- Created by: Leahc1997
- Created on: 27-05-14 17:12
Introduction to Criminal Law.
This is the 1st topic in unit 2 of AQA AS law.
What is crime made up of?
> Actus Reas - The physical part of a crime/ what the D does.
> Men Reas - The mental part of the crime/ D's intention or recklessness.
> Causation - The D's conduct must actually cause the result.
- Actus Rea can be an act/ omission or state of affairs.
- The D's act or omission must be voluntary, the D must have complete control over his conduct. If the D had no control over what he's doing then he can't be guilty of a criminal offence.
Example Case: Hill V Baxter (1958): Courts give examples of when a driver isn't in control of their vehicle. Bee's in car/ Being hit on head/ loosing consciousness.
Omissions --> Actus Reus
- The general legal rule is that a D's failure to act will not normally make him liable for a crime.
- This was explained by Stephan J (19th centuray): "A sees B drowining & is able to save him by holiding out his hand. A does not do this so that B may be drowned. A has commited no offece."
- There are 5 exceptions to this rule...
1) A contractual duty: Example case: Pitwood (1902): The D failed to shut the crossing gate, the V was hit & killes by a train. Held: The D was guikty because it was his job to close the crossing gates.
2) A duty b/c of relation ship: When theres a relationship b/t D & V - usually child & parent. Example case: Gibbins & Proctor (1918): The D's mistress failed to feed the D's young daughter & as a result she died. Held: They were both guilty of murder due to their ommission.
3) A duty which has been taken on voluntarily: Where the D has accepted a duty of care to look after someone else in someway. Example case: Stone & Dobinson (1977): Stone's eldery sister came to live w/ them she became ill & unable to care for herself. She died. The D failed to look after her & didn't seek any help. Held: They were convicted of manslaughter they took on the duty of care when they allowed her to live w/ them & yet failed to get any help of any kind.
Omissions (2) --> Actus Reus
4) A duty through one's official position: Where the D holds an official position such as a public office he may be bound to act in a particular situation. If he doesn't then he's breached his duty.
5) A duty which arises b/c of the D has set a chain of events in motion: Example case: Miller (1983): The D was a squatter who fell asleep w/ a lit cigerette which caught fire. When the D woke up he didn'e attempt to put out the fire or get help, he just moved to another room. Held: The D was guitlyof arson.
Dcotors Duties --> Actus Reus
- Euthanasia is not legal but if it's in the best interest of the patient then medical treatment can be stopped even if the paitent will die as a result.
Example case: Airedale NHS Trust V Bland (1993): The paitent had been in a 'persistant vegitative state' for over 3 years & showed no signs of recovery. The doctors were allowed to switch off the life machine.
Example case:Jodie & Mary case: Involved the seperation of conjoined twins who wouldve both died if they hadn't been seperated. However w/ the opp Jodie would've been able to live a normal life but mary wouldve died instantly. Held: It was better to gove Jodie a chance at life then let them both die quickly,so the opp was allowed.
State of Affairs --> Actus Reus
- It is impossible for the D to be convicted of a criminal offence if they weren't in control of their actions.
Example Case: Larsonneur (1933): The D had been ordered to leave the UK, she went to the republic of Ireland but was deported back to UK even thoufh she didn't want to be. When she landed she was immediately cahrged with 'being an alien to whom leave land in the UK had been refused'. Held: She was convicted it did not matter that she was forced to return to the UK.
- Intention: "A decsion to bring about... the prohibited consequence whether the D desired it or not"
- Defendant's motive & reason for his conduct is irrelevant it;s about their defision to do it regardless.
Foresight of Consequence --> Mens rea
- Where the D's main aim was not the prohibited consequence but in achieving this he foresaw that the prohibited consequence could occur & that there was risk of it through their conduct. This is 'Foresire of consequence'.
Example case: Woolin (1998): The D lost his temper & threw his 3 month old baby towards it's pram which was 3-4 feet away. The child hit the wall & suffered serius head injures which lead to death. Held: If the consequence was a virtual certaintinty & the D realised this then this is evidence for the jury that the D intended the consequence.
More recent example case: Mathews & Alleyne (2003): The court held that if the result was fairly virtually certain & the D realised it then the jury can assume recklessness. This involves the D taking an unjustifiable risk & the prosecution must prove that the D realised/ foresaw the risk but took it any way.
Example case: Cunningham (1957): The D tore a gas metre from a wall to steal the money it contained, gas seeped into a nearby house causing injury to the occupants. The D was charged w/ 'malicisouly admineresting a noxious thing". Held: The D had not intended to cause the injury he didn't even realise there was a risk of it. He was not guilty.
