legaleasy

7 December, 2007

Revision!

Filed under: A2-Level,AS-Level — legaleasy @ 10:59 am

From Now Until January!

You should be revising in earnest for your exams. There are still outstanding items of homework from some of you. If you want feedback on your work you need to hand it in.

A2 – remember with Module 3 you need to look at both sentencing and damages to be able to answer fully. Please refer to your revision guides. If you are unsure come and see me. With Module 4 you need to able to comment on the reforms to the OAPA – both fatal and non fatal. This is worth significant proportion of your mark for your paper.

In class we will revise topics that you are having problems with. Please come to lessons with an inkling of what you are struggling with!

We will practise exam technique and writing answers under exam conditions.

There is however, no substitute for hard work!

Take your mock exam in the last week of term seriously please. If you have missed lessons please come and see me for any missing handouts.

Merry Christmas!

P.S Good luck.

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30 November, 2007

Links To Module 6

W/E 30th November 2007

 This week we had a brief look at how the concepts we studied in Module 4 could relate to Module 6.

 As you aware, Module 6 is a synoptic unit. This means you will have to illustrate your exam answers with examples from the whole of your AS and A2 studies. 

One way of trying to think about links is to consider an individual case such as Stone v Dobinson. Write down the facts of the case and the legal principle it demonstrates. Then consider the the areas studied under Module 6 i.e Morals, Justice, Fault, Conflicting Interests and Judicial Creativity. Does this case raise any questions in this area. For example the mens rea required for the offences, is an omission criminally liable, how do we balance the conflicting interests of a defendant and the victim / and or society at large.

 I appreciate this is hard to do, but the ealier you start to consider such connections the easier you will find Module 6.

Additional Reading

You should now be revising in earnest for your Module 3 and 4 exams in January.

Please see me with any questions regarding revision.

16 November, 2007

Defences – Consent and Self Defence

Filed under: A2-Level,additional reading,domestic law,Fatal Offences — legaleasy @ 7:07 pm

W/E 16th November 2007

This week we finished Module 4 by looking at the defences of consent and self defence.

Self Defence

Under the common law a person can use reasonable force to defend themselves, another person or property. It is a complete defence and leads to acquittal.

The jury need to look at the facts of a case to ascertain whether a defendant has used reasonable force or not. If a defendant uses excessive force the defence will fail as in Clegg and Martin.

It is not necessary for the defendant to be attacked first for the defence of self defence to be successful.

If you make a mistake about needing to protect yourself then you are judged on what you honestly believed the facts to be. However, there is no defence as to drunken defence.

Consent

The general rule is that you cannot consent to actual bodily harm or worse being inflicted upon you.

There are recognised exceptions. You will need to know these for the exam. These are;

1. properly conducted games and sports;

2. lawful chastisement;

3. reasonable surgical interference;

4. dangerous exhibitions etc.

The courts will also take into account public interest – as in the case of Brown.

The consent must also be real.

Additional Reading

Please refer to your revision guides. You need to know the case examples for the exam. Again I would urge you to read a good quality newspaper and keep up to date with the news.

9 November, 2007

Defences

Filed under: A2-Level,additional reading,Fatal Offences — legaleasy @ 9:44 pm

W/E 9th November 2007

This week we started to look at the six defences that may be available to a defendant. Remember, some defences can be used for any offence, other defences can only be used for certain offences.

Unlike the special defences, if one of the six defences are successful then the defendant is usually acquitted (a special defence only lowers a murder charge to one of voluntary manslaughter).

The exception to this is the defence of insanity. In this instance a defendant is guilty by reason of insanity. This allows a judge to make a mental health order to detain the defendant in hospital.

The six defences are: insanity, automatism, intoxication, mistake, self defence and consent.

Insanity

The rules on insanity are from the case of M’Naughten (1843) where it was stated that for the defendant to prove the defence of insanity then at the time of committing the act the defendant was;

“labouring under such a defect of reason, from disease of the mind, as not to know the nature of the and quality of the act he was doing, or if he did know it, that he did not know what he was doing what was wrong.”

There are therefore 3 elements to this – (1) a defect of mind, (2) caused by a disease of the mind, and (3) this causes the defendant not to know what they are doing.

Refer to the cases of Clarke (1972), Sullivan (1983) and Windle (1952).

Automatism

Bratty v AG for N.Ireland (1961) defined automatism as;

“an act done by the muscles without any control by the mind, such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing such as an act done whilst suffering from concussion or whilst sleepwalking.”

