What is the actus reus of a crime?
It is the physical element of a crime.
What must D's act or omission be (usually) to satisfy a crime + case name?
D's act or omission must be voluntary. If D has no control over his actions then he is not at fault and has not committed the actus reus: HILL v BAXTER (1958)
What happened in HILL v BAXTER (1958)?
The court gave examples where a driver of a veichle could not be said to be doing the act of driving voluntarily and thus would not be guilty of a driving offence. These included where a driver lost control of his vehicle because he was:
- stung by a swarm of bees
- struck on the head by a stone
- had a heart attack while driving
What type of conduct can occur in an assault?
Voluntary or involuntary
What does not need to be proved if an offence is one of absolute liability and what is the actus reus for this?
The mens rea of the offence does not need to be proved and the actus reus can be involuntary: WINZAR v CHIEF CONSTABLE OF KENT (1983)
What happened in WINZAR v CHIEF CONSTABLE OF KENT (1983)?
Police removed D, who was drunk, from a hospital and took him outside. He was then charged with being found drunk on the highway.
The court upheld his conviction because the offence was one of absolute liability, designed to deal with the nuisance of public drunkenness. It did not matter that D had been taken to the highway against his will.
Where the actus reus requires a consequence to be proved, what does the prosecution have to show?
- D's conduct was the factual cause of that consequence; and
- D's conduct was the legal cause of that consequence; and
- there was no intervening act which broke the chain of causation from D's conduct to that consequence
What is the factual cause of a consequence?
D will be the factual cause of a consequence, if the consequence would not have happened 'but for' D's conduct: PAGETT (1983)
What happened in PAGETT (1983) and what do we use this case for?
D used his pregnant girlfriend as a shield while he shot at armed policemen. The police fired back and the girlfriend was killed. D was convicted of manslaughter.
She would not have died 'but for' him using her as a shield in the shoot-out.
We use this case as an example for D being a factual cause of a consequence.
What is the legal cause of a consequence?
D will be a legal cause of a consequence if D's conduct was more than a 'minimal' cause of the consequence. Thus others may contribute towards a consequence: BENGE (1865)
What happened in BENGE(1865) and what is this case used for?
D was a foreman charged with manslaughter when railway tracks were not re-laid in time and a train crashed as a result, killing many people. D argued that, although he was negligent, the flagman had not gone far enough up the track and the train driver had not been paying close enough attention.
D was still a legal cause of the deaths as his conduct was more than a 'minimal' cause.
This case is an example for D being more than a 'minimal' cause of a consequence
How is medical negligence unlikely to break the chain of causation?
Medical negligence is unlikely to break the chain of causation unless it is so independent of D's act and 'in itself so potent in causing death' that D's acts are insignificant: CHESHIRE (1991)
What happened in CHESHIRE (1991) and what is this case used for?
D had shot V who died later in hospital due to his windpipe becoming obstructed where surgery had been performed. The complications were not spotted by the doctors. Although the gunshot wounds were not longer life threatening at the time of death, D was liable for murder.
The medical complications were a direct consequence of the shooting and D's act was still a significant cause of V's death.
This case is an example of there being no intervening act between D's conduct and the consequence
How is V's own conduct unlikely to break the chain of causation?
V's own conduct is unlikely to break the chain of causation unless it is so daft that a reasonable person would not have foreseen V reacting in that way: ROBERTS (1971)
What happened in ROBERTS (1971) and what is this case used for?
A girl jumped from a car in order to escape the sexual advances of D. The car was travelling at between 20 and 40 mph and the girl was injured through jumping from the car.
D was held liable for her injuries as her reaction was reasonable foreseeable.
This case is an example of where there in no intervening act between D's conduct and the consequence
If V has something unusual about them, how is this unlikely to break the chain of causation?