Transferred Malice --> Mens Rea
- The D will be guilty if they intend to commit a particulat type of crime aginst a person but actually affect a different person instead or aswell.
Example Case: Latimer (1886): The D aimed a blow w/ a belt at a man during a fight in a pub, the belt bounced off the man & also hit a woman in the face. Held: The D was guilty of assault against the woman even though he didn't intend to hit her.
- Where the D intends a particular crime but ends up commiting something completly then the D may not be guilty.
Example case: Pembilton (1874): The D threw a stone at some people who'd been fighting, the stone missed & broke a window. Held: The mens rea for assault couldn't be transferred to the property.
Continuing Act Theory - Mens Rea
- Where the D is commiting the Actus Reus & Mens Rea occurs the D will be guilty.
Example Case: Fagan (1968): The D accidentily parked his car on a policemans foot, once he relaised this he then refused to move it. Eventually the D did move his car. Held: Once the D obtained Mens rea he was guilty b/c he'd already commited the Actus Reus of parking on the policeman's foot.
The contemporaneity Rule --> Mens Rea
- The general rule is that Actus Reus & Mens Rea must be present together for there to be a criminal offence. This is the 'coincidence of actus reus & mens rea'.
Example case: Thabo Meli (1954): The D had killed the victim they had lured him to a remote place 7 severly beat him. They thought he was dead so they rolled him down a cliff, the D infact died of exposure at the bottom of the cliff. The D's argued that they couldn't be guilty beacuse mens rea had occured a long time before death. The V was alive when they left him so they hadn;t commited the Actus Reus of murder. Held: The D's conduct in beating & leaving the V were all part of the same plan & action. They were guilty.
Causation --> Mens Rea
- The D's conduct must cause the result suffered by the V.
- The prosecution must prove...
> The D's conduct was the factual cause.
> The D was the legal cause.
> There was no intervening act that couldv'e broken the chain of causation.
Factual Causation --> Causation --> Mens Rea
- Proven by the 'but for test', vur for the D's actions the resutl wouldn't have occured.
Example Case: White (1910): The D put cyanide in his mother's tea but before it could take effect she died of a heart attack. Held: The D couldn't be guilty of murder b/c he didn't cause her death. He was instead found guilty of attempted murder.
Example Case: Pagget (1983): The D used his pregnant gf as human sheild while he shot at police. The police had no choice but to shoot back killing both mother & child.
Causation in Law --> Causation --> Mens Rea
D's conduct must be more than the minimal cause of the result suffered by the V. - This is the 'Deniminis Rule'. There could be more than one factor contributing to the result. The D's conduct must be the major cause.
Chain of causation --> Causation --> Mens Rea
The D won't be liable if an act/ conduct of another person breaks the chain of causation. A break in the chain = 'Novus Actus Inteveniens'.There'll only be a break in the chain if it's sufficiently serious.
The chain can be broken by the act of a 3rd party/ the Victims own act or A natural/ unpredictable event. Medical treatment very rarely breaks the chain.
Example case: Smith (1959): 2 Soilders had a fight, the V suffered a punctured lung do to being kicked by the D. The V was dropped twice from the stretcher & recieved negligent treatment & died. Held: The orgional D was held liabel for the death b/c the wound that the D caused was the substantial cause of the V's death.
Exampel case: Cheshire (1956): The V had ben stabbed by the D & was recovering well in hospital. A doctor gave the V some antibiotics to which he was allergic so they drug was cancelled. The next morning the V was giving a large dose of the same drug. The V died. Held: The negligence of the hospital broke the chain of causation, the D wasn't liable for the death b/c the hospitals negligence was so serious.
Chain of causaion (2) --> Causation --> Mens Rea
Example case: Malchore (1981): Doctors turning off a life support machine doesn't break the chain of causation, the D will be liable where he puts the V in a position where he has little or no hope of recovery.
The victim's own act: If the D causes the V to react in a forseeable & reasonable way, then the D is a liable for any injury suffered by the V. Example case: Roberts (1971): The V (16 y/o female) jumped out of the D's car after the D tried to sexually assault her. She suffered serious injuries.
If the V reacts in a unreasonable way, this breaks the chain of causation & the D isn't liable. Example case: Williams (1992): The V (male hitchhiker) jumed from the D's car b/c he thought the D was going to steal his wallet. The V died after hitting his head on the curb. C.O.A Held: Was the V's conduct "w/in the limit of reasonable & not so daft as to make his own voluntary act one which amounted to a Novuc Actus Interveniens". The D wasn't liable for the D's death.
