonstrated in the case of Beckford, he acted in self defence as he believed he was threatened by a gun. He was found not guilty or murder. In this scenario, war, necessity and self defence aren’t relevant. Liam committed an unlawful act.
Death
To be guilty of murder, the law states you must be brain stem dead. This was demonstrated in the case of Malcharek where the victims family tried to argue that the hospital turning of the victims life support was murder, they where not guilty as the victim was already brain stem dead. In this scenario, Ellie is brain stem dead.
Human being
The law states to be guilty of murder, the victim must be wholly independent from the womb and taken their first breath. This was demonstrated in AG ref NO3, defendant stabbed pregnant wife and the baby died, he was not guilty or murder as the victim was not wholly independent from the womb. Similarly, in this scenario, Liam would not be guilty or murder for the unborn baby as they were not wholly independent from the womb, but Ellie was so he can be found guilty of murder for her.
Direct intent
The law states the defendant must have direct intent to cause death or GBH, as demonstrated in the case of Vickers. The defendant punched an elderly woman when robbing her home, he was found guilty or murder as he had the direct intent to cause GBH. In this scenario it’s arguable Liam had the direct intent to cause at least GBH to Ellie. This is because his actions were repeated.
Indirect intent
If there was no direct intent to cause GBH the jury may consider whether death was a virtual certainty. In the case of Nedrick, he set fire to a house and a young boy died in the fire, the jury acquitted him of murder as the boys death was not a virtual certainty. In this scenario If it is not seen as direct it would arguably be at least indirect intent. This is because death or serious injury was a virtual certainty.
In conclusion, Liam would more than likely be found guilty of Murder as he appears to satisfy all necessary elements of conviction.
Mens rea was affected because the mind was affected to do the act.
Reduces charge of murder to manslaughter if the defence is successful.
Voluntary manslaughter is a partial defence.
These defences are only available for Murder - hence special defences to murder.
Loss of Control
This represents a change from the law of provocation which required the loss of control to be sudden and temporary now it does not need to be temporary but the provocation can be a “slow burn” reaction, rather than the immediate loss of self-control.
This represents the 3 different types of requirements needed to prove provocation:. There must be evidence of provocation, The defendant must have been provoked to lose their self-control and The provocation must be such as to make a reasonable man do as the defendant did.
R v Ahluwahlia - Ahluwahlia, suffered abuse and violence from her husband for years. After one violent evening, she went to bed thinking about her husband’s behaviour and could not sleep. She finally went downstairs, poured petrol into a bucket, lit a candle, went to her husband’s bedroom and set it on fire. Her husband died from his injuries.
Section 55 - Qualifying trigger, that is extremely grave in character and provides a justifiable sense of being wronged.
Section 55 of the Coroners and Justice Act 2009 identifies three qualifying triggers:
S55(3): D’s fear of serious violence from V against D or another identified person (e.g. family member) [subjective test];
The defendant does not have a fear of violence by the victim, fear of violence on another person who must be identified can amount to a qualifying trigger.
R v Ward - the victim attacked the defendant's brother. He pleaded for loss of control which he succeeded in
S55(4): thing(s) said and/or done
The jury decides whether a reasonable person would lose control
S55(4): Must be extremely grave character and also caused D to have a justifiable sense of being seriously wronged [objective test]
OLD LAW - R v Doughty - His wife had had a caesarean and was told to take things easy so the appellant was looking after his wife and the baby in addition to carrying out all the general household matters. One night the baby kept crying. The appellant used his best efforts to keep the baby quiet to no avail. He then covered the baby's mouth to dampen the sound. He then stated that due to his excessive tiredness and the constant noise of the baby he lost his control and pressed down harder than he meant to and ended up suffocating his son, killing him.
Characteristics of the defendant.
S.54 Coroners and Justice Act 2009 - A person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.’
DDP v Camplin - A 15-year-old boy, killed a middle-aged man by hitting him over the head with a chapati pan. he defendant raised the defence of provocation stating that the deceased had raped him and then laughed at him at which point he lost his control and hit him.
Exclusions to the defence
S.55 Coroners and Justice Act 2009 - Defence cannot be used if Self Induced, Sexual Infidelity or Revenge.
Sexual infidelity - Sexual infidelity can not be relied upon on its own as a qualifying trigger, but its existence does not prevent reliance on the defence where there exist other qualifying triggers.
R v Clinton - The appellant and his wife both suffered from depression. He and his wife agreed to a trial separation for four weeks as she needed time out. She left him with the children and moved into her parent’s home. The appellant did not cope well with this and became obsessional and had been looking at suicide websites. Two weeks later she revealed to him that she was having an affair. He asked for her to come to the matrimonial home in order to tell the children together that their marriage was over. She agreed to meet. However he had arranged for the children to be elsewhere at the time she was due to come and he was heavily intoxicated. At the meeting he killed her by repeatedly beating her on the head with a wooden baton and strangled her with a belt. He then took photos of her naked body in various poses and texted them to her lover.
Revenge -
Self-induced - A defendant will still be allowed the defence if they induced the provocation
R v Johnson - the appellant was at a night club. A woman called him a 'white ni**er'. The appellant was white but had taken to adopting a West Indian accent. He took exception to the comments and made violent threats to her. A male friend of hers intervened and poured a glass of beer over the appellant. A fight developed between the two men and the appellant stabbed the man resulting in his death. The appellant argued he was acting in self-defence as he believed he was about to be glassed. He also denied losing any self-control.
The Homicide Act originally governed diminished responsibility
Abnormality of mental functioning caused by recognised medical condition
There must be an abnormality of mental functioning caused by a recognised medical illness.
R v Kemp - The defendant assaulted his wife with a hammer. He had no previous history of violence and no apparent motive. He suffered from hardening of the arteries which lead to a congestion of blood in the brain. This caused a temporary lack of consciousness so he was not conscious that he picked up the hammer or that he was striking his wife with it.
Substantial Impairment
One of the 3 things that must be substantially impaired is:
To understand the nature of his conduct - where he is in such a state where he does not know what he is doing.
