Essay plans - Summary Criminal Law PDF

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CAUSATION AR MUST ESTABLISH VOLUNTARY CAUSATION THABLO MELI – SEQUENCE OF EVNENTS = ALL THE SAME ACT AR – STRICT LIABLITY = NO MR NEEDED ONCE THESE PRINCPLES ARE ESTABLISHED: MOVE ONTO CAUSATION 1) Minimal causal contribution 2) Supervening causes 3) Omission of duty 1. Minimal causal contribution a) BUT FOR causation must be established – R v White b) More than minimal – Maybin (20120) to establish legal causation c) Should the contribution be wrong? Hughes / Taylor suggest yes 2.

are there any supervening causes?  Refusal of medical treatment – HAS TO BE UNUSAL AND EXTRADORDINARY (Blau)  Aggravation of injury – DOES NOT BREAK CHAIN IF D’S ACT STILL SUBSTAIN CAUSE (Dear)  Medical treatment gone wrong PALPABLY WRONG (Jordan) original wound only operative cause (Smith) D’s act must be now insignificant (Cheshire) precluding medical treatment does not suffice (McKechnie)  Injury whilst escaping – is it a daft act (ROBERTS)  Acts of self-preservation – involuntary act of s/p does not break chain (Pagget)  Voluntary acts – breaks chain (Kennedy) in car cases, d1 must be able to anticipate d2’s collision for d1 to be liable (girdler)  WALLACE – euthanasia is chain breakable, act now has to be foreseeable, it is considered a daft act in applying Roberts – this sets a low threshold for the chain of causation to be broken 3. Omission’s Statutory - Road traffic act 1998 Established: - Public role (police = Dythom - Contract – pittwood - Parental responsibility – gibbons and proctor - Marriage – smith – ONLY IN SEVERE CIRCUMSTANCES - Disabled child – Re B Assumption of a duty of care: - Instan – legal obligation created by circumstances - Stone and Dobson – assuming care for v is now an omission not to care - Adomako – you assume it in medical negligence cases Creation of a dangerous situation: - Miller – no liability to involve yourself, but if you create a situation you must take steps to prevent - Evans – if you knew of situation and fail to take steps you have a duty - Airedale v Bland – lawful to withhold treatment but cannot cause death - Innglis – active kill of someone where there is no certainty of death = conviction

ONCE CAUSATION IS ESTABLISHED – THE ACTUS REUS IS MET OF A CRIME MOVE ONTO MR + DEFENCES

Mens REA Intention: highest mens rea Basic intent crimes – recklessness or intention towards actus reus of an offence Specific intent crimes: intention for a specific result beyond mere AR Hyam – Maloney – Nedrick to Woolin test Mathew and Alleyne - Virtual certainly infers intent as a procedural direction not rule of law Gillick – honorable intention means broad definition Reforms: wants to bring about result of events Recklessness: R v G using Cunningham Negligence: Riddell – objective test of knowledge Wilful bindless – Coryzal Grange – is knowledge Strict liability crimes – no MR Sweet v Parsley – MR required otherwise K – sexual offence strict liability Mistaken belief only as defence for basic intent crimes as honestly held Or specific intent – honest mistake. MURDER AR + MR – D AR: 1. 2. 3. MR: 1) 2)

REASONABLE CREATURE – AG no 3 (1994) and CP Under the QUEENS PEACE – Lee Rigby, Page Concision of AR and MR – Thabo Meli+ Church

Intention – oblique or DIRECT Intention to whom? Transferred Malice – Gore Limitations: pembilition, AG no 3 (1997), Gnango 3) What does intention mean? a. Direct – Maloney - the normal sense of the word b. Oblique – Nedrick approved in Woollen –the jury should be directed that they are not entitled to find [rather than infer] the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and that the defendant appreciated that such was the case. i. Subjective and objective elements of this – does it apply? ii. Critics has been received – subjective, virtual certainty, terrorism iii. Gillick - intent should be alike to purpose DEFENCES

LOSS of SELF CONTROL - burden of proof is on D for evidence, P for legal OLD LAW: Duffy test – reasonable man to lose his mind + suddenly NEW LAW: CJA s54