The chain of causation will not be broken if V has something unusual about them e.g. an inability to swim, blood clotting disorder, religious beliefs etc. D must take V as he finds him. This is known as the 'thin skull rule': BLAUE (1975)
What happened in BLAUE (1975) and what is this case used for?
D was held to have caused the death of a Jehovah's Witness whom he had stabbed, even though the young woman had refused a blood transfusion (on religious grounds) that would probably have saved her life.
He had to take his victim as he found her.
This case is an example of where there is no intervening act between D's conduct and the consequence
What is the normal rule for an omission?
The normal rule is that an omission cannot make a person guilty of an offence.
What is an example of D omitting to do the actus reus of a crime but still being guilty for not doing the actus reus? (think about omission being the basis of the actus reus of the crime)
A statute may require D to act and omitting to do so will satisfy the actus reus e.g. if a motorist drives without insurance, they are committing an offence under the ROAD TRAFFIC ACT 1988
What are the examples of where the common law requires D to act and omitting to do so will satisfy the actus reus?
- D may be under a contractual duty to act: PITTWOOD (1902)
- D may be under a duty to act because he has set in motion a chain of events: DPP v SANTANA-BERMUDEZ (2004)
- D may be under a family duty to act: GIBBINS AND PROCTOR (1918)D may be under a duty to act becasue he has voluntarily promised to care for V: STONE AND DOBINSON (1977)D may be under a duty to act through his official position: DYTHAM (1979)
What is men's rea?
The mental element of a crime
Why are there different levels of mens rea?
So that the law can identify the degree to which a person is at fault for his or her actions. To be guilty D must have at least the minimum level of mens rea required by the definition of the offence.
What is the most blame worthy level of mens rea?
What is direct intent?
D directly intends a result where it is his aim or purpose. D desires the result and sets out to achieve it: MOHAN (1976)
What is the least blameworthy level of mens rea?
What is subjective recklessness?
D will have acted recklessly where he knows there was a risk of the result happening but takes the risk anyway:CUNNINGHAM (1957)
What happened in CUNNINGHAM (1957) and what is this case used for?
D tore a gas meter from a wall of an empty house to steal the money in it. This caused gas to seep into the house next door, making V ill.
D was not liable since he did not know there was a risk of gas escaping into V's house. He had not intended to cause the harm, nor had he taken a risk he knew about.
This case is used to illustrate subjective recklessness
What is indirect intent?
A court may find that D indirectly intends a result where that result is not desired, but was virtually certain to occur and D knows this: WOOLLIN (1998)
What happened in WOOLLIN (1998) and what is this case used for?
D threw V intending for the baby to go into the pram, instead, the D indirectly intended the death of V as it was virtually certain that the baby could die if it missed the pram.
This case is used to illustrate indirect intent
What two things are needed together for an offence to take place?
Actus reus and mens rea except for offences of strict/abosolute liability where the mens rea is not needed to be proved.
Name a case where there is a continuing act for the actus reus and while that act is still going on, D has the necessary mens rea
FAGAN v MPC (1969)
What happened in FAGAN v MPC (1969) and what is this case used for?
D was told by a police officer to park his car by the kerb, in doing this, D drove onto the officers foot without realising the officer told D repeatedly to move off the foot but delayed doing so.
The court held that once D knew the car was on the officer's foot he had the required mens rea. As the actus reus (the car putting force on the foot) was still continuing, the two elements of the crime were present together.
This case is used to show that the actus reus and mens rea must be present at the same time for D to be guilty of an offence.
What are the two main exceptions where D will still be guilty of an offence even though the actus reus and mens rea are not present at the same time?
1. Where the actus reus is part of a larger transaction, it will be sufficient that D forms the necessary mens rea at some point during that transaction: CHURCH (1966)
2. If D plans a crime but then intoxicates himself in order to gain Dutch Courage to commit it, he is still guilty because he formed the necessary mens rea for the crime before getting intoxicated and committing the actus reus of the crime: GALLAGHER (1963)
What happened in CHURCH (1966) and what is this case used for?