To form a rational judgement - those suffering from paranoia, schizophrenia or battered wife syndrome may not be able to form all relevant circumstances before or after the killing.
To exercise self-control
R v Lloyd - it was held that substantially does not mean total or trivial and minimal. It is something in between and it is for the jury to decide if the defendant’s mental responsibility is impaired and if so whether it is substantially impaired.
R v Campbell - the defendant had previously suffered frontal lobe damage and this was considered to be a substantial impairment. This was considered to be an impairment that would impact his behaviour and thought process, which would be a successful defence for murder.
Causal Link between illness and action
There must be a causal link between the illness and the damage that was caused
Blackman - PTSD is what caused him to kill the captured man.
R v Joyce Kay - In this case the jury found there was a causal link between the defendant’s actions of killing and his paranoid schizophrenia.
Intoxication
Intoxication is only applicable when there is a defence of DR if the intoxication is due to an illness itself such as alcohol dependence syndrome
If a person is intoxicated but also has another illness. It must be proved it was the illness that made them act if the defence is to be successful
Dietschmann - the defendant felt that the victim was disrespecting the memory of the defendant’s aunt who had just died. He killed the victim by readily kicking him and stamping on him, the defendant had drunk about a third of a bottle of whisky and two and a half pints of cider before killing the victim.
Ella suffers from a history of domestic violence and has been abused by previous partners, because of this she suffers from severe PTSD and depression. One evening after a night out with friends she came home drunk to find her current partner Harry sleeping with another woman. Harry jumps frantically and tries to grab Ellas arm to remove her from the room, Ella retaliates and hits Harry over the head with a cast iron doorstop. Harry died at the scene of a serious bleed to the brain.
Intro
Diminished responsibility is a defence to murder under s52 of the Coroners and Justice act 2009. There are several factors to satisfy a successful defence of diminished responsibility.
Abnormality of mental function
The law states for this route to defence there must be an abnormality of mental functioning caused by a medically recognised condition or disorder, this must be approved by 2 medical professionals. The case of RvBryne demonstrates this, the defendant was sexually perverted, this condition was an actual medical disorder and was successfully used as his defence to murder. In this scenario Ella has both PTSD and depression, both are widely recognised mental health conditions,due to these conditions Ella would likely satisfy this element.
Causing a substantial impairment
The law states that the abnormality must cause a substantial impairment to the way in which the defendant acts, thinks, processes situations and behaves. This is demonstrated in the case of Rv Campbell where the defendant's frontal lobe damage was seen as something that would affect his thought process and behaviour and was a successful defence to murder. In this scenario, Ellas PTSD is something that has the possibility to affect reactions, behaviours and thought processes and her depression may also affect the way she thinks. Both of these mental health conditions are likely to affect her behaviour, actions and thought processes in this situation, Ella likely satisfies this element.
Causal link between illness and action
The law states that there must be a causal link between the illness and the way the defendant acted in the situation, there must be some correlation and relevance between the two. The case of R v Joyce kay shows how the jury found a causal link between the defendant's actions and his schizophrenia. In this scenario, Millie's PTSD from previous domestically violent relationships and what she did may be found as having a causal link. Millie retaliated to Harry reaching out to grab her, her PTSD from previous relationships may have made her fear violence and lash out at Harry in fear and self defence. Her depression may have caused her to hit him due to her previous bad relationships with men, she may have grown tired of constant abuse and hurt and lashed out as a final resort. Ella will likely satisfy this element.
Role of intoxication and the defence
The law states that this is only applicable as a defence of diminished responsibility if the intoxication is due to an illness such as alcohol dependence syndrome. If the defendant was intoxicated voluntarily and has other mental abnormalities, the defence must prove it was the mental abnormalities not the alcohol that caused the behaviour. The case of RvDowds establishes that voluntary acute intoxication cannot be a defence of diminished responsibility as it is self inflicted. In this scenario Ella could not use intoxication as a defence, she was not intoxicated due to alcohol dependence syndrome, she was intoxicated due to voluntary acute intoxication. Her defence would have to prove that the intoxication wasn't the cause of her actions and that it was the PTSD and depression.
Conclusion
In conclusion, it's likely that Ella will satisfy all elements of diminished responsibility if her case was to be heard in court. It's likely the jury would find her previous violent relationships, and the PTSD and depression she has because of them means she is not fully responsible for the way she retaliated to Harry, it was her mental health issues that played a great cause in this. Ella is likely to be found guilty of Manslaughter by diminished responsibility.
Unlawful Act
The act must be unlawful in a criminal scene. Must be and act not an omission.
Franklin - OLD LAW - a civil wrong could not give rise to unlawful act manslaughter
Lamb - the defendant possessed a revolver. He was joking around with it containing 2 bullets in the barrel and joked around with his friend who did not fear dying because he and the defendant thought that the bullets would not go off when he pulled the trigger. However when the defendant pulled the trigger and killed him. no crime as not scared/no criminal act no manslaughter
Lowe 1973 - The appellant's child died from neglect. The trial judge directed the jury that if they found him guilty of the offence of neglect they must also find him guilty of manslaughter on the grounds that neglect was an unlawful act. The jury convicted him of both neglect and manslaughter.
Dangerous
the act must be dangerous. This is an objective test which was stated in Church - “a sober and reasonable person would realise risk of some harm”
Cause
Factual causation -
But for test (but for the actions of the defendant, would the result have occurred?)
White - The defendant put poison in his mother’s drink intending to kill her (V). However, V died due to an unrelated heart condition and not because of the poison.
Legal causation - Was the defendant the operating and substantial cause?
Medical treatment - will not break the chain of causation if the D is still the operating and substantial cause. Only if the medical treatment is “palpably wrong”.
Smith - stabbed the victim during a fight at their barracks and pierced his lung. Another soldier tried to carry him to the medical station but dropped him twice on the way. He received treatment that was not only inappropriate but positively harmful and he died a couple of hours later.