Requirements: 1) A qualifying trigger s55(3) – Law comm recommended S55(4) – cannot be remote (bowyer) or conditional (McDonald) has to be grave (Dawes) mad it is intended to be an objective test (Meanza) 2) The tolerance of normal person - Tolerance is new - Holley overrules Smith – cannot be subjective characteristics - Ahserlemash – vol intoxication is not a characteristic - Rejemanksi – mental disorder only relevant where does not impact on D’s selfrestraint and capacity 3) EXCLUDED FROM DEFENCE S54(4) revenge killings S55(6)(a) self-induced S55(6)(c) sexual infidelity – Clinton (2012) OR DIMINISHED RESPONSIBILITY: OLD LAW: abnormality of the mind – needed modernisation with med NEW LAW: S52 CJA burden of proof on D 1) Did the accused suffer abnormality of mental functioning? a. Byrne – test is would the reasonable person call it abnormal b. Berheran – a judge will not be convinced in jury is not 2) Did abnormality arise from mental condition a. Dowds – vol intoxication does not work as this is a specific intent crime b. Lindo – neither does drugs c. Sears – allows for depression 3) Does it substantially impair? a. Squelch (2017) CA specified Golds (2016) HL ‘more than minimal less than trivial’ into – understanding of nature of act, ability to form rational judgement and ability to exercise control. 4) Did the impairment contribute to killing V? a. Kay (2017) must be established on the balance of probabilities IF ANY DEFENCE APPLIES, D’S CRIME IS REDUCED TO VOLUNTARY MANSLAUGHTER.

UNLAWFUL ACT MANSLAUGHTER: INTRO: Constructive liability – one where the mens rea of a lesser offence sufficer for a liability where a amore serious result endures e.g. murder This liability applied in manslaughter – Harvey (2011) and FOlkes (2011) – ide idea of liability without the expectation Requirements – R v Burrows: (1) Was the act intentional? (2) Was it unlawful?  Franklin – deliberate is not enough  Lamb – has to be criminally unlawful  Lowe – act not omission  Meeking – negligence does not stop criteria being met

3)Was it an act which any reasonable person would realize was bound to subject some other human being to the risk of physical harm, albeit not necessarily serious harm?  Church – reasonable person test  Newbury and Jones – d is does not need to recognize its dangerous  JF – objective test clash with CD subjective test in damage cases  Dawson – reasonable man test  Watson – D is regarded to have personal knowledge of V  Ball – foresight of intention is irrelevant – limiting Dawson (4)Was the act the cause of death?”  Kennedy – s23 OAPA has to not be a voluntary act by V  Corey – no danger if harm unforeseeable e.g. running away whilst being attacked, then stop attacking. If all satisfied – defence held. Reform: need eradicate foresight as unfair on D. MANSLAUGHTER BY GROSS NEGLIGENCE INTRO: 1. D may incur liability by doing any act, lawful or unlawful, in breach of his general duty of care not to injure another, or by failing to act when under a duty 2. “ a very high degree of negligence is required to be proved” Andrews v DPP [1937] AC 576 per Lord Atkin (hence “gross” negligence) 3. The jury decides whether in their opinion the negligence deserves criminal sanction (Bateman (1925) 19 Cr App R 8 per Lord Hewart CJ) 4. The jury can so decide only where they find a risk of death arising from D’s conduct (Adomako [1995] 1 AC 171; Misra [2004] EWCA Crim 2375 – in more recent cases ‘obvious and serious’ risk – eg Rose [2017] EWCA Crim 1168) 1) A duty of care  Adomako – duty of care in medical profession  Holloway – liability extends to these who those who negligently conclude their acts to be safe  Evans – trial judge decides if duty exists  Wacker – not bound by ex turpi causa i.e. if doing an illegal act duty still owed in criminal unlike civil  Willoughby – can be guilty of 1+ manslaughter  Litchfield – can also be guilty of a lesser offence 2+3) degree of negligence and jury’s role  Batesman test – go “beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving of punishment.”  Sellu – jury decides the negligence not an expert. Jury must have sufficient understanding. 4) risk of death  Misria - ,must be an obvious risk of death  Rudling – must be time specific as to the risk of death  Rose – the test is whether the gross negligence is criminal for jury not if the negligence is gross

If satisfied – defence upheld Reform: Age has been considered – should it became a subjective test Law com want carelessness to replace negligence Omission not clear as to its extent e.g. Sinclair. OAPA 1861 INTRO: LOW TO HIGH, STATORY OFFENCE ASSAULT AND BATTERY ASSAULT – S39 CJA AR: Wilcock’s An assault is an act which causes another person to apprehend the infliction of immediate, unlawful force on his person; a battery is the actual infliction of unlawful force on another person  AR – R v Ireland (phone call) R v Constanza (letter) – AS AN ACT MR – if Defendant either intends to put the victim in fear/apprehension or that he is reckless whether he does so  Savage - It is common ground that the mental element of assault is an intention to cause the victim to apprehend immediate and unlawful violence or recklessness whether such apprehension be caused’ Battery: Wilcock’s above  AR: Minimum force suffices: no need to prove injury (Collins v Wilcock [1984] 79 Cr App R 229), can be indirect (Haystead) can be without positive act (R Santana Bermudez) hostility can be considered (B 2013)  MR – same as assault – Venna – only have to prove the risk ASSAULT OCCASIONING ABH – S47 OAPA AR: Miller – Bodily harm in the ordinary meaning  Chan Foook – can include psychiatric injury  Diwhali – does not recognize stress, grief or anxiety. MR: requires proof of assault or battery PLUS a causal link between that and the ABH – R v Savage – only dependent on result, and not actually any difference in MR between Assault in s47 and s39.  “once the assault was established, the only remaining question was whether the victim's conduct was the natural consequence of that assault.” Maliciously Wounding/Inflicting GBH s20 AR: “Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument shall be guilty of [an offence]”  Wound – break skin – Moriaty  GBH – DPP v Smith – v serious injury  Burstow – can be psychiatric injury  R v Bollom – vulnerability of V accounted for  Infliction - inflict’ need not involve an assault/battery. Burstow now says cause and inflict are interchangeable. MR:

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Malicious – means intention/reckless as to injury – Cunningham recklessness: elaborated on below Mowatt - only have to foresee some harm not all harm Parmenter – upheld Mowatt test

Wounding/ Causing GBH with Intent (s.18)  AR: same as s20  MR: Intent to cause GBH (not merely to wound short of gbh – Taylor [2009] EWCA Crim 544) or Intent to resist/prevent lawful apprehension or detainer of a person – Morrison provides malicious to prevent officer.  Maliciousness is not relevant here Consent to harm: When can you consent to harm?  Brown – can consent to summary offence of common assault  Brown – cannot consent to death  Aiken – can consent to horseplay  Coney – not prize fighting cannot consent  Brown – can consent to boxing  Wilson – can consent to burning tattoos  Meachen – if injuries are unforeseeable, no offence  Slingsly – if no mens rea, no issues What constitutes consent? Effective consent  Lack of capacity eg in relation to minors (Burrell v Harmer [1967] Crim LR 169)  Lack of freedom eg in relation to duress or other pressure (McCoy (1953) 2 SA 4, Essentials p229)  Lack of information on which to base a choice (the notion of ‘informed consent’) is a relatively new idea in relation to OAPA Offences (see below)  Richardson - the concept of informed consent has no place in criminal law’. In that case D, a dentist, practiced while under suspension and did not tell her patients. The treatment was ‘of a reasonable standard’. Consent was not vitiated: it was not for the CA to ‘attempt to unwrite the law which has been settled for so long’ What vitiates consent?  Dica – HIV transmission  Konzani – HIV transmission unprotected Consent: need for reform

Non-consensual sexual offences Intro:    

S.1 ‘Rape’ (maximum life) S.2 ‘Assault by Penetration’ (maximum life) S.3 ‘Sexual assault’ (maximum 10 years) S.4 ‘Causing a person to engage in sexual activity without consent’ (maximum 10 years or life if penetration involved)

Rape: s1  AR: penetration must be with Penis – s79(2)  Absence of consent – s74 -s76 S74 – freedom and choice are relative concepts  Bree – intoxication does not stop consent  Doyle – there is difference between reluctance and submission  Hysa – haven’t tackled issues of decorating capacity  Ali – groomed consent is rape  Consent and deception:  Assange – no consent if take off condom without V’s permission  McNally – no consent if lie about gender  Re EB – no rape for deception of HIV, only OAP. S75(9) evidential presumption S75(2) divided into fear based v capacity  D must provide evidence to contrary  R v White – there must be foundation in evidence  Larter – provides protection for those asleep or unconscious S76 conclusive presumptions S76(2) – circumstances  Deception as to nature: Jheeta – has to be to nature not situation  William’s – sex to claiming to help vocal cords, Flattery – oral sex for medical examination  Deception as to purpose:  Jheeta- did not apply as was not purpose of sex  Devenold – masturbation for fake online girl allowed  Tabasm – breast exam Piper – bikini model  Green – told a study into male masturbation but actually for D”s sexual gratification Consent vitiated where the person known personally to V MR: Intention + absence of reasonable belief 1. Intention to penile penetration – R v Heard example. 2. Absence of reasonable belief of consent a. DPP v Morgan – honest belief in old law was enough even if unreasonable b. B eradicates this – belief has to be reasonable as to section 1(1)c of the act. c. Whitta – mistaken identity of V vitiates D rape charge. OTHER ACTS: S2:  AR penetration  Penetration is sexual  Lack of consent by V  MR: intention to penetration  Lack of reasonable belief S3:  

AR: sexual touching - ~R v H including other clothes Absence of consent

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MR: intended touching Lack of reasonable belief in B’s consent

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intentionally causes another person (B) to engage in an activity The activity is sexual B does not consent to engaging in that activity and A does not reasonably believe that B consents.

