70 terms

Law Unit 3 OAPA

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Terms in this set (...)

Causation
Factual cause + legal cause + no intervening act
Factual cause
If the consequence would not have occured 'but for' D's conduct PAGETT
Legal cause
D's conduct must be more than a 'minimal' cause of the consequence BENGE
No intervening acts
There must be a direct link from D's conduct to the consequence
- Medical negligence is unlikely to break the chain unless it is so independent of Ds act and 'in itself is so potent in causing death' that Ds acts are insignificant CHESHIRE
R v SMITH
A soldier stabbed another who was dropped twice on route and medics failed to see he had a punctured lung and V died. D was convicted of murder and will only avoid liability for the death if the medical negligence is so overwhelming.
R v JORDAN
D stabbed V who was taken to hospital and given the wrong medical treatment which was 'palpably wrong' V died and this broke the chain of causation as their wounds were healing
General weaknesses on the current law on non-fatals
- No clear seperation between the various offences
- Old fashioned vocabulary used eg 'maliciously' MOWATT
- Wounding would cover a minor cut but s20 and s18 are serious offences
- Sentencing is illogical for s20 and s47
Specific weaknesses on the current law on non-fatals
- 'Assault' has more than one meaning IRELAND
- Lack of correspondence between actus reus and mens rea CHAN FOOK, SAVAGE
- S20 requires an 'inflicting' of gbh whereas s18 uses 'causing' BURSTOW, DICA
Law Commission report on non fatals
Proposes the replacement of OAPA 1861 with a modern act with new offences
- Intentionally causing serious injury (new s18) life imprisonment
- Recklessly causing serious injury (new s20) 7 years
- Intentionally or recklessly causing injury (s47) 5 years

This would provide a clear hierachy of offences using simplified vocabulary and satisfy the correspondence principle. Wounding would only be covered if it amounted to serious injury
Private defence
The right to use force in defence of oneself or another against an unjustifiable attack
Public defence
The right to use force in the public interest to either prevent crime or lawfully srrest someone
2 main points for self defence
- was the force NECESSARY
- was the amount of force used REASONABLE
Necessary force
D is not under a duty to retreat if faced with a threat from another CRIMINAL JUSTICE AND IMMIGRATION ACT 2008
HUSSAIN
HUSSAIN
D attacked a burglar as he was running away. CoA held they could not use the defence of self defence as it was a revenge attack and the use of force was not necessary
ATTORNEY GENERALS REFERENCE
D does not have to wait to be attacked and can make preparations in self defence
D prepared petrol bombs in fear of attack on his shop. CoA accepted this even if they involve breaching the law
WILLIAMS
If D genuinely makes a mistake about needing to act even if it is unreasonable they can be acquitted.
D punched a police officer who he thought was assaulting someone and charged with ABH after the CoA quashed his conviction
O GRADY
A mistaken belief caused by Ds voluntary intoxication is not sufficient for the defence of self defence.
D hit his friend over the headwho he thought was trying to kill him but his defence was rejected due to him being voluntarily intoxicated
MARTIN
Amount of force used must not be excessive. Farmer shot 2 burglars and was denied the defence of self defence
Reasonable force
Force can be disproportionate but not grossly dispropertionate or excessive
Defence of intoxication
Covers alcohol, drugs, other substances.
Is a general defence and D will be acquitted if it succeeds
Using the defence of intoxication depends on...
- Whether the intoxication was (in)voluntary
- Whether the offence charged is ine of basic or specific intent
Specific intent offences
Where the mens rea is intent only
Murder
Basic intent offences
Where the mens rea includes recklessness
Other non fatals
Voluntary intoxication
Where D chooses to take the intoxicating substance
Involuntary intoxication
Where D did not know he was taking an intoxicating substance
SHEEHAN AND MOORE
Where D is voluntarily intoxicated he will have a defence to a specific intent crime provided he is so intoxicated that he has not formed mens rea for the offence