This covers both insane automatism – which is a disease of the mind and therefore comes under M’Naughten; and non-insane automatism which covers situations such as;

  • an attack by a swarm of bees;
  • sneezing;
  • a blow to the head;
  • the effect of a drug.

Please refer to the cases of Bailey (1983) and Hardie (1984). Watch out though – the law applies differently depending on whether it is a crime of specific or basic intent.

Intoxication

This covers alcohol, drugs or any other intoxicating substance (including prescription drugs).

It does not provide a defence in the same way as insanity or automatism, rather it is relevant as to whether the defendant has the required mens rea for the offence – see my comments on specific and basic intent above. If he does not have the required mens rea, then he may be not guilty.

The relevant factors are;

  1. is it a crime of specific or basic intent.
  2. was the intoxication voluntary (a reckless course of conduct – Majewski (1977)) or involuntary.

Please refer to the cases of Majewski (1977) and Kingston (1994) for further exploration of these two points.

Mistake

The mistake must be about fact. It must be genuine, and even if unreasonable will be a defence – see Williams (1987).

If because of a genuine mistake a defendant uses force, that force must be reasonable otherwise the defendant does not have a defence.

A defendant can make a drunken mistake which means he doesn’t have the required mens rea for an offence. However, if as a result of being drunk a defendant is mistaken in the amount of force required for self defence then he does not have a defence. See O’Grady (1987) and Hatton (2005). This applies whether the crime is one of specific or basic intent. Contrast this with the decision in Richardson & Irwin (1999).

Additional Reading

As always please refer to the books in the Resource Centre for additional materials on this subject. Please also look at your revision guides.

Please forward to me suggestions for revision for the January Exam as soon as possible.

2 November, 2007

Non-Fatal Offences Against the Person

Filed under: A2-Level,additional reading,domestic law,Non Fatal Offences — legaleasy @ 1:03 pm

W/E 2nd November 2007

This week we recapped on the five non-fatal offences against the person. These are; common law assault, common law battery, s47 ABH, s20 GBH or malicious wounding and s18 GBH or malicious wounding.

The relevants Acts are – The Offences Against The Person Act 1861 and the Criminal Justice Act 1988.

To be guilty of most criminal offences, it is necessary to show two things – the actus
and the mens rea. Each crime has its own actus and mens rea.

The actus reus is the physical element of the crime. The mens rea is the mental element of the crime – what was the defendant thinking or not thinking about before or during the committing of the crime.

The actus reus can be:-

  • An act;
  • A failure to act (an omission);
  • A state of affairs or strict liability issue.

The actus reus must be a voluntary act – not a reflex action. If there is an absence of fault in an action then a person is generally not liable. The criminal law is usually concerned with fault of the defendant.

There are however, exceptions to these rules – these are known as state of affair cases or strict liability cases. Please refer to your revision guides and class notes for more details.

The normal rule is that an omission or failure to act is not an actus reus. However, there are exceptions to this rule. These are:-

  • Where the defendant has a contractual duty
  • Where there is a duty because of a relationship – between parent and child for example
  • Where a duty has been taken on voluntarily
  • Where there is a duty because of the defendant’s official position – e.g. a policeman
  • Where a duty arises because the defendant has set in motion a chain of events

Mens rea has different levels. The “highest” form of mens rea is intent where the defendant decides deliberately to commit an offence (see Mohan). There is also indirect intent. To prove this you need to show that the defendant was aware of the risks they were taking and that the defendant undertook a voluntary act which you could be virtually certain would lead to serious bodily harm or death (see Nedrick). Finally, there is recklessness – where a defendant knowingly takes an unjustifiable risk. The test for this was set out in Cunningham.

Causation

Causation is the direct link from the defendant’s conduct to the consequence to the victim. There are two types of causation; factual and legal causation.

The test for factual causation is set out in R v White (1910) – the “but for” test.

The test for legal causation is set out in Smith (1959) – is the defendant the “substantial and operating cause”.

The chain of causation can be broken if there is an intervening act (novus actus interveniens). This act has to be significant and sufficiently separate from the defendant’s actions.

The following incidents will not break the chain of causation in law:

  • Physical characteristics of the victim (Hayward)
  • Reasonable consequences of the defendant’s actions (Pagett)
  • Reasonable attempts to escape (Roberts)
  • Negligent medical treatment (Smith)
  • Refusal of medical treatment (Blaue)
  • The switching off of a life support machine (Malcherek)
  • The victim committing suicide (Dhaliwal)

With regards to medical treatment remember the exceptions laid out in cases such as Cheshire and Jordan.

Common Assault

Common assault is the lowest level of offence against the person. It is part of the common law which means it is not in any Act of Parliament but has been built up over centuries through cases and judge made law.

