Exam Technique As you work through each offence use the following structure: - PowerPoint Presentation

Slide1

Exam Technique

As

you work through each offence use the following structure:

I

dentify

– the appropriate offence/defence

D

efine

– the offence/defence

E

xplain

– the legal

rules using authorities (cases and statutes) to support your

answer

A

pply

– these rules to the facts of the

questionSlide2

Murder

Actus

Reus

:

Unlawful killing

Of a reasonable person in being

Under the Queen’s peace

Causation

:

Factual

Causation (“But for” test)

Legal

Causation (Substantial and Operating cause

Any

Novus

Actus

Interveniens

? (by 3

rd

party or victim)

Mens

Rea

:

Express

or Implied

malice?

Direct

or Indirect

Intent – if indirect consider

foresight

of consequences

Transferred

Malice? Slide3

Loss

of Control

Did D actually

lose self-control

?

Was there a

delay between the incident causing the loss of control and the killing

? Is this relevant?

Did D lose control because of

one of the qualifying triggers

?

Fear of serious violence

from V

(subjective test)

Things done and/or said which constituted circumstances of a grave character

and also

caused D to have a justifiable sense of being seriously

wronged (objective test)

Do one of the

restrictions

apply?

Did D

incite

the victim?

Did D lose control because of

sexual infidelity

? If so, are there any other factors that could be considered

(Clinton)?

Was D acting out of a considered desire for

revenge

?

Objective test

– Might a

person of

D’s age and sex

, with a

normal degree of tolerance and self-restraint

and in the

circumstances of D

have

reacted in the same or a similar

way

Must discount any characteristics or conditions that would make D more likely to lose self-controlSlide4

Diminished

Responsibility

Is there an abnormality

of mental

f

unctioning

arising from a

r

ecognised

m

edical

c

ondition

Does this s

ubstantially impair

D’s ability

to either:

Understand

the nature of his conduct; or

Form a

rational judgement

; or

Exercise

self-control

Does the a

bnormality

of

mental functioning provide

an

e

xplanation for the killing (causal link)

Abnormality

of mental functioning

must

cause

D’s conduct

or at least be a significant contributory factor in causing it

Consider

effects of

intoxication –

disregard

the effects of

voluntary

intoxication

If

Alcohol Dependency Syndrome –

jury to only consider effects of

involuntary intoxication

and disregard voluntary intoxicationSlide5

Gross Negligence Manslaughter

Did D owe V a

duty of care

?

Was

there a

breach

in

duty?

Objective - Did D

act as a

"reasonable person would do in their position".

Did the breach directly result

in V’s

death (

causation

)?

Was

there a

risk of death

?

Was

the negligence serious enough to give rise to

criminal

liability (“gross negligence”)?Slide6

Unlawful Act Manslaughter

Was there an unlawful act?

Was

it a dangerous act?

Church

–

objective test -

all

sober and reasonable

people would recognise it would subject the other person to the

risk of some harm

, not necessarily serious harm

Did

the act cause the death?

Normal rules of causation and thin skull rule apply

Did

D have the

mens

rea

for the unlawful act (not the killing)?

Need

intention for the unlawful act

– will either be

intent

or

subjective recklessness

depending on the unlawful

actSlide7

Assault

Was there an

act

? What was it?

Did the act:

Cause

(normal causation rules)

V to

apprehend

Immediate

Violence/force?

Was there

intention

or

recklessness

to cause V to apprehend unlawful and immediate violenceSlide8

Battery

Was there

force

? What was it?

Was the force

unlawful

?

Would not be unlawful if V consented, if police preventing a crime, or if everyday contact

I

ndirect battery?

O

mission?

– if so only if duty to act

Did D

intend

or was he

subjectively reckless

to apply

force?

T

ransferred

malice

?Slide9

S.47

Assault Occasioning Actual Bodily Harm

Was there an

assault

(assault or battery)?

Is there

causation

? The

assault or battery must

occasion

the

harm

Is there

actual bodily harm

?

Look at nature of injuries

Is there

mens

rea

for either assault or battery

?:

Does not need to be any intent or recklessness as to any harmSlide10

S.20 Grievous Bodily Harm

Is there either:

An

unlawful wounding

; or

An

unlawful

infliction of

Grievous Bodily Harm

?

Look at level of injuries

Is victim vulnerable? If so, ABH injuries could amount to GBH

Is there a series of ABH injuries? If so, together could amount to GBH

Did D

intend

to inflict

some harm

or was he

subjectively reckless

as to whether such harm would occur?Slide11

S.18 Grievous Bodily Harm

with Intent

Is there either:

An

unlawful wounding

; or

An

unlawful

infliction of

Grievous Bodily Harm

?

Look at level of injuries

Is victim vulnerable? If so, ABH injuries could amount to GBH

Is there a series of ABH injuries? If so, together could amount to GBH

Did

D either intend to

either:

C

ause

GBH (intend serious harm)

Recklessness not enough

Includes

oblique/indirect

intent

Resist

or prevent an

arrest AND intended

or

was reckless as

to cause some harm Slide12

Self-Defence

Was

there a

necessity

for the force?

In the circumstances as they actually exist? or

In the circumstances as they are genuinely believed to be by D?

But remember if D is voluntarily intoxicated, he cannot rely on his mistaken belief

There can still be necessity even if an attack hasn’t occurred yet provided it was imminent

Was the force used by D

reasonable

in the circumstances as D perceived them?

Was the force excessive? Was the threat still present or had it passed? Was the amount of force unreasonable?Slide13

Intoxication

Voluntary or Involuntary Intoxication?

Involuntary

V

oluntary

Did intoxication remove MR?

YES = defence of Intoxication - Acquittal

NO – no defence of Intoxication

Was crime Basic or Specific Intent?

Basic Intent (recklessness) – No defence

Specific Intent (Intent only) – has intoxication removed intention?

YES = defence of Intoxication – but D convicted of lesser basic intent crime

NO – no defence of IntoxicationSlide14

Consent

Is

it

an offence that D can consent to

?

Fatal offence – no

Non-fatal offence – usually

cannot consent to

more than battery

But “recognised exceptions”:

Normal sports activities

Normal social intercourse

Medical etc.

Horseplay

Lawful correction

Sexual Activities – not normally a recognised exception if more than battery (but inconsistent case law

Is the consent

genuine

?

Consider age and mental capability

FraudSlide15

Insanity

Is there a

defect of reason

?

Was

D intoxicated? If so no defence if it caused the defect of

reason

Is it

caused by a disease of the mind

? (remember it must be an

internal factor

for insanity)

Does

one

of the following apply?

D does not know the nature and quality of his

act

He did not know what he was doing; or

He did not appreciate the consequences of his act; or

He did not appreciate the circumstances in which he was

acting

OR D

does not know that what he was doing was

wrong

Explain consequence of the defence

Potential unlimited hospital order (mandatory if murder)Slide16

Automatism

Is D’s act

involuntary

?

Is D’s act caused by an

external factor

? (if it is internal consider insanity)

Is the automatism

self-induced

? (If so, no defence)