D and a woman went to his van to have sex, but he was unable to satisfy her and she slapped his face in anger. D, intending only minor harm, punch V and knocked her out. Believing her to be dead and to hide what he had done, D threw her into a river where she drowned.
D was liable for involuntary manslaughter. The actus reus (V drowning) was part of a larger transaction and D formed the necessary mens rea at one point during that transaction i.e. where D struck V in the van.
This case is used to illustrate that the actus reus and mens rea of an offence do not need to be present at the same time in order for an offence to take place, just that the actus reus was part of a larger transaction.
What happened in GALLAGHER (1963) and what is this case used for?
D decided to kill his wife and bought a knife for this purpose. He then drank a lot of whiskey to give himself Dutch courage to carry out the murder. He went on to kill his wife.
The court held that he was liable for murder because he still had the intention to kill, even though he was very drunk by the time he committed the actus reus of murder.
This case is used to illustrate that the actus reus and mens rea of an offence do not need to be present at the same time; it will be sufficient that D forms the necessary mens rea before getting intoxicated and committing the actus reus of a crime.
What are the two exceptions to the general rule that crimes require the prosecution to prove both actus reus and mens rea for D to be guilty?
- crimes of strict liability and
- crimes of absolute liability
What is a crime of strict liability?
An offence of strict liability means one where the prosecution need not to prove mens rea for at least part of the actus reus (or not at all): HARROW LONDON BOROUGH COUNCIL v SHAH (1999)
- D must have committed the actus reus voluntarily
- D does not have to be at fault
- D can be liable for the offence even though he/she did not have a guilty mind at the time they committed the act
What happened in HARROW LONDON BOROUGH COUNCIL v SHAH (1999)?
Ds owned a newspaper shop. Despite notices on display and relevant training, an employee sold a lottery ticket to a 13 year old boy. The employee mistakenly thought that the boy was at least 16.
Ds were liable for selling the ticket to a person under the age of 16 years. The offence did not require mens rea to be proved. Even though all the precautions were in place to prevent under 16s from buying lottery tickets, it was more important to deal with the problem of young people gambling rather than needing proof of mens rea.
Who creates most of the strict liability offences?
What makes it clear if there is a case of strict liability?
What is used if there is uncertainty on whether or not a case is of strict liability?
- The case of GAMMON (1985) is used meanning that the courts will presume that the mens rea of an offence is required to be proved.
- This presumption will usually only be set aside and strict liability imposed where the statute involves an issue of social concern.
- This most often occurs in offences which are regulatory in nature as these are not thought of as being truly criminal matters. This includes offences regulating food safety (as in CALLOW v TILLSTONE) and the sale of alcohol and gambling tickets (as in HARROW LBC v SHAH), the prevention of pollution and the safe use of vehicles.
What increases the likelihood of strict liability being imposed + case name?
the greater the social danger, the more likely strict liability will be imposed, particularly if it would be effective in promoting higher standards: ALPHACELL LTD v WOODWARD (1972)
What happened in ALPHACELL LTD v WOODWARD (1972)?
The pumps a company had installed broke down and caused polluted waste to flow into a nearby river.
There was no evidence that the company had been negligent, but they were strictly liable because it was of the utmost public importance that rivers should not be polluted.
What are the three main reasons for having offences of strict liability?
- Helps protect society e.g. protection from unfit food (as in CALLOW v TILLSTONE), protection against pollution (as in ALPHACELL LTD v WOODWARD) and protection from unsafe buildings (as in GAMMON). It makes sure that businesses are run properly.
- It is easier to enforce strict liability offences as there is no need for the prosecution to prove mens rea. This would have helped secure the conviction of the company in ALPHACELL LTD v WOODWARD.
- It also saves court time as Ds are more likely to plead guilty so that no trial is required.The fact that D may not be blameworthy can be taken into account when sentencing.