The D is guilty purely b/c he did or was responsible for the Actus Reus of the offence. Mens reas isn't required.
Strict liability offences...
> It's often difficult for judges to decide if an offence is one of strict liability or not.
> If an act of parl conrains word which suggest that mens rea is required then it is not a strict liability offence but this is rare.
The presumption of mens rea:
- Where an act doesn't contain any words suggesting mens rea the courts will start by presuming that mens rea is required for that particular offence.
Example case: Sweet V Parsley (1970): The D hadn't let her house out to students who had been smoking cannabis, she had no knowledge of this & the act doesn't specifiy wether mens rea is required. Held: The D was found not guilty b/c she doesn't have mens rea.
Strict Liability Cases
Harrow London Borough Council V Shah (1999): The D's owned a local shop that has sold a lottery ticket to a 13 y/o w/o asking for ID. Even though there were signs up in the shop & staff were told not to sell them to under 16's.Held: The D's were found guilty b/c mens rea wasn't required & the act of selling thr ticket was enough to commit an offence eben though they didn't intendt to & had took steps to prevent it.
R v Blake (1996): The D operated a pirate radio station which arried a risk of interfering w/ the emergnacy service radio signals. The D didn't know he was doing this. Held: The D was guilty, no mens rea was needed the threat to the emergancy services meant the D's intention or recklessnessis irrelevant.
Alphacell Ltd V Woodward: The factory owner was convicted of causing polluted matter to enter a river b/c of a pipe w/ a blockage. The D was unaware of the pollution, it wasn't because he was negligent. Held: It was a strict liabilty offence - no mens rea was needed the D was guilty.
Advantages of Strict Liabilty
- These offences exit to help protect the public & the enviro in terms of health & safety. The laws thinks this is more important than if an individual is blameworthy or not.
- Strict Liability encourages higher standards of hygiene for the processing & selling of food.
- In practise SL saves court time & money through not having to prove D's intention or reckless.
- The D's lack of blameworthyness can be refelcted when sentencing teh defendants. D's do no usually go to prison, it normally involves fines for companies.
Disadvantages of Strict Liability
- Individual people who aren't technically blameworthy are found guilty in criminal courts & recieve criminal convictions even when all possible precautions have been taken.
- These D's will also recieve fines, sanctions & possibly even prison sentences.
- Alphacell Ltd V Woodward shows this.
Offences Against The Person
The second topic in Unit 2 As AQA law.
Non Fatal Offences
- Common Law Assault
- Common Law Battery
- Offences Against The Person Act (1861)
> Section 47: Assault Occasioning ABH
> Section 20: Wounding or Inflcting ABH
> Section 18: Maliciously wounding or causing GBH w/ intent to resist or prevent the lawful dentention of any person.
Common Law Assault
Lowest form on non fatal offence, there is no statutory defenition instead it has been developed by cases over the years. The D must put the V in fear of immediate unlawful force against them.
Actus reas: The D must comit an act or say some words. No physical contact is needed - threat w/ knife or gun/ silent phone calls or verbal treats.
Fear of violence: There is no offence if it's obvious that the D couldn't use any force or violence. E.g: Pointing a gun at the V when the V knows it isn't loaded. Where the victim doesn't fear violence there is no offence. Example case: Ireland (1998): Court suggested that the D saying "come w/ me or i'll stab you" to a female V in a dark alley is likely to result in assault.
Violence must be capable offoccuring in the imediate future. Example case: Smith V Chief Constable of Woking: The D entered through private land & looked though the v's bedroom window. The V was terrified & thought the D was going to enter her room which was enough for assault.
Example case: Haystead (2000): The D caused a child to fall to the floor by punching the person holding it. Held: The D was charged w/ battery b/c battery can occur through continuing acts.
Common Law Assault (2)
Example Case:Fagan (1968): D parked car on policeman's foot & then refused to move it.
Mens Rea: D must intend to apply unlawful physical force to another or be reckless in causing such force. The D's recklessness will be sibjectively tested, the D must realise that their condict risks the V being subjected to that unlawful physical force.
Words as assault: Example Case: Ireland (1998): The V suffered silent phone calls & feared violence this was enough for assault. Held: D was guilty.
Negating Words: The D's words mean there was no assault even if at first sight it appeared that there might be. Example Case: Tuberville & Savage: Savage had made some insulting comments to Tuberville. In response, Tuberville grabbed the handle of his sword and stated, "If it were not for assize-time, I would not take such language from you." Savage responded with force, causing Tuberville to lose his eye. Tuberville brought an action for assault, battery, and wounding, to which Savage pleaded provocation, to-wit Tuberville's statement.