Jordan - the defendant stabbed the victim (V). However, V’s medical treatment at the hospital was poor. Eventually, V died as a result of the poor treatment, even though the wound was no longer life-threatening.
Victims Response - There are three types of acts of the victim that we will consider: ‘fright and flight’ cases, refusing medical treatment and suicide. There must be some proportionality between the gravity of the threat and the action of the deceased in seeking to escape from it. (Reasonable Response)
Williams - The appellants gave a lift to a hitchhiker and tried to rob the hitchhiker at knifepoint. The victim jumped from the moving car and died of head injuries. (Daftness Test)
Act of a third party - The act of a third party will generally break the chain of causation unless the action was foreseeable. there may only be a break in the chain of causation if the actions of the third party were “free, deliberate and informed”. Only break the chain if it completely overwhelmed the actions of the defendant
Pagett - Using his pregnant girlfriend as a shield, Pagett shot at the police, who were attempting to arrest him for various serious offences.
Thin skull - never breaks the chain - pre-existing injury. You take your victim as you find them which include physical conditions which may make their injuries worse, for example an allergy and their beliefs
Blaue - The defendant stabbed an 18-year-old girl four times when she refused to have sexual intercourse with him. She was a practising Jehovah's witness and refused to have a blood transfusion which would have saved her life. - refusal of medical treatment
Mens Rea for initial act
Law states that there needs to be mens rea for the initial act not the death itself
Newbury - the defendant’s had the mens rea/intent for the initial act, they were found guilty for being engaged in a criminal act initially, even though death was not intended.
Introduction
Unlawful act manslaughter is a type of involuntary manslaughter where the defendant can be liable for a death that was caused unintentionally. In this scenario, the defendant(s) could be the BFG or Mrs Smith, and the victim Agatha as she suffered from the consequences of the unlawful act.
Unlawful act/crime
Firstly, the act that caused the death must be an act, not an omission. An omission is not enough to hold someone liable for unlawful act manslaughter. This was demonstrated in Lowe, as the defendant could not be found guilty due to not wilfully neglecting his baby. His lack of action found him not liable. In this scenario, the BFG is taking part in an unlawful act/administering dreams (drugs) so his act could make him liable for the death.
Dangerous
To establish whether an act is dangerous, we must question whether a “sober and reasonable person” would undergo the same course of action as the defendant. If yes, the defendant cannot be guilty. This was established in the case of Church. In this scenario, we can assume that a sober and reasonable person would not undergo the same actions as the BFG as it was a known criminal act he was committing.
Causation
Factual causation states that “but for the defendant’s actions, would the consequences have concurred?”. This test was used in White, where it was determined the defendant’s actions did not cause the death as the victim would have died anyway. In this scenario, the drugs/dreams administered clearly caused the death of Agatha. However, we must question whether the BFG is the “operating and substantial cause”of the death, a test established in the case of Smith. In this scenario, Mrs. Smith’s failure to close Agatha’s window could make her liable for Agatha’s death. This is due to the fact that Mrs. Smith had knowledge of the doings of the BFG and failed to act accordingly against them. This could break the chain of causation for the BFG as he would not have been able to administer the dreams if her window had been shut.
Mens Rea for initial act
The law states that the defendant must have the mens rea for the initial act to be held liable. This was demonstrated in the case of Newbury, where because the defendant’s had the mens rea/intent for the initial act, they were found guilty for being engaged in a criminal act initially, even though death was not intended. In this scenario, it is clear by the acknowledgement of all parents in the area that the BFG administers dreams, he intended to engage in the dream administration. Mrs. Smith’s failure to close Agatha’s window does not appear to be a consistent act, meaning it could be unfair to assume that she had mens rea for the criminal act.
Conclusion
To conclude, it is likely that the BFG will be held accountable for Agatha’s death as he fulfils the circumstance of having the mens rea to complete the criminal act that caused Agatha’s death. Whereas Mrs. Smith appears to have made an error in judgement that, whilst it certainly played a part in Agatha’s death, was not the cause.
Duty of Care, Breach of Duty that Causes death
Duty of care - Donoghue you owe a DOC to “persons so closely & directly affected by .. my acts or omissions”.
Adomako - doctors failed to check the breathing tube.
Breach of duty - ‘reasonable man’ test (would a reasonable man have acted in the same way?)
wacker case - lorry full of immigrants, forgot to open vents, immigrants died of suffocation.
Cause Death? -
Factual causation -
But for test (but for the actions of the defendant, would the result have occurred?)
White - The defendant put poison in his mother’s drink intending to kill her (V). However, V died due to an unrelated heart condition and not because of the poison.
Legal causation - Was the defendant the operating and substantial cause?
Medical treatment - will not break the chain of causation if the D is still the operating and substantial cause. Only if the medical treatment is “palpably wrong”.
Smith - stabbed the victim during a fight at their barracks and pierced his lung. Another soldier tried to carry him to the medical station but dropped him twice on the way. He received treatment that was not only inappropriate but positively harmful and he died a couple of hours later.
Jordan - the defendant stabbed the victim (V). However, V’s medical treatment at the hospital was poor. Eventually, V died as a result of the poor treatment, even though the wound was no longer life-threatening.
Victims Response - There are three types of acts of the victim that we will consider: ‘fright and flight’ cases, refusing medical treatment and suicide. There must be some proportionality between the gravity of the threat and the action of the deceased in seeking to escape from it. (Reasonable Response)
Williams - The appellants gave a lift to a hitchhiker and tried to rob the hitchhiker at knifepoint. The victim jumped from the moving car and died of head injuries. (Daftness Test)
Act of a third party - The act of a third party will generally break the chain of causation unless the action was foreseeable. there may only be a break in the chain of causation if the actions of the third party were “free, deliberate and informed”. Only break the chain if it completely overwhelmed the actions of the defendant
Pagett - Using his pregnant girlfriend as a shield, Pagett shot at the police, who were attempting to arrest him for various serious offences.