What is the main argument against strict liability?
It makes people who are not blameworthy guilty. Even those who have taken all possible care will be found guilty and can be punished: HARROW LONDON BOROUGH COUNCIL v SHAH (1999)
What is a crime of absolute liability?
One where the prosecution does not need to prove the mens rea nor does the actus reus need to be voluntary - it can be involuntary: WINZAR v CHIEF CONSTABLE OF KENT
What is the definition of an assault?
D must intentionally or recklessly cause V to apprehend immediate and unlawful force: IRELAND (1996)
What is the actus reus for an assault?
Where by an act or by words D causes V to apprehend immediate and unlawful force.
What must there be for an assault?
There must be an act or words for an assault
In what form can words be for an assault and what case is this from?
Words can by verbal, written or typed: CONSTANT(1997)
What could be an assault from the case of IRELAND (1996) and why was this?
Silent phone calls because there is no need for any physical contact for an assault.
It is necessary that V 'apprehends' unlawful force. What does this mean?
It means to be aware of it. V does not have to be scared nor does V have to be in danger : LOGDON v DPP (1976).
There must be an apprehension of 'immediate' force. What does this mean?
It must happen there and then. A threat by D to inflict harm in the future cannot be an assault: SMITH v SUPERINTENDENT OF WOKING POLICE STATION (1983)
What happened in LOGDON v DPP (1976)?
D showed V a fake gun a a draw and said that it was loaded. V thought it was real and apprehended immediate and unlawful force.
D was convicted for an assault as V did not have to be in any danger.
What can prevent an act from being an assault?
Words indicating that there will be no immediate and unlawful force can prevent an act from being an assault: TUBERVILLE v SAVAGE (1669)
What happened in SMITH v SUPERINTENDENT OF WOKING POLICE STATION (1983)?
The court decided that D had committed an assault by standing in V's garden in the evening, looking at her in her nightclothes through her closed bedroom window.
V was terrified and did not know what D might do next. Unlawful force could well have been imminent.
What happened in TUBERVILLE v SAVAGE (1669)?
D, annoyed by the comments made by V, put his hand on his sword and said 'if it were not assize-time I would not take such language' - meaning that since judges were hearing cases in town at the time, he had no intention of actually using force.
His words ruled out the threat implied by putting his hand to his sword, so there was no assault.
What is the 'mens rea' of an assault and what case does it come from?
Intention or subjective recklessness as to causing V to apprehend immediate and unlawful force: VENNA (1976)
What is the definition of a battery?
D must intentionally or recklessly apply unlawful force to V: COLLINS v WILCOCK (1984)
What is the actus reus for a battery?
Where D's act or omission applies unlawful force to V.
What about the force D puts on V for a battery?
Force can include the slightest touching, but not the ordinary 'jostling' of everyday life: COLLINS v WILCOCK
This is because implied consent is given to all the touching which is inevitable in everyday life. However, physical restraint is not acceptable.
Where can the force be applied for a battery?
It can be applied to V's body or clothing: THOMAS (1985)
What happened in THOMAS (1985)?
D touched the bottom of a woman's skirt and rubbed it.
The court held that touching a person's clothes while he or she is wearing them is equivalent to touching them.
How may the unlawful force be applied for a battery?
By striking a person with a fist or an object. Force can also be applied through an indirect act e.g. a booby trap: HAYSTEAD (2000)
What happened in HAYSTEAD (2000)?
D punched a woman holding a child and caused the child to fall to the ground
D satisfied the actus reus of a battery by indirectly applying force to the child
How can a battery be committed by an omission?
A battery can be committed by an omission, but only if D is under a duty to act: DPP v SANTANA-BERMUDEZ (2004)
What may the actus reus for the battery be?
The actus reus of a battery may be a continuing act, allowing mens rea to be present at the same time: FAGAN v MPC (1969)
What is the mens rea for a battery?