Mens Rea: The D must intend to to cause fear or to apply unlawful physical force to another or be reckless in causing such force.The D must realise that their condict risks the V being subjected to that unlawful physical force.
Common Law Battery
The D's intentionly or recklessly application of unlawful force to another. Only the slightest touch is required.
Amounts to Battery: Actus Reus - Direct application of unlawful force is the most obvious form of offence. Battery can also be an indirect act. Example case: DPP V K (1990): A 15 year old school boy took some acid from a science lesson. He placed it into a hot air hand drier 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.
Section 47: Assault Occasioning ABH
Its an offence under the Offences Against The Person Act 1861. For the Actus Reus there must be an assault or battery & this must cause actual bodily harm. Actual bodily harm is ' any hurt or injury calculated to interfere w/ the health or comfort of the victim'. This is vauge & covers many injuries from scratches/bruises to a broken finger. It also includes psyciatric injury.
Example case: DPP V T (2003): The V was chased by D & fell down then was kicked by D. This caused the V to loose consciousness. Held: The loss of consciousness even if only for a brief moment is classed as ABH. Mens rea: The D caused an apt level of harm to the V.
Example case: Ireland V Burslow (1998): Psychiatric injury to the V when she recieved silent phone calls from D. Held: D guilty of GBH. Mens rea: The D must intend to subject the V to unlawful physical force or be reckless in doing so. This is the same as common law assault & battery.
Example case: Savage (1991): The D intended to throw beer over 1 woman, the glass slipped & caused cuts to V's hand. The D didn't intend for this to happen & didn't realise the risk of it happening. Held: The intent to throw the beer was enough for mens rea.
Section 20: Wounding or Inflicting GBH.
Wounding: Requires break in teh continuity of the skin as a whole which is deeper than a cut/graze.
Example case: JCC V Eisenhower (1983): The V had been shot in eye w/ pellet gun which caused severe eye injuries & internal bleeding. The D was charged w/ wounding under S.20 but couldn't be guilty b/c there was no break in the skin. The D should've been charged w/ GBH.
GBH: The word 'grevious' means 'really serious' as decided in Smith (1969. Harm doesn't need to be life threatining it can also be psychiatric.
Example case: Bollom (2003): Sever bruising on a 17 month old was held to be GBH b/c children bruise more severly than adults.
Biological GBH: Example case: DICA (2004):The D had unprotected sew w/ 2 women but failed to tell them he had HIV. Both women contracted the illness. Held: Biological GBH. Men rea: The D must intend to do some harm or be reckless in dong so.
Example Case: Parmentes (1991): The D injured his 3 month old baby when throwing him in the air & catching him. The D stated that he'd done this w/ older children & didn't realise the risk of any harm. Held: The D wasn't guilty of s.20 but was guilty of s.47.
Section 28: Wounding/ GBH w/ intent/ Resisting Arr
The only diferenct b/t s.18 & s.20 is inent, s.18 doesn't allow for recklessness. Foresight of consequences applies where the D realises their conduct is virtually certain to cause GBH or a wound then they're guilty.
- Common Law Assault: 5 years
- Section 47 ABH: 5 Years
- Section 20 Wounding/GBH: 5 Years
- Section 18 Wounding/GBH W/ intent: Life
The third topic in Unit 2 AS AQAA law.
Classification of offences
Summary Offences: Least serious/ Heard in mags court/ Shoplifiting or Littering
Indictable Offences: Most serious/ Heard in crown court/ Murder, manslughter or ****.
Triable Either Way Offences: Middle range offences/ Heard in cown or mags court depending on seriousness/ pre-trial procedure determines which course case is heard in/ Theft ABH depending.
Charge or summons
1) Summons: It's a doc sent by post & it sets a date when the D must attend court. It's used for very minor offences such as driving offences or common assaults.
2) Charge: Made were the D has been by the police. The matter is investigated & the D may have been interviewed. A charge is made verbally by the police.
- This is where the suspect is released until the next stage of the case.
- The police may give bail...
- While they make further inquiries.
- Before the suspect is due to appear in court.
- The police may arrest a person who fails to appear in court on the time/date requred.
- The police may impose bail conditions...
- Surrendering your passport.
- A curfew or exclsuion requirement.
- Requirement that the suspect appears at the police station at regular intervals.