Thin skull - never breaks the chain - pre-existing injury. You take your victim as you find them which include physical conditions which may make their injuries worse, for example an allergy and their beliefs
Blaue - The defendant stabbed an 18-year-old girl four times when she refused to have sexual intercourse with him. She was a practising Jehovah's witness and refused to have a blood transfusion which would have saved her life. - refusal of medical treatment
Serious and Obvious Risk of Death
There has to be a serious and obvious risk of death.
Misra - 2 doctors let patients develop an infection in the wound which was undiagnosed and therefore untreated despite obvious symptoms.
Foreseeable?
but for his actions, she might've survived
Broughton - he gave class a-drugs to his girlfriend after which she died
Gross
Jury decide whether the action was considered Gross
Bateman - “where the negligence of D goes beyond a mere matter of compensation between subjects and shows such disregard for life and the safety of others that it amounts to a crime against the state” - beyond compensation. nothing can explain or compensate for it as negligence was so bad.
Adomako - did the defendant show no criminal disregard?
Intro -
2 statutes; Criminal Justice Act 1988, Offences Against the Person Act 1861 (focus on section 47, 20 +18)
Assault - AR and MR
Causing an individual to apprehend immediate unwanted force intentionally or recklessly.
AR - causing immediate apprehension
Smith - The defendant stared through a window of a private residence. This frightened the owner of the house. It is not necessary to show there must be an immediate threat, just that a threat could be carried out.
MR - intent/ recklessness behind the act
Tuberville - The defendant put his hand on his sword and stated, 'if it were not assize-time, I would not take such language from you'. Assize-time is when the judges were in the town for court sessions. If there's an “if” word can negate the result.
Battery- AR and MR
A direct application of unwanted force intentionally or recklessly.
AR - direct application of unwanted force to the defendant.
DPP v K - A 15 year old school boy took some acid from a science lesson. He placed it into a hot air hand dryer in the boys' toilets. Another pupil came into the toilet and used the hand drier. The nozzle was pointing upwards and acid was squirted into his face causing permanent scars. Force can be applied indirectly e.g. through an object
MR - intent/ recklessness behind the act
Thomas - The appellant was convicted of indecent assault of several minors. One of the convictions was for rubbing the hem of a 12-year-old’s skirt before she pushed him away. Appealing his conviction, the appellant argued that what he did was merely assault, not indecent assault. The slightest touch, even touching clothing, can amount to battery - Any unwanted touching with intent can be battery
47- AR and MR
assault occasioning actual bodily harm.
AR - definition of AR is the level of injury sustained
Miller - he raped his soon-to-be ex-wife without her consent on 3 occasions causing her to develop a hysterical and nervous condition. ABH was defined as “any hurt or injury calculated to interfere with the health or comfort of the victim »
MR - does not specifically contain Mens Rea but has been developed to have the same men's rea for either an assault or a battery.
Savage - Savage intentionally threw beer at her boyfriend’s ex resulting in the victim's wrist being cut. decided that the men's rea for section 47 would be the same as for an assault or battery, meaning the defendant must have acted intentionally or recklessly.
20+ 18 - AR and MR
S.20 - the act of maliciously inflicting a wound or grievous bodily harm, where maliciously means intentionally or recklessly.
S.18 - the defendant is Intentionally causing a wound or GBH or causing a wound or GBH whilst resisting arrest.
AR - both section 20 and section 18 are the same, which is where the defendant causes a wound or grievous bodily harm.
S.20 - Eisenhower - The defendant shot multiple rounds from an air gun at a group of people, of which one airgun pellet hit the victim in the face, which ruptured internal blood vessels near the victim’s eye, causing bruising and swelling. The definition of a wound is a cut or break in two or more layers of the outer skin as the pellet hits the victim near the eye and ruptures an internal blood vessel.
S.18 - Bollom - The defendant injured his partner's 17-month-old daughter with various bruises and abrasions. GBH is considered a really serious harm which can depend on the characteristics of the victim.
MR - different for both section 20 and section 18, as in section 20 it measures whether the act was done intentionally or recklessly and section 18 has to be intention only.
S.20 - Dica - The defendant was diagnosed as being HIV positive and had unprotected sexual intercourse with two women without them knowing. taking a risk and being reckless in passing on HIV to others
S18 - Rowe - he deliberately infected a total of 10 men with HIV during sexual encounters and proceeded to send texts notifying the victims of HIV. Clear the defendant had intention behind the act
Junaid and Oleg are first and second in a queue outside Electrostore to buy a television in the sale. When the doors open Oleg pushes Junaid out of the way. Junaid loses his balance, falls over and cuts his arm. Although he is bleeding, Junaid chases Oleg shouting “I’ll get you – that television is mine!” Junaid catches Oleg and they start to fight. Oleg punches Junaid and breaks his nose. Junaid grabs Oleg and pushes him so hard that Oleg’s ankle is broken when he falls into a display of televisions. The shop manager, Clive, runs over to help. Junaid thinks Clive is going to attack him and hits Clive in the stomach which causes bruising.
Discuss the liability of Junaid and Oleg for any non-fatal offences.
Push | Shout | Nose | Ankle | Bruising | |
|---|---|---|---|---|---|
Assault | X | ||||
Battery | X | X | X | X | |
47 | X | X | X | ? | |
20 | X | ? | |||
18 | ? | ? |
Introduction
The 2 statutes that govern non-fatal offences are the Criminal Justice Act 1988 and the Offences Against the Person Act 1861 which focuses on sections 47, 20 and 18. In this case, the defendants are Junaid and Oleg and the victims are Juniad, Oleg and Clive.
Assault
Assault can be defined as causing an individual to apprehend immediate unwanted force intentionally or recklessly.
Actus Reus
The actus reus is causing immediate apprehension. In the case of Smith, it showed that it is unnecessary to show there must be an immediate threat, just that a threat could be carried out as a man was standing outside of the victims' window looking in. In this case, Junaid may have caused an assault as he shouted at Oleg “ “I’ll get you – that television is mine!”.
Mens Rea
The Mens rea focuses on the fact that there is intent/ recklessness behind the act. In the case of Tuberville, it stated that if there's an “if”, words can negate the result as the defendant said that if it were not assize time he would have carried out the act. In this case, it could be argued that Junaid was at least reckless when he was shouting at Oleg.