To commit an assault the defendant must intentionally or subjectively recklessly cause another person to fear immediate unlawful violence.

The actus reus requires some words or acts. An omission is not enough. There is no need for physical contact. Examples are: raising a fist; making a threat “I am going to punch you”; pointing a loaded gun at someone (even if it is a replica).

The mens rea for an assault is either the intention to cause another to fear immediate unlawful personal violence or recklessness as to whether such fear is caused. The test for recklessness is subjective.

Common Battery

This is beyond common assault where the defendant intentionally or subjectively recklessly applies unlawful force to another. Usually a battery follows an assault. You raise your fist, you commit an assault, and then hit the victim – this is the battery. You can have battery without assault – if you are hit from behind for example – you have no fear as you don’t see it coming.

The actus reus requires some force, however slight. It can be continuing (as in Fagan) or can be an indirect act such as laying a booby trap. Unlike assault, a battery can be committed by an omission – Santana-Bermudez.

The mens rea for battery is either the intention to apply unlawful physical force or recklessness that the force will be applied. Recklessness is subjective – the defendant must realise the risk and take the risk.

s47 offence

The actus reus for this offence is an assault or battery. There must be actual bodily harm inflicted on the victim. The mens rea for this offence is the same as that for assault or battery. There is no need to prove the defendant intended to injure the victim. All that is required is a simple causal link between the defendant’s actions and the victim suffering an injury (Roberts

s20 offence

The actus reus for this offence is a direct or indirect act or omission. There is no need to prove an assault. A wound is defined as a cutting of the whole skin. Grievous bodily harm means serious harm and can include psychiatric harm. The mens rea is the intention or subjective recklessness as to causing some injury (although this does not need to be serious). (Savage and Parameter)

s18 offence 

The actus reus for this offence is a direct or indirect act or omission which causes an injury to the victim. The injury must be a wound as defined or grievous bodily harm. The mens rea is that the defendant has the specific intention to wound or to cause grievous bodily harm  or to resist or prevent arrest. The CPS have a criteria that they use to suggest evidence of intent – for example a repeated or planned attack; selection of a weapon etc.

Remember – be aware of the CPS charging standards. Ask yourself – can I identify the offence from the injuries sustained to by the victim? You need to be able to do this for the exam.

Additional Reading

Please see my comments previously about keeping up to date with the news. This will help you identify the offences in the exam. Remember if you are not sure if it is a common assault / battery or ABH in the exam DISCUSS BOTH OPTIONS! The examiner knows you are not a CPS lawyer – but does want evidence of your knowledge of the subject.

19 October, 2007

Fatal Offences Against The Person – Involuntary Manslaughter

Filed under: A2-Level,additional reading,domestic law,Fatal Offences — legaleasy @ 12:17 pm

W/E 19th October 2007

This week we looked at the second type of involuntary manslaughter – gross negligence manslaughter.  This arises where the defendant owes a duty of care to the victim and breaches that duty of care.

Adamako is the main case in this area. It was decided in by the House of Lords that a defendant could be convicted of involuntary gross negligence manslaughter by a breach of duty if;

1. the defendant was in breach of a duty of care towards the victim;

2. the breach of duty caused the death if the victim; and

3. the breach of duty was such as to be thought of as gross negligence and therefore a crime.

Breach of Duty

In AdomakoLord Makay stated that the ordinary principles of the law of negligence apply to decide whether the defendant owed the victim a duty of care. Refer to the case of Caparo v Dickman for the principles to establish a duty of care. A defendant will be in breach of duty of care by falling below the standard of care of the ordinary reasonable person.

Causing Death

The “but for” test from White can be used to establish factual causation. If there is a possibility of a novus actus interveniens then the usual rules on legal causation apply.

Gross Negligence

The jury must decide whether the actions were so grossly negligent that they should be classed as a crime, rather than a civil matter. They need to decide whether a reasonable person would have foreseen a serious and obvious risk of death.  Was the conduct so bad in all circumstances to amount to a criminal act or omission.

Additional Reading

Please refer to your revision guides. Have a look at the BBC Website and research stories where defendants have been found guilty of gross negligence manslaughter. What sort of circumstances are they? If you have a better appreciation of how the law works in practice, you will understand the theory better.

12 October, 2007

Fatal Offences Against the Person – Involuntary Manslaughter

Filed under: A2-Level,additional reading,domestic law,Fatal Offences — legaleasy @ 10:26 am

W/E 12th October 2007

This week we started to look at the first type of involuntary manslaughter – unlawful act manslaughter. This is where the defendant did not have the malice aforethought required for murder. It is also known as constructive act manslaughter. This is because the defendant’s actions “construct” to bring about the death of the victim.