- If the police refuse bail the suspect must be taken before the magistrates court as soon as possible for a final decision to be made. The suspect will either be given bail or remanded in custody until the next court hearing.
The Bail Act 1976:
There's a presumption of bail, a suspect has the right to bail which will be granted unless there are good reason not to (s.4).
Baill won't be granted if the court has substantial grounds for believing that when they're released the D will...
- fail to surrender to custody
- commit another offence
- interfere w/ witnesses or otherwise obstruct the course of justice
- the defendant may be able to remanded for his own prosecution
Factors for the court to consider when deciding whether grant bail:
- The nature & seriousness of the crime
- The charecter, past records associations & community ties of the D.
- The D's past records in meeting bail requirements.
- Where the D has been charged w/ an offence not punishible by imprisonment. Bail will only be refused if the D has previously failed to surrender or if there are reasonable grounds for beliving that the D would not surrender on this occasion.
- Bail conditions: Surrender of passport/ reporting to the police station/ curfew or exclsuoin requirement/ residence requirement.
Bail Act (2)
Sureties: Another person promises to pay the court a sum of money if the D breaches his bail conditions especially if teh D fails to attend court.
Restrictions on bail:
- Where the D is charged w/ murder, ****, attempted murder or **** & the D has already served a custodial sentenced for any of these the bail won't be given unless theres exceptional circumstances.
- If the D was already on bail for a different offence when he commited the new offence he'll be refused bail unless theres little or no chance of them reoffending.
- Bail was refused where a D tested positive on an A class drugs related offence.
Crown prosecution service:Organisation: DPP = Head of crown prosecution who must serve as a lawyer for at least 10 years. The DPP is appointed & supervised by the attourney general. Each geographical area is divided into branches w/ each being headed by a senior district crown prosecution. W/in branches are lawyers & support staff who work in teams on cases.
Function: Criminal procedure deals w/ aspects of prosecution including...
- Deciding on what offences should be charged.
- Reviewing all cases to proceed & whether its in the public interest to do so.
- Being responsible for the case after the police hand it over.
- Conducting the prosecution of cases in the mags & crown court.
Plea & sending for trial:
- Some cases can be dealt w/ on 1st instance, e.g: where d pleads guilty immediately.
- Sometimes an adjournment is needed. Where more time is needed for the criminal procedure to gain more info or because the D wants to gain legal aid. Even when D pleads guilty an adjournment may be needed in order for a pre-sentance report to be done.
- Where the D pleads not guilty an adjournment is usually neccesary . The trial will have to be prepared including gathering witnesses.
Either Way Offences:
- Plea before venue:
- Plea before venue only applies to either way offences.
- If the D pleads guilty the D has no choice which court his case is heard in. He may be sentenced in either court according to the mags decision.
- Mode of trial:
- If the D pleads not guilty the mags must carry out 'mode of trial' to decide which court the case is heard in. The mag must 1st decide if they have the jurisdiction to hear the case based on their own powers of sentencing, the nature & seriousness of case.
Plea & sending for trail (2):
- The D's election:
- If the mags decide they don't have the jurisdiction then the D is told he has a right to be tried by a jury.
- There is a right for the D to be tried by his peers.
- Advantages of chosing crown court:
- Statistically the D is more likely to be acquitted; juries are seen as being more understanding than judges b/c they bring a balance of opinion & are fearful of sending an innocent person to prison.
- Judges in the crown court are more likely to discharge a case or advise jury to acquit the case based on legal consideration. (Mags don't have the legal knowledge).
- The D will be represented by a barrister rather than a lesser qualified solicitor.
- Disadvantages of chosing crown court:
- It can take a long time for a case to come to court; this can especially problematic if the D is on remand.
- Crown court trial takes far longer than mags trial.
- Crown court trials are more expensive than mags case.
- Crown courts have mush higher sentencing higher powers.
Plea & sending for trial (3):
Plea & case managment hearing (Either way):
- The hearing is done where teh case is to be sent to the crown court for trial & this is heard before a judge.It is to mkae sure that all preperation is being done to be ready for the trial.
- The D will be asked for a plea.
- If guilty the D will be sentenced.
- If not guilty the prosecution & defence must provide witnesses, documents & exhibits & an any points of law they wish to raise.
Indictable Offences - Pre-trial offences:
- The early administrative hearing is done in the mags court which deals w/ matters such as bail applications & legal aid. The case is then immediately sent to the crown court.
- Plea & case management hearing - All pre-trial matters are dealt w/ by a judge at the crown court in the same way as either way offences.
