- Created by: KomalVyas
- Created on: 25-01-17 11:21
S(39) Criminal justice act 1988 -(R v Ireland/R v Burstow): 'intentionally/recklessly causing V to apprehend immediate/unlawful force'.
AR 1 - AN ACT: Act or words from D cause V fear. (R v Constanza: words are sufficient) (R v Ireland: Silent phone calls)
AR 2 - CAUSATION: - F causation, (R v White). - L causation, operating and substantial cause (R v Jordan: wounds healed wrong injection). - Intervening act: (R v Smith: Original stab caused death). - Thin skull rule: (R v Blaue: refused blood transfusion). - V's own act: (R v Roberts: jumped out of car from being sexually harassed) (R v Williams: unreasonable to jump out of fast moving car)
AR 3 - APPREHEND: V must apprehend fear. (R v Lamb: V didn't apprehend fear so there's no assault)
AR 4 - IMMEDIATE: Must be straight away (Smith v Superintendant: immediacy was satisfied)
AR 5 - UNLAWFUL: Lack of consent of force
MR 1 - INTENTIONALLY CAUSE THE VICTIM TO APPREHEND IMMEDIATE UNLAWFUL FORCE: Defined in (R v Savage). Direct intention: (R v Mohan: desires consequence). Oblique intention (R v Woollin: doesn't desire consequence). Recklessness: (R v Cunningham: D must realise his actions would cause V to apprehend fear)
S(39) Criminal justice act 1988 - (R v Thomas: mere touch to skirt amounts to battery)
ELEMENT 1 - UNLAWFUL PHYSICAL FORCE: Non-consensual contract makes an act an act unlawful. This doesn't include reasonable force, e.g self defence.
ELEMENT 2 - INDIRECT BATTERY: Battery can be committed by an indirect act. (R v Martin: Indirect application of force was sufficient for conviction). (DPP v K: Application of force doesn't need to be directly applied).
ELEMENT 3 - OMISSIONS: Battery can be committed where there's an omission (R v Santana: exposed another to a reasonably foreseeable risk of injury)
MR: Defined in (R v Venna: 'intention to apply force (R v Mohan) to another or recklessness (R v Cunningham) - only required for act of physical contact itself, not harm that may arise'. Transferred malice: (R v Latimer).
Sir Edward Coke: 'the unlawful killing of a reasonable being under the Queen's peace with malice aforethought'.
AR 1 - UNLAWFUL KILLING: Shooting, stabbing etc. Killing is lawful if part of self defence. Omission can be unlawful act. (Stone v Dobinson: voluntary duty)
AR 2 - REASONABLE BEING: AGR no3 states that a foetus isn't a being as it's not born.
AR 3 - UNDER THE QUEEN'S PEACE: Killing must not take part in a war
AR 4 - CAUSATION: - Factual causation, but for test (R v White). - Legal causation, operating and substantial cause of death (R v Cato) - Thin skull rule, take V as you find them (R v Blaue: refused blood transfusion). - Intervening act, (R v Jordan) - Victim's own act, V's act must be reasonable (R v Williams).
MR 1 - MALICE AFORETHOUGHT: Intention to kill or cause GBH. (R v Vickers: intention for GBH was satisfied) Direct intention is the D's aim, purpose and desire (R v Mohan). Oblique intention: Consequence must be virtually certain (R v Woolin)
Defence - Loss of control
Loss of control
S(54) Coroners and justice act 2009: 'Where a person kills another isn't to be convicted of murder if there is a loss of control with qualifying triggers and if a person with similar traits of D would act in the same manner'.
STEP 1 - LOSS OF SELF CONTROL: s(54): loss of control doesn't have to be sudden, but there can't be too long of a time delay for D to calm down. (Ibrams and Gregory: revenge allows time to calm down, defence doesn't apply) (R v Baillie: D still didn't re-gain control after a time delay)
STEP 2 - 3 QUALIFYING TRIGGERS: s(55): 1. Fear of violence from V: Subjective test (Consider D's circumstance) (R v Ahluwalia: no reasonable force, defence fails). 2. Things done or said to constitute to a grave character: Aka anger triggers. 2 part objective test: circumstance was on a grave character. Had a sense of being wronged. 3. A combination of both triggers.