Must either be intention or subjective recklessness as to applying unlawful force to V: VENNA (1976)
What is assault occasioning actual bodily harm?
Under s.47 of the OFFENCES AGAINST THE PERSON ACT 1861, it is an offence to commit 'any assault occasioning actual bodily harm'
What is the actus reus for s.47 of the OAPA 1861?
There must be an assault or battery and this must cause actual bodily harm
What is the actus reus D must satisfy for an assault occasioning actual bodily harm?
D must satisfy either the actus reus of a battery or an assault (usually it will be a battery which causes ABH to V).
What must the assault or battery have occasioned for s.47 OAPA 1861?
The assault or battery must have 'occasioned' (caused ABH). There must be no intervening act between the chain of causation from D's conduct to the injury.
What is ABH + case name?
ABH is 'any hurt or injury calculated to interfere with the health or comfort' of V: MILLER (1954)
What does the word 'actual' mean under s.47 OAPA 1861 + case name?
The word 'actual' means that the injury 'should not be so trivial as to be wholly insignificant': CHAN-FOOK (1994)
What does the mens rea of s.47 require? (2)
The mens rea of s.47 requires either the mens rea of an assault or the mens rea of a battery.
D does not need to intent or be reckless as to whether ABH is caused to V: SAVAGE (1991)
What happened in SAVAGE (1991)?
D there the contents of her beer glass over V during a bar brawl. The glass slipped out of her hand and broke causing a piece of glass to cut V's wrist. D intended to throw only the beer over V (she did intend to apply unlawful force to V) but did not intend to cause the injury to V's wrist.
D satisfied the mens rea of s.47 because she had the mens rea of a battery
What is an offence under s.20 OAPA 1861?
Under s.20 it is an offence to;
- unlawfully and maliciously inflict GBH; and/or
- unlawfully and maliciously wound
What is the actus reus for s.20 OAPA?
Requires D to have inflicted GBH on V or to have wounded V
Under s.20 OAPA, what is the difference between the two words 'inflict' and 'cause'
There appears to be very little difference between the words 'inflict' and 'cause': BURSTOW (1998)
Under s.20 OAPA, what does GBH mean + case it comes from?
GBH means 'really serious harm': DPP v SMITH (1961)
The injury does not have to be life threatening
What happened in BURSTOW (1998)?
D was obsessed with V and over several months, he stalked her, damaged her car and broke into her house.
D's conduct caused V to suffer severe depression, insomnia and panic attacks. D was liable for maliciously inflicting GBH.
Under s.20 OAPA, what is taken into account in deciding whether injuries amount to GBH? + case name?
In deciding whether injuries amount the GBH, it is necessary to take into account V's age and health: BOLLOM (2003)
under s.20 OAPA, how can minor injuries amount to GBH + case name?
A single minor injury to V, when added to other minor injuries inflicted on V, can amount to GBH: BROWN AND STRATTON (1997)
under s.20 OAPA, what does a wound require?
Wounding requires breaking of the whole skin. The injury must be deep enough to break the inner skin.
under s.20 OAPA, what would be insufficient for a wound + case name?
Internal bleeding where there is no cut to the skin is insufficient for a wound: JCC v EISENHOWER (1983)
What is the mens rea for s.20 OAPA?
Mens rea for s.20 is defined by the word 'maliciously'. This means that there must be some intention or subjective recklessness that V might suffer some harm: PARAMETER (1991)
Even though the actus reus of s.20 requires a wound or GBH, there is no need for D to foresee this level of injury.
What is an offence under s.18 OAPA 1861?
Under s.18 it is an offence to:
- wound with the intent to do some GBH; and/or
- cause GBH with the intent to do some GBH; and/or
- maliciously wound with the intent to resist or prevent arrest; and/or
- maliciously cause GBH with the intent to resist or prevent arrest
What is the actus reus for s.18 OAPA 1861?