The burden & standard off proof: A person is innocent until proven guilty 'beyond reasonable doubt'. The judge must direct teh jury that they should only convict the D if they're sure of their guilt.
The fourth unit in unit 2 of AQA AS law.
Types of sentancing:
- Custodial Sentencing
- Comunity Service
- Imprisionment under Criminal Justice Act 2003 A custodial sentence musn't be passed unless the offence "was so serious that niether a fine alone nor a community sentence can be justified".
1) Mandatory Sentence:
- For murder the only sentence available to the judge is life.
- The judge may state the minimum number of years teh D must serve before being eligiible for parole.
- The starting point for a minimum term in a life sentence is 12 years; the maximum may conflict w/ human rights legislation.
2) Discretionary Life Sentence:
- The Max sentence is life though the judge need not give this. The judge may give a lesser sentence if it's appropiate in the circumstances it may not even be custodial.
3) Fixed term sentences: This is imprisonment for a set number of months or years. Prisoners are automatically released after serving half their sentance.
4) Suspended sentece: A D will recieve a suspended sentance for up to 2 years. It means they don't actually go to prison, if the D re-offends during this time the prison sentence will be come activated & the D will be sentenced for the new offence too. Suspended sentencing are given where the offence justified prison but there where exceptional circumstances that made prison in appropriate.
s.17 CJA (2003) says community orders can include unpaid work/ prohibited activity requirement/ curfew requirement/ supervision requirement.
Unpaid work requirement: The offender is required to work for b/t 40 & 300 hours on a project organised by the probation service. The exact no of hours will be fixed by the court & are usually completed in 8 hour sessions. Offenders will work on painting school buildings , building play areas & conservation work.
Prohibited activity requirement: A wide variety of the D's behavoir &/or activities can be prohibited. The objective is to prevent the D from another offence of the similar kind. Examples may include wearing a hoody carrying items like paint or die.
Curfew requirement: The offender must remain at a certain adress for b/t 2 & 16 hours in any 24 hour period. This order can last for up to 6 months. Monitoring of curfews may be done by spot checks.
Supervision requirement: The D is placed under supervision of a probation officer for up to 3 years set by the court. The D must attend appointments w/ the supervising officer or any other person as decided by the court.
- Fines are very common in the mags court where the max fine is £5000.
- The mag can also give a fine for up to £20,000 for businesses who breach health & safey regs.
- Fines are less common in the crown court because theres no upper limit on them.
- Absolute discharge
- No penalty is imposed on the D.
- Fines are used when the D is technically guilty but wouldn't be considered blameworthy.
- Conditional discharge:
- The D is discharged by the court on the condition that he commits no further offences for a period of up to 3 years as decided by the court.
- If the does offend again then he may recieve a harsher sentence as well as a new sentance for the new offence.
Aims of sentencing
1) Retribution & punishment: The D is considered to deserve punishment for their actions, the sentence must be proportionate to the offence. This potentially gives the V & society a sense of justice.
2)Detterence: Individual detterence is intended to ensure that a D doen't reoffend by being afraid of punishment. The D would recievea harsher sentence than normal. The general detterence is aimed at preventing other potential offenders from committing crime.
3) Reform & rehabillitation: The aim is to reform the D & alter his behavoir so that he can be placed back into society as a law obiding citizen.
4)Public Prosecution: Lenghty prison sentences are used to protect the public from dangerous criminals that are likely to cause harm.
5)Denounciation: The sentence will indicate to the D society's dissaporval of their crime. It also reinforces moral boundaries of acceptable behavoir & forges social views on criminality.
6)Reparation: The D is required to compensate the victim to make amends for the crime. This could be the payment of money or through the return of stolen goods.
Factors of sentencing:
When deciding on a sentence the court must consider the offences, sentencing guidelines & the offender's background.Aggrivating factors: The D is likely to recieve a harsher offence if he satifies S.143 of the CJA 2003...
- Previous convictions for similar cases
- The D was on bail when he commited the offence
- Hostility towards sexulaity or disability was involved in the crime
- The V was vunerable
- The v was serving the public whilst attack
- The crime was premedetated
Mitigating factors: The day may recieve a lighter sentence than usual, reasons for this can include...
- The D fully co-operated w/ the police during the investigation
- The D is mentally or physically ill
- The D has no previous convictions
- The D is genuinly remorseful
- The D is a young single mother
Factors of sentencing (2):
Reduction in sentence for guilty pleas:
- If the D pleads guilty at 1st oppurtunity his sentence is cut by a third.
- A guilty plea made after the trial has begun give a reduction of one tenth.