Battery
Battery can be defined as a direct application of unwanted force intentionally or recklessly.
AR
The actus reus focuses on the direct application of unwanted force to the defendant. In the case of DPP v k, the defendant put acid in the hand driers so for the next person to be sprayed when they used it. This states that a force can be applied indirectly e.g. through an object. In this case, Oleg pushes Junaid out of the way which means that he directly applied unwanted force. Oleg then punches Julian in the face breaking his nose, which is also directly applying unwanted force after which Julian pouches Oleg causing his ankle to break. When Junaid kicks Clive in the stomach causing some bruising.
MR
The mens rea focuses on whether the unwanted force was applied intentionally or recklessly. In the case of Thomas, the defendant touched girls' skirts inappropriately, even though he didn't touch their skin the fact that he touched their skirts intentionally was sufficient for battery. In this case, when Oleg pushed Junaid it can be at least reckless. After, Junaid “chases” Oleg which implies there is an intent behind his actions. As they both start a fight there is an intent behind their actions. Finally as Junaid “thinks” Clive would attack him there is intent and recklessness behind his actions.
Section 47
Section 47 of the OAPA covers ‘assault occasioning actual bodily harm.’
AR
Whilst section 47 does not define what is meant by actual bodily harm (ABH), the difference between this and a battery is the level of injury sustained. In the case of Miller where the defendant raped his soon-to-be ex-wife without her consent. ABH was defined as “any hurt or injury calculated to interfere with the health or comfort of the victim”. In this case, when Junaid falls and cuts his arm depending on the severity of the wound can determine the factor. This is the same with Oleg’s broken ankle and the bruising. Junaid’s broken nose is serious enough to cause interference with his health and comfort.
MR
Section 47 does not specifically include any men's rea, but this has since developed to include the same men's rea for either an assault or a battery. In the cases of Savage and Parmenter, it was decided that the men's rea for section 47 would be the same as for an assault or battery, meaning the defendant must have acted intentionally or recklessly. In this case, when Oleg pushed Junaid it can be at least reckless as it caused him to bleed. Then they both start a fight. There is an intent behind their actions. Finally, as Junaid “thinks” clive would attack him there is intent and recklessness behind his actions
Section 20 and Section 18 of the OAPA 1861
Section 20 focuses on the act of maliciously inflicting a wound or grievous bodily harm, where maliciously means intentionally or recklessly. Whereas, Section 18 focuses on the cases in which the defendant is Intentionally causing a wound or GBH or causing a wound or GBH whilst resisting arrest.
AR
The actus reus for both section 20 and section 18 is the same, which is where the defendant causes a wound or grievous bodily harm. In the case of Eisenhower, the definition of a wound is a cut or break in two or more layers of the outer skin as the pellet hit the victim near the eye and ruptured an internal blood vessel. In the case of Bollom, GBH is considered a really serious harm which can depend on the characteristics of the victim. In this case. Oleg punched Junaid which caused a break of the skin which is a wound however it does not say how serious the wound was. While for the ankle it may be grievous bodily harm as the ankle was broken after Julian pushed him.
MR
The men's rea is different for both section 20 and section 18, as in section 20 it measures whether the act was done intentionally or recklessly, however in section 18 the mens rea has to be intention only. In the case of Rowe, it was clear that the defendant had intention behind the act and had simply taken the risk of the consequences afterwards because he was sending texts notifying the victims of HIV. However, Dica is an example of the defendant taking a risk and being reckless in passing on HIV to others. In this case, the push may be seen as a section 18 as it was reckless however it would be better to prove it in section 20 as he certainly took a risk.
In conclusion, depending on the severity of the cut and the broken ankle Junaid and Oleg would be successfully convicted of battery, assault, section 47 or section 20. He would be convicted under section 18 if the intent was found.
The order and grading of the offences by seriousness is unclear. Not clear whether grievous bodily harm and wounding are the same or different levels of seriousness.
Intro
Offences Against the Person Act 1861 - old (vocabulary) - uses words that nobody uses today - hard to understand - unclear..
Assault
Ar - Immediately becomes imminent - clarity? What is the time frame for Imminent?
Battery
Mr what is reckless what is immediate
Common assault - actual clarity - confusion with 47 what do we mean when we say the assault
47
Ar - the difference between battery and abh is the injury sustained - what level does it change from battery to abh - clarity. Phycological issues? When does it become it? It is covered but it is hard to measure.
When it was created people did not understand the mental health problems that we have today. - “bodily” not “mental” - undeveloped. HOWEVER, developed because miller - “any hurt or injury” includes mental problems.
Mr - no mens rea - unclear HOWEVER, - developed - Mens rea same as Assault or battery. HOWEVER, - unjust - max sentence is 5 years but battery and assault max sentence is 6 months.
20 + 18
S.20 - unjust - can be charged with s.20 just for a small wound/ cut.
Unjust - s47 + s20 same max sentence even though s20 is meant to be more serious than s47.
Ar - wound defined - clear + developed. AR Same for both. What is the difference in injury? Malicious - shouldn't have used it in both.
Overall - lack of clarity - sentences not varied adequately (intro)
Discuss to what extent the law relating to nfoap has been developed by the judiciary to a satisfactory level
Intro-
Non-fatal offences against the person are governed by the Offences Against the Person Act 1861 and the Criminal Justice Act 2003. Although some issues with the 1861 act have been amended in the 2003 act, there still remains some issues that haven’t been amended in the act or by the judiciary, especially within the language used.