The actus reus requires D to have inflicted GBH on V or to have wounded V
What is the mens rea for s.18 OAPA 1861?
The mens rea is more serious than that for s.20 OAPA.
D must either intend to do some GBH or intend to resist/ prevent arrest
D may directly intend to do some GBH or resist/prevent arrest; or indirectly intend to do some GBH or resist/prevent arrest
What are the two courts which hear criminal trials?
- Magistrates' Court (3 lay magistrates)
- Crown Court (judge and jury)
Where are summary offences tried?
Summary offences can only be tried at the Magistrates' Court
Where are indictable offences tried?
Serious crimes such as s.18 OAPA 1861 can only be tried at the Crown Court
Where can either way offences be tried?
the middle-range offences which can very in the degree of harm caused such as s.47 and s.20 OAPA 1861 may be tried at either the Magistrates' Court or the Crown Court
What part of OAPA is an indictable offence?
s.18 OAPA 1861
What part of OAPA 1861 is an either way offence?
s.47 and s.20
What is the pre-trial procedure for summary offences?
1. After D has been arrested
(formally accused) by the police
, they can decide to release D from the police station on bail
(D is given his freedom) or keep them in custody (locked up) until D’s first court appearance. The Crown Prosecution Service
(CPS) will advise the police whether there is enough evidence and if it is in the public interest for the case to proceed to court. Alternatively, where D has not been arrested and taken to a police station, D may be summoned to court by post
- 2. All summary offences, which includes assault and battery, are dealt with in the Magistrates’ Court and D may be represented for the first hearing by the duty solicitor at the court. A duty solicitor is paid by the State to represent D in court at no cost to D. The purpose of the first hearing is for D to enter a plea which could be guilty or not guilty.
- If a guilty plea is made, sentencing may take place immediately or the magistrates may adjourn for pre-sentence reports before they pass sentence.
- However, if a not guilty plea is entered the proceedings are likely to be adjourned for witnesses to be summoned to court and for D to obtain further legal advice. The magistrates will also decide whether D should receive legal aid to help fund advice and representation given by a solicitor. It must be in the interests of justice for D to receive public funding and D must pass a means test. Finally, the magistrates must decide whether D should be released on bail until the next court hearing or kept in custody.
3. Both assault and battery are summary offences and will always be tried in the Magistrates’ Court
What is the pre-trial procedure for indictable offences?
1. After D has been arrested
and detained at the police station, the Crown Prosecution Service
(CPS) will advise the police whether there is enough evidence and if it is in the public interest for the case to proceed to court. If D is charged
, the police can decide to release D from the police station on bail
or keep them in custody until D's first court appearance.
2. All people charged with criminal offences first appear in the Magistrates' Court
. D may be represented for the first hearing by a duty solicitor
at the court. A duty solicitor is paid by the state to represent D in court at no cost to D. The magistrates will decide whether D should receive legal aid
to help fund advice and representation will be given by a solicitor. It must be in the interests of justice for D to receive public funding and D must pass a means test. The magistrates must also decide whether D should be released on bail
until the next court hearing or kept in custody
. All indictable offences are transferred to the Crown Court
3. The first hearing at the Crown Court
after the case has been sent by the magistrates is the plea and case management hearing
. Its purpose is to ensure that all necessary steps have been taken in preparation to trial and sufficient information has been provided for a trial date to be arranged. D will enter a plea.
- If D pleads guilty, sentencing may take place immediately or the judge may adjourn for pre-sentence reports before he or she pass sentence.
- If D pleads not guilty, the the preparations for trial will take place, including how many witnesses will be called and what exhibits, such as any weapon, will be produced at the trial.
4. s.18 OAPA 1861
offence is an indictable offence and can only be tried at the Crown Court
. A jury will decide on guilt or innocence and if D is found guilty the judge will pass sentence.
What is the pre-trial procedure for either way offences?