- If the D pleads guilty at the first oppurtunity but theres overwhelming evidence against them then there can be a reduction of 20%.
- Concerns his previous convictions if the D has similar previous convictions then this can be a aggrivating factor.
- The probation service will often have to produce a pre-sentence report in bringing an appropriate sentence. This may include medical evidence in addition.
Tort of Negligence
The last topic in unit 2, AQA AS Law.
Liabilty & elements of negligence:
A person is liable if they owed a duty of care/ if they breached they duty/ if that breach caused damage or harm to the V. A claimant must prove all of these.
Tort = Civil Wrong Claimants bring claims against Defendents b/c they're the V of the D's negligence.
Elements of negligence:
- Duty of care
- Breach of duty
Duty of care
- The modern concept of duty of care was established in Donaghue V Stevenson case (1932)
- This was a test case to see whether a manufacturer owed a duty of care to a consumer.
- Lord Atkin held: "You must take reasonable care to avoid acts or ommissions which you can reasonably forsee would be likely to injure your neighbour. Who then in law is my neighbour? Persons who are so closely or directly affected by my act"
Example case: Caparo V Dickman (1990):This replaces the neighbour test w/ the 3 part test...
1) Was the damage or harm reasonably forseeable?
2) Was there a sufficiently proximate b/t Caparo & Dickman?
3) Is it fair, just & reasonable to impose a duty of care?
Reasonably forseeable --> Duty of care
This depends on the facts of the case:
Example case: Kent V Griffiths (2000): A doctor asked an ambulance to take a paitent who was having an asthma attack straight to hospital, the ambulance failed to do so w/o a reason. The paitent suffered a heart attack that could've been avoided if it wasn't for the ambulances delay. Held: It was reasonably forseeable that the paitent would suffer harm b/c of the delay.
Example case: Bourhill V Young (1943): Mrs Bourhill was 8 months pregnant whe she heard but didn't see a fatal motorcycle accident. She walked over to the scene, saw blood on the floor & suffere shock which caused her to have a stillborn. She accused the dead motocyclist of neglect & claimed against his estate. Held: The motorcyclist didn't owe her a duty of care & he couldn't have forseen that bourhill would be affected by his riding.
Proximity --> Duty of care
The relationship b/t the 2 parties must be sufficiently close, this may be through family or friendship ties. It can also be through physical closeness or proximity.
Example case: McLoughin V O'Brien (1982): The C's husband & children were onvolved in an accident & when she arrived at the hospital she found her daughter was dead & the rest of her family were injured & covered in blood which caused the C to have shock. Held: Even thoufh she was unaffected by the accident her family tied meant she could claim.
Example case: Hill V Chief Constable Of West Yorkshire (1990): The mother of the Yorkshire Ripper's last victim sued the police for failing to arrest him despite having enough evidence. She claimed the police owed her daughter a duty of care. Held: The police do not owe individuals a duty of care but to the public in general.
Fair, just & reasonable ---> Duty of care
- There will only be liability if the court think it's fair just & reasonable to impose a duty of care on the D even if a duty of care was owed & breached.
- The courts rarely impose a duty of care onto the public serviceas shown in the Hill v Cheif Constable of West Yorkshire Police.
Example case: Capital & Countries V Hampshire CC (1997):The fire brigrade has attended a fire in building, the fire officer ordered the sprinkler system to be switched off this caused the fire to spread & caused severe damage. Held: It was fair just & reasonable to impose a duty of care upon the fire brigrade.
Breach of duty
Degree of risk:
- The risk of harm must be forseeable if not then theres no breach. Example case: Bolton V Stone (1951): A cricket pitch was surrounded by a 17ft high fence which was 78 yards from the wicket. The batsman hit the C on the head w/ a ball. The ball had only been hit out of the park 6 times in 30 years. Held: The risk of harm was so low that there was no liability.
- Example case: Haley V London Electric Board (1965): The electricity board dug a hole in a road & didn't cover it they just put up the sign. It was well known that this road was often used by blind people. Held: There was a duty of care.
Standard of care:
- If the D falls below the standard of care that a reasonable person would take then theres a breach of duty.
- Where a person would suffer greater harm than others for any reason then that person is owed a higher duty of care. Example case: Latimer V AEC (1953): A factory flooded making the floor very slippery, sawdust was spread to minimise the risk of workers slipping. A worker slipped & was injured. Held: The only option was to completly close the facory which was unreasonable for this to be expected so there was no breach.