S4:

CHILD SEX OFFENCES:  S5-8 R v G (2004) strict liability for children u13  S9-16 u16  Similar AR and MR as to the above offences for adults Theft + FRAUD AR S4(1) Kohn Smith Moss Gimbert

D owed V money D stole drugs off V

S5(1) Walker Woodman Turner No2 Bonner Ag No2 (1982) Hall Cooper S3(1) Gomez

Debt can be property for s4(1)TA Illegal property is still property Confidential info is not property Moving the boundary of land is not theft

D had interest in property D took abandoned property D took his car back from garage

If you heavy interest no theft for s5 Theft under s5 Considered theft of his own property even though Meredith cars suggests otherwise Co-owner can steal property

Directors can steal property If property has conditions that D does not meet it belongs to another If D gets property by mistake it must be returned Fake checks to releaser money

Meech Hinks Darroxux

Transferring of money from one account to another which was not D’s account at care home

MR: s2(1) dishonesty – says what is not s2(2) jury test of what is Ghosh Old test of dishonestly

Feely Ivey v Genting Casinos (2017)

Only one of the rights has to be assumed to appropriate under s3 D can steal with consent of owner A gift of valid transfer to another could still be theft Appropriation not allowed where too removed

Did realize that act was dishonest to feely an was the act dishonest to feely Test of dishonestly is the ordinarily decent person D’s state of mind to the current facts AND honest to the ordinary standards of normal people

S6 – intention to permanently deprive Warner Mitchell Scott Cahill Dumped newspapers on someone’s doorstep for practical joke Lavender Steal doors from one part of council property to another Lloyd Vellyum

Borrowing can be intent Dispose means deal with indefinitely Taking back fake refund = indefinite No s6 Convicted as it was sue in a different place For s6 all the goodness/virtue must be gone Replacing object does not stop theft

FRAUD: 2006 ACR S2 AR: S2(5) to machine allowed S2(3) can be express UAE v Allen False – means untrue or misleading s2(2)a MR: Knowing it is false – Augustina Dishonesty – Ivey test Intent to gain/loss – no need for permeance Gilbert- must be a causal link S3: fraud by failure to disclose S4: fraud by abuse of power S11: fraud by gaining services Making off theft 1978 – s3 AR: Carcon – running off without paiying for meal Edwards – petrol paying Robbery TA 1968 – s8 AR: theft AR: threat/force – Robinson and Vindall MR: same as theft MR: V apprehends fear Burglary TA 1968: s9 AR: enters Tresspassers of building

In a fraud case, a representation to the future is not fact

MR: intent to tress pass with ulterior intent S11: gaining services AR: an act D obtained for self Service on P basis MR: not paid Disohonest to act Knowledge that payment of servie should be required S4: abuse of power by fraud AR: abuse by act or omission of pos to V insteresed MR: as fraud above S3: fraud by failure to disclose AR: legal duty to disclose MR: dishonestly Intent to give or lose Handling stolen goods s22 AR: land s34(2)b goods things in action in MR: knowledge and dishonesty CRIMINAL INCPACITY VOLUNTARY INTOXICATION: MAJEWSKI – VOLUNTARY INTOXICATION CAN BE A DEFENCE ON A SPECIFIC INTENT CRIME AND NOT A BASIC INTENT CRIME CRITISICISM: 1) INTOXICATION BECOMES A FORM OF RECKLESSNESS 2) MENS REA WILL ALWAYS HAVE TO BE SPECIFIED 3) TAKES A CONESQUENCE APPROACH AS TO SPECIFIC INTENT AS OPPOSE TO PURPOSE Exception – Dutch Courage rule – Gallagher for specific intent crimes NON DANGEROUS ACTS TOWARDS INTOXICATION: BAILEY – low blod sugar is an external factor. In basic intent crimes, it is test of forseablility. In specific intent, it msut be provided the nrormal way. HARDIE – D’s mens rea for non-dangerous intoxication regarding basic intent recklessness is to recklessness in taking the drugs, not into the consequences and effect sof the drug. INVOLUNTARY INTOXICATION – Kingston – normal Ar +MR – D applies.

INSANITY: MCNAUGHTON RULES Disease of MInd Sullivan D, a man of ‘blameless reputation’, suffered (1984) from epilepsy and, during a seizure, kicked V who went to his aid

Diseases does not have to be specified for a length , only has to occur at the particular time the

Kemp (1957)

D was a loving husband suddenly and for no apparent reason attacked his wife with a hammer, it was then found that he was suffering from hardening of the arteries, but one that affected his power of reasoning.

QUick (1973)

Hennesry (1989)

Burgess (1991)

While D was sleepwalking caused violence, medical evidence D had a sleep disorder, but the doctors also said it was highly unlikely to ever result in violence again. Defect of reasoning:

Clarke (1972)

Mrs Clarke was under stress suffering from depression. She went to buy some groceries from the shop and left without paying. Her defence was that she had not meant to do tha...