There are also RESTRICTIONS for the 3 qualifying triggers which only apply if the link to the application. They will eliminate the qualifying triggers: 1. Incitement: D deliberately provokes violence (R v Clinton). 2. Sexual infidelity: Finding out your partner has had an affair. 3. Revenge
STEP 3 - OBJECTIVE TEST: Jury will consider whether someone with the same characteristics as D would act in the same way. (R v Camplin)
Defence - Diminshed responsibility
S(52) Coroners and justice Act 2009: 'an abnormality of mental functioning from recognised medical condition which causes substantial impairments as an explanation for the conduct'.
STEP 1 - ABNORMALITY OF MENTAL FUNCTIONING: Defined in (R v Byrne: 'a state of mind an ordinary human would find abnormal) (R v Reynolds: post-natal depression) (R v Ahluwali: battered wife syndrome)
STEP 2 - SUBSTANTIAL IMPAIRMENT: There must be 'more than trivial impairment' (R v Egan) (R v English / R v Ahluwalia: ability to form rational judgement was impaired) (R v Byrne: ability to have self-control was impaired)
STEP 3 - ABNORMALITY MUST BE AN EXPLANATION FOR THE KILLING: Abnormality must be a significant factor towards the killing. Defence fails if D would still have killed without the abnormality. (R v Gittens: depression alone wasn't enough to impair his responsibility) (R v Dietschmann: Depression alone was sufficient) (R v Wood: alcoholism is a recognised medical condition. 'Where a man becomes so drunk that he suffers, temporarily, from an abnormality of mind, he may be convicted on manslaughter by reason of DR)
STEP 4 - BURDEN OF PROOF: D must prove that he was suffering from DR
Defence - Insanity
Criminal procedure act 1991: ' D must prove that he was insane at the time of the offence. If defence is successful, then D is given a special verdict of 'not guilty by reason of insanity'.
M'Naghten rules must all be satisfied to prove insanity:
1. DISEASE OF THE MIND: Any disease which produces mental malfunctioning including brain tumors, diabetes, epilepsy. (Bratty v AG: ' Any mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind') (R v Kemp: Suffered from mental disease)
2 DEFECT OF REASON: D's rationality must be impaired. (R v Clarke: short period of absent-mindedness aren't a defect of mind)
3. DEFENDANT DOESN'T KNOW WHAT HE'S DOING AS A RESULT OF DEFECT OF REASON: If D knew that what he's doing is unlawful, then no finding of insanity can be made. (R v Windle: D knew act was unlawful)
Defence - Automatism
The act must be involuntary: sleepwalking, hypnotic trace, convulsions etc.
STEP 1 - Was the act involuntary? Did the D act without his mind controlling his limbs? (Bratty v AGN: An act which isn't controlled by the mind, e.g spasm) (Broome v Perkins: Evidence that the was consciousness, so defence fails)
STEP 2 - Was there an external factor? E.g. Hit on the head? (R v T: **** constituted as an external factor)
STEP 3 - DIABETES: If a person takes insulin but no food = automatism (R v Quick). If a person doesn't take enough insulin (R v Hennessy)
Unlawful act manslaughter
Unlawful act manslaughter
R v Goodfellow: Where D causes the V's death while intentionally or reckleslly carrying out a criminal act which is deemed to be dangerous.
STEP 1 - UNLAWFUL ACT: A criminal offence, e.g. assault or battery. (R v Lamb: no assault)
STEP 2 - DANGEROUS ACT: (R v Church: objective test: reasonable man foresee the harm) (R v Mitchell: unlawful act wasn't directed at victim) (R v Dawson: V died from fear, no dangerous act) (R v Watson: Jury can decide liability)
STEP 3 - CAUSATION: Factual, but for (R v Corrion: lady wouldn't have died but for firework thrown in bus). Legal, operating and substantial, (R v Kennedy: chain of causation is broken) (R v Carey: original punch wasn't cause of death). Thin skull rule, take V as you find them (R v Blaue).