4 elements must be established for constructive act manslaughter. These are;

1. an unlawful act;

2. the act must be dangerous;

3. the act must be substantial cause of death;

4. the defendant must have the required mens rea.

Unlawful Act

A criminal act is required. A tort is not sufficient. The unlawful act can be an offence against a person or property. Remember, if there is no unlawful act then there is no unlawful act manslaughter.

The Act Must Be Dangerous

The act is dangerous if a reasonable person would realise that the act could cause some physical harm to another.

Substantial Cause of Death

The unlawful act must be the substantial cause of death. This particularly relevant in cases where the defendant supplies the victim with illegal drugs for example. See the cases of Dalby.

Remember the normal rules of causation apply and there can be no novus actus interviens.

And finally,

Mens Rea

The mens rea required for unlawful act manslaughter is the mens rea required for the unlawful act itself. The prosecution does not have to prove that the defendant was at some risk of causing harm.

Additional Reading

Please refer to your revision guides and the books in the resource centre for further information.

5 October, 2007

Voluntary Manslaughter – Suicide Pact

Filed under: A2-Level,additional reading,domestic law,Fatal Offences — legaleasy @ 5:19 pm

W/E 5th October 2007

This week we finished off looking at special defences by considering the rarest of the defences – suicide pact.

Suicide Pact

This is under s4(1) of the Homicide Act 1957.

“it shall be manslaughter and shall not be murder, for a person acting in pursuance of a suicide pact between him and another to kill the other or be a party to the other being killed by a third party.”

I would refer  you to your handout on this topic for more information. Take note of the subtle difference between a suicide pact and the offence of assisting suicide.

We also looked at the various problems with the current law of murder. One of the main problems is that if a defendant is convicted of  murder they are given a life sentence – there is no discretion. The special defences do go some way to redressing the balance however many critics  (including the Law Commission) do not think they go far enough.

There is also a significant overlap between the defences of diminished responsibility and provocation. Be aware of this in the exam.

Additional Reading

I have in the last few weeks provided you with lots of additional materials. Use them please. The deeper your knowledge, the greater your understanding – the better your result. Promise!

28 September, 2007

Voluntary Manslaughter – Provocation

Filed under: A2-Level,additional reading,domestic law,Fatal Offences — legaleasy @ 5:08 pm

W/E 28th September 2007

This week we continued looking at the special defences – this time concentrating on provocation.

Provocation

For the defence of provocation to work, the defendant must prove that the requirements of s3 of the Homicide Act 1957 have been satisfied. This means the defendant has to show that he was provoked  (whether by things done or by things said or by both together) to lose control.

The loss of self control must be sudden and temporary. It need not be immediate as is demonstrated by the phenomenon of “slow burn” – often demonstrated by victims of domestic violence. A time lapse may be enough to disprove the defence.

It is an objective test. The jury must decide whether in the circumstances a reasonable man would lose their temper. Although the jury can take into account the characteristics of the defendant.

This means that there is a fundamental contradiction at the heart of this defence as would a truly “reasonable” person ever be provoked?

Additional Reading

Please take the time to go back through the case studies looked at in class. You need to know not only the facts of these cases but also the legal principles they demonstrate. Test yourself. It is never too early to start revising!

21 September, 2007

Voluntary Manslaughter

Filed under: A2-Level,additional reading,domestic law,Fatal Offences — legaleasy @ 4:55 pm

W/E 21st September 2007 

This week we started to look at one of the other fatal offences against the person – Voluntary Manslaughter. This arises when a person has been charged with murder but their defence is successful in proving that there was mitigating circumstances – otherwise known as a special defence –  and the murder charge is reduced to one of voluntary manslaughter. The main advantage of this is that it allows a judge flexibility in dealing with the defendant who is responsible for the death of another but under special circumstances.

There are three special defences – these are;

1. diminished responsibility;

2. provocation;

3. suicide pact

Diminished Responsibility

For diminished responsibility the defence must show that the requirements of s2(1) of the Homicide Act 1957 have been satisfied.

This means that they need to show that the defendant was suffering from;

1. an abnormality of mind;

2. this was caused by arrested or retarded development of mind, an inherent cause, disease or injury; and

3. the abnormality of mind substantially impaired his mental responsibility for the killing.

Additional Reading

Please refer to your handouts and revision guides for further information. Read the real life cases provided in the newspaper special. You should become familiar with the types of real life scenarios that amount to diminished responsibility cases. This will help you spot them in the exam.

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