Ds were drunk and threw petrol over a homeless man who they burnt to death but they had no mens rea for murder or gbh and was convictedof msnslaughter
GALLAGHER
Where D has the necessary mens rea despite voluntary intoxication he is guilty of that specific intent crime
D bought a knife and whisky for dutch courage and killed her but he had the mens rea so CoA held he was convicted of murder even though he was drunk
DPP v MAJEWSKI
Voluntary intoxication doesn't cover basic intent crimes as a defence as D is reckless in getting drunk and so has the mens rea
D took alcohol and drugs and attacked people in a pub but he was convicted of all charges as he was reckless
KINGSTON
Involunatary intoxication will not provide a defence if D has the necessary mens rea.
Ds coffee was spiked and he then abused a boy and was charged with indecent assault as he still formed the mens rea
HARDIE
Where D did not have the necassary mens rea due to his involuntary intoxication he will not be guilty of basic or specific crimes unless he was reckless in getting intoxicated
.
D took his girlfriends valium tablets as he was depressed after she threw him out and he set fire to a wardrobe while V was sleeping. His conviction was quashed as he didnt know it makes your behaviour unpredictable and lacked the mens rea
PRETTY V DPP
Consent is never a defence to murder
Express consent
V clearly says that they are willing to consent to a potential injury
Implied consent
Can be inferred from Vs actions so that D does not commit a battery, it is needed for society to function
Public policy exceptions for consent
- Properly conducted sports
- Reasonable surgical interference
- Tattooing and body piercing
- Horseplay
- Dangerous exhibitions
BARNES
D made a tackle on V in a football match and V suffered a serious leg injury

V did not consent to serious injuries and Ds offence of s20 was quashed
WILSON
D branded his initials on his wife's buttocks at her request, she had to seek medical help, the CoA held consensual behaviour between husband and wife should not be criminalised.
JONES AND OTHERS
A group of teenagers tossed 2 other boys into the air causing serious injuries. Ds claimed they believed that the 2 Vs consented and their convictions of s20 was quashed as they genuinely believed they had consented even though the belief was unreasonable
BROWN AND OTHERS
If D deliberately inflicts injury for sexual gratification consent is not allowed

Homosexuals were convicted of s47 and s20 after committing sadomasochistic acts in private
True consent

BURRELL v HARMER
V must understand the nature of Ds act

2 boys got tattoos not understanding the level of pain and so could not consent to it
NEWLAND
There will not be true consent if D deceived V as to their identity or the nature and quality of the act
M'NAGHTEN
The rules of insanity are based on this case, 3 elements have to be proved by D on a balance of probabilities to use the defence
Insanity 3 stage test
- D had a defect of reason at the time of committing the act

- The defect of reason was due to a disease of the mind
- The defect of reason caused D not to know the nature and quality of the act, or not know what he was doing was wrong
What is the special verdict of insanity
Not guilty be reason of insanity
What is a defect of reason (insanity)
D was unable to reason at the time he acted. Temporary absent mindedness or confusion is not enough. CLARKE
What is a disease of the mind (insanity )
Mental disease SULLIVAN- D hit V during an epileptic fit

Physical disease which affects the mind e.g. Brain tumour KEMP- D had a narrowing of arteries reducing blood flow causing D to have a lapse of cnsciousness in which he killed his wife
Internal factor (insanity)
Ds defect of reason must be due to an internal factor to use the defence

HENNESSY- D failed to take his insulin and lost control of the car

BURGESS- D suffered from a sleep disorder and hit V over the head whilst sleepwalking
D must not know the nature or quality of his act or not know what he was doing
D can be temporarily unconscious or use the defence if D did not know what he was doing was legally wrong.
Automatism
Basis is that D has an inability to control their actions
ATTORNEY GENERALS REFERENCE NO 2 (automatism)
D must have no voluntary control over his actions or not be conscious of what he is doing

D killed two people on the motorway after being in a trance like state from driving too long on the motorway. He still had some control so his defence failed
External factor

QUICK
Ds involuntary act must be due to an external factor such as hypnotism or a blow to the head