MR - Only need MR for unlawful act, not death. (Newbury V Jones: D's intended a guilty act, not death) (R v JM and SM: confirmed the ruling in R v Newbury)
Actual bodily harm
Actual bodily harm
S(47) Offences Against the Person Act 1861: 'Whosoever shall be convicted upon any assault occasioning actual bodily harm shall be liable for imprisonment'
AR 1 - ASSAULT: s(47): either assault or battery
AR 2 - OCCASIONING: Occasion means 'causation'.(R v Roberts: V jumped out of car which was a reasonable response). Factual, but for test (R v White). Legal, operating and substantial cause (R v Cato). Act of a third party (R v Paggett). V's own act (R v Williams). Medical intervention (R v Jordan). Thin skull rule (R v Blaue)
AR 3 - ABH: Must be some form of physical/psychological injury. R v Miller: 'ABH includes any hurt or injury which interferes with the heath or comfort of the victim'. (DPP v Smith: cutting excessive amount of hair without consent is ABH). ABH also includes broken teeth, bones, lose of consciousness etc. (R v Chan Fook: psychiatric harm was ABH)
MR 1 - INTENTION OR RECKLESSNESS TO CAUSE V TO APPREHEND VIOLENCE/FORCE: MR for ABH is same as assault/battery in (R v Savage). Direct intention (R v Mohan). Oblique intention (R v Woolin: didn't desire consequence). Recklessness (Cunningham: takes risk).
Grevious bodily harm
S(20) Offences against the person act 1861: 'Unlawfully and maliciously wound or inflict GBH upon a person'
AR 1 - WOUNDING: (JCC v Eisenhower: 2 layers of the skin must be broken)
AR 2 - GBH: (DPP v Smith: gbh is really serious harm) (R v burstow: Psychiatric harm can be gbh) (R v Brown and
Stratton: broken teeth, bones, swelling equal to gbh)
MR - WOUNDING OR GBH MUST BE DONE MALICIOUSLY: (R v Cunningham: reckless as to harm occurring) (R v Mowatt: D must foresee some harm)
S(18) Offences against the person act 1861: 'Unlawfully and maliciously wound or cause GBH to any person with intent will be liable to imprisonment for life'.
AR 1 - UNLAWFUL WOUNDING OR UNLAWFUL INFLICTION OF GBH
MR 1 - Intention only: Direct and oblique will suffice if it's for gbh, not intention to wound. (R v Morrison)
Gross negligence manslaughter
R v Adomako: 'where the D does not intend to kill or cause serious harm, but does so involuntarily'
STEP 1 - DUTY OF CARE AND BREACH OF DUTY: (R v Adomako: Original principle of negligence found in Donoghue v Stevenson: 'whether it was reasonably foreseeable that the V would be injured') (Caparo test) Omission: (R v Pitwood: contractual duty) (R v Dytham: public position) (R v Miller: failure to minimise consequeces) (Stone and Dobinson: voluntary duty) (Statutory duty: laws e.g. wearing a seatbelt).
STEP 2 - CAUSATION: Factual, but for (R v White). Legal, operating and substantial (R v Cato). Thin skull rule (R v Blue) Victim's own act, (R v Williams). Intervening act (R v Jordan).
STEP 3 - GROSS NEGLIGENCE: (R v Bateman: D's conduct wasn't from a proper standard of care) (R v Finlay: D's conduct wasn't enough to amount to gross negligence). (R v Edwards: Parents held for GNS and manslaughter)
STEP 4 - RISK OF DEATH: (R v Adomako: must be a disregard for safety of other'.
STEP 5 - JURY OBJECTIVELY DECIDES LIABILITY
Defence - Consent
ISN'T A DEFENCE FOR MURDER
RULE 1 - GENUINE: Is the consent genuine? (R v Richardson: deception meant that consent wasn't genuine to dental work). (R v Tabassum: there was no true consent to indecent behaviour, they only consented to medical purposed).
RULE 2 - CANNOT DEFEND SERIOUS CRIMES: It can't be a defence to Abh, Gbh, murder or any other serious crimes. Only applied to assault and battery. (R v Brown: consent of the V conferred no defence)
-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------THERE ARE EXCEPTIONS FOR RULE 2:
1. Sporting activities: Players have consented to serious injuries as long as they occur as part of and under the rules of the game. (R v Bilinghurst: the injury was outside the rules of the game). (R v Barnes: Physical injury was an inevitable risk of sport)
2. Rough horseplay: (R v Jones: Consent to rough horseplay is a defence)
3. Surgery, including tattooing and piercing: (R v Wilson: wife's consent was invalid, but the matter was between husband and wife, no it isn't a matter for the court to handle.)