Assault-
One of the ways the judiciary has helped develop the law to a satisfactory level in relation to assault is by relaxing the word “immediate” in the definition. The case of Smith allowed for the use of the word “immediate” to “imminent” which set a precedent for future cases. It has also been seen in Ireland when silent phone calls were classed as assault despite the victim not knowing how far away the defendant was or if the danger was immediate. This has increased justice as it allows a wider range of cases to be classed as assault and it has helped with deterrence as people may now be more aware of what they say and do. These also help to increase punishment and protection. The increase of justice can be seen in a higher proportion of successful assault cases which in turn also helps with deterrence as it shows people that they are more at risk if they are careless with their actions. However, the redefining of the word has also had a slight negative impact due to the lack of clarity that now surrounds it. The relaxing of the word “immediate” to “imminent” has left judges to interpret this their own way which has led to a lack of consistency in sentencing and could be considered unfair to both the victims and the defendants as the lack of consistency can lead to confusion. This could counteract the deterrent caused due to the fact that people may not even understand what the law is and so won’t know what they can and can’t do.
Battery-
Another way that the judiciary has helped to develop the law is through the use of the case DPP v K in which it was established that in order for something to be classed as a battery, the force does not have to be direct. This can help to increase justice, similarly to assault, by allowing more cases to be classed as battery which in turn once again helps to increase deterrence, punishment and protection. Once again, just like assault, this can be seen in the higher proportion of successful battery cases. Furthermore, the judiciary has helped to develop the law on battery even more through the case of Thomas, where it was concluded that force can be touching of any kind, such as clothing. This may help to increase justice as it will allow for more cases that don’t involve the direct touching of skin to be brought before the judiciary and it will help to deter due to the fact that people will be more careful with what they do. An increase in justice will also lead to an increase in both punishment and protection.
Section 47-
However, one way the judiciary has not developed the law to a satisfactory level is in relation to section 47.The inclusion of the word “assault” in the definition could be seen to create more confusion and less clarity which in turn could reduce justice. In the Offences Against the Person Act 1861, the definition of a section 47 offence included the word “assault”, but it was not made clear as to whether this meant the offence of assault or common assault (both assault and battery). The judiciary has not developed this which could result in lack of clarity when interpreting the definition and confusion amongst both the judiciary and the defendants and prosecution. However, the judiciary did develop the statute in relation to the lack of mens rea in the original definition. Originally, there were no words that could be considered the mens rea. However, in the case of Savage and Parmenter, the law was developed to show that the defendant only needed to have intention to harm or could foresee that some harm would result. This could lead to an increase in justice as they only had to have intention to harm or it was foreseeable that harm would occur which may allow for many more section 47 cases to be successful.
Section 20 and 18-
Another way that the judiciary has developed the law in a satisfactory way is the defining of what a wound is in relation to the definition of both section 20 and 18. In the Offences Against the Person Act 1861, it was simply stated that inflicting wound was enough for the actus reus. However, the case of Eisenhower defined a wound as the piercing or breaking of the skin. This made the law a lot clearer and decreased confusion around what a wound actually is which in turn helped to increase justice as judges understand what a wound actually is and increase punishment and protection as the right people are being prosecuted. However, one big issue within the statute that the judiciary has not developed enough is the use of the word “maliciously”, especially in relation to section 18. “Maliciously” represents “intentionally or recklessly” and was established in the case of Cunningham. However, the term “recklessly” directly contradicts the term “intent” from the definition of section 18. This can lead to a lack of clarity and increase of confusion and a decrease in justice as the successful cases will not be consistent. This further leads to a lack of punishment and protection.
Conclusion-
Overall, it appears that the judiciary has developed the law relating to non-fatal offences against the person in a fairly satisfactory way. However, a lot of issues that still remain within the law and from the statutes which have not been developed mean that the law does not appear to be completely developed in a satisfactory way.
Definition (Intro) -
Section 1 of the Criminal Attempts Act 1981 - ‘a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence’.
AR
‘person does an act that is more than merely preparatory’,
Geddes - D was discovered in the boys' toilet of a school by a member of staff. He ran off leaving behind a rucksack, which contained various items, including string, sealing tape and a knife. He was charged with attempted kidnapping. On appeal D's conviction was quashed, because of serious doubts that D had not gone beyond the merely preparatory stage. There was no contact with a potential victim either.
Tosti - Ds attempted to burgle a barn. At around midnight, they were disturbed while examining the padlock on the barn doors when they realised that they were being watched. Held acts were more than merely preparatory (guilty of attempted burglary) the action of checking the lock was more than merely proprietary.
MR
The statute states the D must have had the intent for the specific offence they were attempting. EG - intent or reckless to make unlawful contact for battery.
Murder
only intent to kill will suffice for attempted murder. "The intent becomes the principal ingredient of the crime.”
Whybrow - The defendant wired up a soap dish in his bathroom and gave his wife an electric shock. Consequently, he was charged with an attempted murder.
Theft
Only the intent to steal a specific item or “Conditional intent” - going in because there may be something worth stealing.
Easom - defendant rummaged through the victim’s bag, but didn’t steal anything as he only had the intent to steal something worth stealing.
Impossible
D has attempted an offence that cannot physically be achieved. However, this may still result in a conviction.
Shivpuri - D was a drugs courier who was arrested by the police while transporting bags of white powder believed to be heroin. It had turned out that it was actually not heroin, but vegetable matter. D was convicted of being 'knowingly concerned in dealing prohibited drugs' he really thought he was importing drugs he deserved punishment.
Reckless
If an offence has recklessness as an element then it is possible to be liable for an offence.
Khan - where it was decided that, using the purposive approach that the mens rea for attempted rape and actual rape would be the same as if not, it would be impossible to be convicted of attempted rape.
Thomas is at the beach. There are a number of surfers, and one of them, Richard, has left his surfboard while he goes to buy an ice-cream. Thomas decides to take his surfboard but as he approaches, Richard’s dog starts to bark at him, so Thomas decides to leave the surfboard where it is. Further down the beach, Thomas sees his maths teacher, Mr Smith, who always makes fun of him in class. Thomas picks up a large rock and throws it at him, but at the same time, Mr Smith bends over to tie his shoelace and the rock misses him. Thomas runs off up the beach and sits down in a deckchair. Beside him is Jill who is sunbathing and has left her handbag next to her. Thomas decides to steal her purse, but when he puts his hand in her handbag, there is nothing inside.