1. After D has been arrested
and detained at the police station, the Crown Prosecution Service
(CPS) will advise the police whether there is enough evidence and if it is in the public interest for a case to proceed to court. If D is charged
, the police can decide to release D from the police station on bail
or keep them in custody
until D's first court appearance.
2. All people charged with criminal offences first appear in Magistrates' Court
. D may be represented for the first hearing
by the duty solicitor
at the court. A duty solicitor is paid by the state at no cost to D. The magistrates will decide whether D should receive legal aid
to help fund advice and representation given by a solicitor and barrister. It should be in the interests of justice for D to receive public funding and D must pass a means test.
3. For either way offences, such as s.47
and s.20 OAPA 1861
, there is a plea before venue and allocation procedure
. D is asked whether he pleads guilty or not to the offence.
- If D pleads guilty, then the magistrates decide whether their sentencing powers are sufficient to sentence D or if the case must be committed to the Crown Court for sentencing.
- If D pleads not guilty, the magistrates must work out the most appropriate court to allocate the case for trial. The will hear arguments from the prosecution and defence, together with any relevant previous convictions. Generally, either way offences should be tried in Magistrates' Court unless it is likely that the court's sentencing powers will be insufficient.
If the magistrates feel the case is not suitable for trial by a Magistrates' Court, they will allocate it to the Crown Court for trial. If the magistrates are prepared to hear the case, D is given a choice of trial court. An indication of the likely sentence will be given to help him or her to decide. If the trial is in the Magistrates' Court, there will be an adjournment and the court will have to decide whether to grant bail
or remand D in custody
until the trail.
4. If the case is transferred to the Crown Court, there will be a plea and case management hearing
at the Crown Court.
What decision has to be made between court appearances?
Whether or not D is granted bail or remanded in custody
Who can grant bail?
the police or the courts
What does s.4 of the BAIL ACT 1976 tell us?
Section 4 of the BAIL ACT 1976 gives a general right to bail
Can a court refuse bail and when is this necessary?
A court can refuse bail if the court has substantial grounds for believing that D might:
- abscond and not turn up for the next stage of the case; and/or
- commit a further offence if granted bail; and/or
- interfere with witnesses
What will the court take into account when deciding or not D will be granted bail? (4)
- the nature and seriousness of the offence D has committed
- D's character and community ties
- D's record in respect of any previous grants of bail
- the strength of the evidence against D
What can the court do alongside bail?
The court can attach conditions to bail if they wish to do so.
What are examples of conditions which may be attached to bail?
- surrender of D's passport
- regular reporting to police station
- residence at particular address
- placed on curfew
- requirement of a surety (another person, 'surety', promises to pay a specific sum of money if D fails to turn up)
What is D guilty of if he does not turn up to court?
D will be guilty of the offence of absconding
Who is the burden of proof placed upon at a trial?
What is presumed about an innocent person?
An accused person is innocent until proven guilty.
How must the prosecution prove the case?
The prosecution must show that D satisfies both the required actus reus and the required mens rea of the offence charged.
What is the standard of proof of a criminal case?
The standard of proof necessary for D to be guilty at his or her trial is 'beyond reasonable doubt'.
What does 'beyond reasonable doubt' mean?
This means the magistrates or jury should only convict if they are certain of D's guilt.
What is the most serious form of punishment?
What is a custodial sentence?
It is the most severe form of punishment and involves imprisonment (either immediate or suspended) - i.e. when the prison sentence is not activated unless the offender commits a further offence
What are the two types of custodial sentences?
- a discretionary life sentence or
- a fixed term sentence
What is a discretionary life sentence?
It is the maximum prison sentence; life imprisonment. However, the court can chose to give a lesser sentence where appropriate.
What is a fixed-term sentence?
A fixed-term sentence is a term of imprisonment for a set number of months or years.
What is the CRIMINAL JUSTICE ACT 2003?
The CRIMINAL JUSTICE ACT 2003 created one community order to which the court can attach any requirement they think will both punish and reform the offender.