Standard of experts --> Breach of Duty
Where the D has some expertise such as a doctor then the standard of care is higher than it would normally be. Example case: Bollom V Friern Hospital Management (1957): "A man need not possess the highest expert skill; it is sufficient if he excercise the ordinary skill of an ordinary competent man exercising that particular skill".
Example case: Nettleship V Weston (1971):The standard of care by learner drivers is the same as if they were qualified.
The damage/harm must be caused by a breach of duty. Example case: Barnett V Chelsea & Kensington Hospitals (1969): A night watchmen was rushed to hospital w/ severe stomach pains he wasn't diagnosed he was sent home & told to see his GP in the morning. He died a few hours later of arsenic posioning. His widown sued the hospital for negligence. Held: Even if the hospital had diagnosed him there was nothing he could do. His death wasn't negligently caused.
Remoteness of damage: The damage must not be too remote from the D's negligence that is there must be enough connection b/t damage & the breach of duty. Example case: Wagon Mound (1961): Oill had been negligently spilled into the water, days later a spark from whelding work made the C's wharf go up in flames. Held:It wasn't reasonable forseeable that the oil would catch fire in this way or that it could spread to the claimants wharf, the damage was too remote.
The think skull rule: The D must take the C as they find him, the D will be liablewhere the C suffers greater harm than a normal person would because of their think skull. Example case: Smith v Leech Brian & Co (1962): B/c of the employer's negligence an employee was burnt on the lip by a splash of molten metal. He has a pre-existing cancerous condition & the burn caused full cancer from which he died. His widow claimed negligence. Held: The injury was reasonably forseeable given the type of work; the employer was liable for the death.
The type of injury suffered by the C must have been forseeable even if the way it happened was not. Example case: Hughes V Lord Advocate (1963): Workmen left a manhole open w/ a parrafin lamp inside. A child climbed into to explore & suffered serious burns. Held: It was resonably forseeable that a child would go into the hole as was the possibilty of nay kind of burn. Held: The D's were liable.
Pecuniary loss: This type of loss can be calculated in money terms. E.g cost of repairs.
Non pecuniary loss: Claims that aren't money based they cover things that can't properly be calculated in money. E.g: The c's pain/suffering or loss of amenity.
Res Ispa Loquiter: The thing speaks for itself, sometimes it's obvious that negligence has occured but C may not know exactly what happened. E.g C has had anasthetic & woke up to find a needle still im him. The C must prove that a)The D was in control of the situation & caused the injury or B) The njury was more like to happen that not to have been caused by negligence. If this is proven C can claim negligence.
Example case:Scott V London &St Catherine Docks (1865): The C was hit by 6 bags of heavy sugar that fell from D's window. The C didn't know how or why the bags fell but he could prove they had fell & caused his injury.
Starting a civil claim in court.
Pre- action protocol: This is a lost of things to do before the case begins. The parties should give to each other brief details of claim/ why other party is at fault/ any other relevant matters. This info is usually in a letter. The D has 2 weeks to reply but 3 months to investigate the claim stating whether they admit ir deny it. The parties must follow this procedure if they don't they may be laible for costs.
Which courts to use?
Small claims: £5000 or less (£1000 in personal injury) - county court by district judge.
Fast Track claims: £5000 - £25000 - couny court by district or curcuit judge.
Multi track claim: £25000+ can be heard in county court but are normally heard in crown court.
Defending a claim: The D has 2 week to repsond they can admit the claim & pay the full amount/ defend the claim & fill out an N9 form w/in 14 days. The D has another 14 days to serve a defence. The D may admit part of the claim. If the D does nothing the court may find them liable by default & order them to pay costs & money claimed.
Civil claims (2)
Special Damages: Apply to pecuniary loss: Car repair or hire/ replacing damaged goods/ loss of earnings.
General Damages: Apply to non pecuniary loss: Pain & suffering/ loss of amenity/ loss of future earnings/ paying for care/ paying for a house to adapted for a disabled person.
Mitigation of loss: The C in entitled to be compensated for their loss but has a duty to keep this loss to a reasonable level. The aim of tort is to put the victim back into the position they would have been had the accident not happened. No special rewards or allowences are given. If a ford fiesta is damaged then a similar car shoule be hired while it's in repair.
Lump Sums: The courts are only allowed to award lump sums for pain & suffering or loss of amenities. This can be unfair to a C whose condition improves & no longer needs the money.
Stuctured settlements: Damages Act (1996) parties are allowed to settle the claim by setting up periodical payments do the C recieves the money weekly monthly or yearly. The parties agree how long the payments will last & the payments can be reassesed at any time to take into account changes of the C's condition. Courts canno order structures payments.