Intro
Under section 1 of the Criminal Attempts Act 1981, it states that an attempt is where ‘a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence’.
Actus Reus
The Actus Reus of attempt refers to where a ‘person does an act that is more than merely preparatory’, and the 2 cases that demonstrate this are that of Geddes and Tosti. In the case of Geddes, Geddes was found in the toilets of a school which he had no connection with, with a rucksack which contained a knife, rope and masking tape. However, as Geddes didn’t actually do anything with the equipment, it was seen that he was not ‘more than merely preparatory’. In the scenario, it could be seen that when Thomas picked up the large rock and threw it at Mr Smith, Thomas was more than merely preparatory as he actually threw the rock at Mr Smith. In addition to this, it is also likely to be seen that when Thomas decided to steal Jill's purse, he was also more than merely preparatory as not only did he steal the purse, he also put his hand in her bag.
Mens Rea - Theft
One type of Mens Rea for attempts is that of having the mens rea for theft, and this can be shown through the case of Easom. The case of Easom demonstrates the idea of conditional theft as the defendant rummaged through the victim’s bag, but didn’t steal anything as he only had the intent to steal something worth stealing. In the scenario, it is likely to be seen as difficult to prove whether Thomas had the mens rea for theft when he stole Jill’s purse as he didn’t actually steal anything, but similarly to the case of Easom, it would be seen that Thomas had conditional intent as when he put his hand in her handbag, ‘there is nothing inside’. It could therefore be seen that if there was something in Jill’s bag worth stealing, Thomas would have stolen it.
Mens Rea - Reckless
If an offence has recklessness as an element then it is possible to be liable for an offence. This can be demonstrated through the case of Khan, where it was decided that, using the purposive approach that the mens rea for attempted rape and actual rape would be the same as if not, it would be impossible to be convicted of attempted rape. In the scenario, it could be seen that Thomas could be charged with an attempted battery. It could be seen that the purposive approach could be used as Thomas wouldn’t be able to be charged of an attempted battery if the literal rule was used as a battery is defined as ‘a direct application of unwanted contact intentionally or recklessly’ and therefore has recklessness as an element.
Giving someone permission to do something to you (injury)
It can be a defence to common assault bey not a defence to aggravated assaults
Express or Implied
Implied - In sports there is implied consent to a risk of injury and even grievous bodily harm. unless the injury is grave and committed outside the rules of the game they will be covered by the defence.
Barnes - The appellant was an amateur footballer. He was playing a football match, went in for a tackle and seriously injured his opponent’s leg.
Collins - he was walking away from the police officer. The officer touched him and he scratched him. It was ruled in the civilians favour as he did not consent - we imply for everyday physical contact.
Express - sign/ say you consent
Valid
Consent obtained by violence, fear or intimation is not valid. “Mere submission does not amount to consent.”
Olugboja - Two girls had been offered a lift home from a disco by Mr Lawal. They accepted but instead of taking them home he drove to his home in the opposite direction. tThe girls refused to go in and started walking off He followed and picked up Jayne and drove off and raped her then picked Karen up and took them both back to his home raped her. The appellant told Jayne to take off her trousers. She was crying and compelled out of fear. Jayne did not resist, struggle or scream.
Children are considered to lack the full capacity to understand the consequences of their actions.
Burrell v Harmer - Defendant tattooed the victims, 12 and 13 year old boys and caused actual bodily harm. Victims consented to being tattooed but the court would not allow the defence of consent.
True and informed
Were you given full knowledge of what you were consenting to?
Dica - The defendant was diagnosed as being HIV positive and had unprotected sexual intercourse with two women without them knowing.
Exceptions
Sex -
Brown - Defendants participated in sadomasochistic homosexual activity and no one suffered permanent injury. Defendants argued the acts were consensual.
Wilson - Defendant branded wife’s buttocks with his initials using a hot knife and she needed medical treatment. The Court of Appeal found the branding was not an unlawful act despite the injury caused.
Emmet - The defendant and girlfriend had sex which resulted in haemorrhage to girlfriend’s eye and burns on breast.
High risk sexual activity between a man and a woman had resulted in woman suffering haemorrhages to her eyes and burns on breasts on another occasion. The Court of Appeal held consent couldn’t be a defence. Basis of this was consent cannot be a defence where harm caused is more than ‘transient and trivial'
Sport -
In sports there is implied consent to a risk of injury and even grievous bodily harm. unless the injury is grave and committed outside the rules of the game they will be covered by the defence.
Barnes - Defendant made a late tackle on a player during an amateur game leading to serious injuries.
Surgery -
Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages. HOWEVER, except in cases of emergency where the patient is unconscious and where it is necessary to operate before consent can be obtained. if unconscious best interest of the patient.
Schloendorrf - patient brought a trespass action against the hospital for injuries and unauthorised surgery amputation of several fingers.
Horseplay -
We all consent to horseplay.
Aitken - The appellants were RAF officers and as a practical joke, they had taken to setting fire to officers wearing their fire-resistant clothing. They had done this to two officers and on each occasion, the fire had been extinguished without injury. However, on the third occasion, the officer sustained serious burns.
Death -
Article 2 did not provide the right to die. The courts found the protection of vulnerable citizens was of paramount importance.
Pretty - she was paralysed by motor neurone disease. Her condition worsened which made it impossible for her to move or communicate easily even though her mental faculties remained. She wanted to be able to choose the time of her own death and would need her husband’s help. She took a case to try and ensure if he assisted in her suicide he would not be prosecuted.
Autonomy means - we can do what we want when we want to - choice
Public interest - is what is best for society. Social paternalism – decisions are made for us not by us.