What are the requirements under the CRIMINAL JUSTICE ACT 2003?
- unpaid work requirement
- alcohol/drug treatment
- curfew requirement
What can financial sentences include?
- a fine paid to the state
- a compensation order paid to the victim
What are the range of sentences available to the courts for the non-fatal offences against the person? (4)
- custodial sentences
- community orders
- financial sentences
What is the least serious sentence?
When are discharges usually given?
to first-time minor offenders in the Magistrates' Court
What are the two types of discharges?
- conditional discharge (where if the offender commits a further offence in the stated period, they can be resentenced for the original offence)
- absolute discharge (no real penalty imposed as the offender is technically guilty but not morally blameless)
What is a conditional discharge?
Where if the offender commits a further offence in the stated period, then they can be resentenced for the original offence as well as the new offence
What is an absolute discharge?
Where no real penalty is imposed as the offender is technically guilty but morally blameless
What do judges or magistrates have to do when sentencing?
- look at the range of sentences available
- decide what they are trying to achieve by the punishment they give
What is under section 142 of the CRIMINAL JUSTICE ACT 2003?
the aims of sentencing for those aged 18 and over.
What must a court have regard to under section 142 of the CRIMINAL JUSTICE ACT 2003?
- reduction of crime
- protection of the public
- reform and rehabilitation of offenders
- making of reparation by offenders to persons affected by their crimes
What is the aim of punishment/retribution?
The idea that if someone has broken the criminal law they should be punished and get their 'just deserts' - i.e. receive the sentence their degree of fault deserves.
To an extent, all sentences involve retribution
What is an important aim of sentencing?
What is one way to reduce offending?
impose severe sentences for crimes so that offenders are deterred from reoffending for fear of the consequence and/or other people are deterred from offending because they do not want the same fate
What is individual deterrence?
offenders being deterred from reoffending for fear of the consequence
What is general deterrence?
other people are deterred from offending because they do not want the same fate as offenders
How is protection of the public achieved?
the offender is given a sentence that makes them incapable of committing a further crime
e.g. long custodial sentences or community order with a curfew requirement are typically used to achieve this aim
What is meant by reforming/rehabilitating an offender?
This aim usually involves help (e.g. with anger management or drug addiction) to alter the offender's behaviour so that he or she will not reoffend
What is the aim of reparation?
Ensuring that the offender makes amends this may be achieved through a compensation order
What factors do a court take into account when deciding on a sentence?
- maximum prison sentence allowed by Parliament
- maximum sentencing powers of the court
- the seriousness of an offence
- the offenders background
- aggravating factors
What is the maximum prison sentence allowed by Parliament for an assault or a battery?
6 months' imprisonment
What is the maximum prison sentence allowed by Parliament for s.47 or s.20 OAPA 1861?
5 years' imprisonment
What is the maximum prison sentence allowed by Parliament for s.18 OAPA 1861?
What are the sentencing powers of Magistrates' Court?
can only impose a maximum of 6 months' imprisonment for one offence (12 months for two)
What are the sentencing powers in the Crown Court?
there are no sentencing limits in the Crown Court (the judge can impose up to life imprisonment for an offence under s.18 OAPA 1861)
When is a custodial sentence passed and under what act is this information found?
Under the CRIMINAL JUSTICE ACT 2003, the court cannot pass a custodial sentence unless the offence is serious enough.
What is an aggravating factor?
These are circumstances which allow a court to impose a more severe sentence that it would normally have given.
What is a migrating factor?
These are circumstances which allow a court to impose a lower sentence that it would normally have given
What are sentencing guidelines?
These are issued by the Sentencing Council which sets out the point and range of sentencing options for an offence and the kind of factors the court should consider.
They may suggest a 'tariff' which is the sentence appropriate for the 'average' example of the offence - e.g. whether magistrates should be thinking of a custodial sentence or a community order