We cannot consent to abh and gbh to each other
Autonomy | Public interest | |
|---|---|---|
Wilson - man and wife let them do whatever they want | Barnes - the choice to play | Collins - don't get a choice who you bump into |
Dica - they can consent to sex but need to know the details of whether they know they have a sti and keeping to themselves and not infirming they partnerIf they don't know of the risk with it | Olugboja - cant consent through fear - protect society | |
Brown - we cannot consent to abh and gbh during sex, homosexuality is bad >:( | Burell - the law says you aren't allowed to get a tattooed at that are - society | |
Schloendorrf - the courts decide what's best for a child | Tobassum - | |
Barnes - very difficult to prosecute sports people. High level to actually prove that you are a criminal | Emmett - | |
Artkin - lack of protection | ||
Petty - you cannot consent yo death |
Discuss whether the law relating to consent respects autonomy or the public interest.
Consent needs to be genuine; this means that even if a victim appears to consent it may not be sufficient. According to Burrell v Harmer age can be a factor as it affects the understanding of children 2 boys got tattooed which caused ABH. The boys consented to be tattooed but the court would not accept the defence of consent and it ruled that children are considered to lack the full capacity to understand the consequences of their actions. This makes the lawn develop to support and respect the public interest. According to Olugboja if a victim consents purely through fear it cannot be seen as consent 2 girls were kidnapped and one of the girls had to watch the other get raped and that caused her to submit to the rapist when it became her turn. It had been decided that there is a difference between real consent and just submission.
Despite genuine consent, a defendant who causes serious harm may still be liable. However, this is very inconsistent making the law unclear as consent can be given in situations where injuries are common. In the case of Atkin defendants who had caused serious harm by setting on fire, the flame-resistant clothing had their convictions quashed on appeal as it was considered horseplay and it is an exemption. This shows that there is a lack of protection as people that commit horseplay could get away with ABH and GBH and even death because it was decided in the case of brown that it is an exception.
A person cannot consent to be killed. This means that even if the patient is on a life support machine and living a worse-than-death life they cannot consent to be killed as it would be opposed by the doctors. According to Pretty, She argued that Article 2 of the European Convention on Human Rights protects the right to life and the right to choose the manner of death. However, Article 2 did not provide the right to die and the protection of vulnerable citizens was of paramount importance. This can be unfair when compared to horseplay where it is and sports when there is a high risk of death but they would still consent to it but someone may not consent to their death when they are living a horrendous life.
Conclusion
General rule - Statute
Section 1 of the Criminal Law Act 1967 - A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.
Reasonable force
Objective - The genuine belief can include delusions resulting from a psychiatric condition. If someone under attack is under stress and therefore may not be able to reason as precisely as in other circumstances this should be taken into account.
Clegg - D, a soldier stationed at a checkpoint in Northern Ireland, fired 4 shots at a stolen car approaching at speed. The 4th shot killed a passenger. D was charged with murder, D argued that he fired in self-defence.
Use of proportionate force (Householder = Dis)
Objective - “A defendant is entitled to use reasonable force to protect himself, others for whom he is responsible and his property”. Will not be regarded as reasonable only where it was “Grossly Disproportionate”
Beckford - D was part of a group of police officers on a raid, D chased V who was escaping. D shot V, D contended V was armed and fired at him, Crown contended he was unarmed and hiding
Must be necessary
Subjective - Judges if the defendant genuinely believed the force to be necessary. Honest but unreasonable mistakes are allowed.
Beckford - D was part of a group of police officers on a raid, D chased V who was escaping. D shot V, D contended V was armed and fired at him, Crown contended he was unarmed and hiding
Pre-emptive strikes
“A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a preemptive strike.”
A-G’s Ref (No 2 of 1983) - the defendant made ten petrol bombs, during the Toxteth riots after his shop was damaged and looted, “to use purely as a last resort to keep them away from my shop”. The expected attack never occurred.
You don’t have to retreat
Failure to retreat when attacked and when it is possible and safe to do so, is not conclusive evidence that a person was not acting in self defence. (Don't have to retreat and be allowed to stand your ground and fight if you want to.)
It is not necessary that the defendant demonstrates by walking away that he does not want to engage in physical violence
Bird - Defendant was at her 17th birthday party and the victim, her ex-boyfriend arrived with his new girlfriend. Defendant and victim argued and she asked him to leave. He did so but then later returned and the argument continued. The defendant threw a drink over him, he pinned her against a wall and she punched him in the face, causing the victim to lose his eye. Defendant claimed that she had forgotten that she had a glass in her hand, which had subsequently broken.
General rule - Statute
?
Reasonable force
?
Use of proportionate force (Householder = Dis)
They have the right to protect their property using force only to a certain level
The terms Reasonable and Disreprorbunate and grossly disproportionate are not defined and will need judicial interpretation when the case comes to court.
Must be necessary
?
Pre-emptive strikes
Clear - they can act to prevent force.
Sensible - don't need to wait till someone stabs you before you can defend yourself.
You don’t have to retreat
?
Discuss whether the rules relating to self defence are fair and satisfactory.
When looking at self defence there is a general rule that has to be followed and considered, this is that the “absolute defence that is based from the evidence gathered that can be applied to the crime that is committed by force.” This rule to begin with can be considered fair but at the same time due to its lack of clarity on what the type of force that has been applied, this can mean that it can lack satisfaction.
Another rule that can be applied to self defence is that of the rule of pre-emptive strikes is that “a person does not have to wait to be struck before they can protect themselves from harm.” The development that this has made in Self-defence since this rule helps to make self-defense more satisfactory in the way that the victim does not have to suffer harm before they can protect themselves from it. This rule also makes it fairer to the victim due to the further protection of not being liable of ABH/GBH if they felt threatened due to the assailant and the victims simply wanting to protect themselves from harm.
One other rule that has been developed through the courts is that the appellant does not have to retreat. This can be seen in the case of Bird when the appellant was in an argument with her ex-boyfriend and was backed against the wall. She was then punched by the ex and she retaliated at this point by punching him in the head with the glass bottle that she was holding, having forgotten that she was holding the item. This caused the victim to lose an eye but when the appellant appealed her sentence it was decided that since before she was punched the appellant had an unwillingness to fight, it would mean there was not good enough evidence for her to retreat. This rule helps it make the rule fairer in the way of self defence and have more satisfactory outcomes for the appellants who did not back down and suffer and the hands of the person that they might have ended up injuring
Conclusion