D a diabetic nurse attacked a patient after failing to eat after taking insulin, this was an external factor and is automatism
Self induced automatism
Where D knows that his conduct is likely to bring on an automatic state
Can be a defence to specific intent crimes but not basic intent ones as D is seen as being reckless in getting into a self induced automatic state unless D didn't know his actions are likely to lead to that state HARDIE
HARDIE
D was depressed after his girlfriend kicked him out, he took V Valium tablets and then set fire to a wardrobe
He has not been reckless in getting intoxicated as he did not know taking the tablets would make his behaviour unpredictable. His conviction of criminal damage was wuashed
What is murder
The unlawful killing of a person in being and under the queens peace with malice aforethought
Actus reus of murder
- Killing must be unlawful through Ds voluntary act or omission which causes the death of V

- D must kill a person in being, V must have a separate existence from its mother ATTORNEY GENERALS REF NO3 where a foetus is injured born alive and dies as a result of the injuries D can be held for murder or manslaughter

- Person who is brain dead is not in being
MALCHEREK doctors turned off a life support machine when V was brain dead
Mens rea for murder
- D must intend to kill or cause GBH.
VICKERS- D hit the sweet shop owner several times who later died as a result of the injuries and D was convicted of murder
- D may directly MOHAN or indirectly intend to kill or cause GBH WOOLLIN
Voluntary manslaughter
Special defence to murder
Where D kills V with malice aforethought but the killing occurs due to a loss of control or diminished responsibility. It is only a partial defence and merely reduces liability
Loss of control ( voluntary manslaughter)
S54 of the CORONERS AND JUSTICE ACT 2009

- Loss of self control COCKER
- There can be a time delay between the qualifying trigger and the killing
Qualifying trigger (voluntary manslaughter)
Section 55

Ds loss of control must be due to :
- a fear of serious violence from V against D or someone else WARD
- Things said /done which were extremely grave and caused D to have a justifiable sense of being seriously wronged ZEBEDEE

Certain triggers are excluded:
- Sexual infidelity (on its own) CLINTON
- Where D encourages violence from V DAWES
Reasonable man (loss of control)
A person of Ds sex and age with s normal degree of tolerance must react in a similar way
Which act introduced diminished responsibility?
Homicide act 1957
Elements of diminished responsibility
1) Abnormality of mental functioning (BYRNE)
2) Caused by a recognised medical condition
3) It must impair Ds ability to
- understand the nature of his conduct
- form a rational judgment
- exercise self control
4) Prove that his abnormality of mental functioning provides an explanation for his conduct in doing or being s party to the killing
Unlawful act manslaughter
1) Must be an unlawful act (LAMB)
2) The act must be dangerous (CHURCH)
3) Must be a cause of Vs death (CATO) (KENNEDY)
4) D had the mens rea for the unlawful act (NEWBURY AND JONES)
First element of unlawful act manslaughter
D must do an unlawful act (LAMB)
- An omission is insufficient (LOWE)
- Ds act can be aimed at property (GOODFELLOW)
Second element of unlawful act manslaughter
The unlawful act must be dangerous in an objective test (CHURCH) a reasonable man must foresee some a risk of some harm to another person resulting from the unlawful act
- The unlawful act will be dangerous if a reasonable man is aware of Vs frailty and the risk of physical harm by shock to him (WATSON)
First element of gross negligence manslaughter
1) D must owe V a duty of care
-ADOMAKO - doctor to patient
-ANDREWS -motorist to pedestrians
-WACKER - doesn't matter if V was a party to an illegal act
-EVANS - contributed to the creation of a state of affairs
Gross negligence manslaughter
1) D must owe V a duty of care (DONOGHUE V STEVENSON)
2) D must breach his duty of care
3) Ds negligence must cause Vs death
4) There was a serious and obvious risk of death (MISRA)
5) Ds negligence must be gross
What is a duty of care
A duty of care is owed to persons who are so closely and directly affected by Ds conduct that they ought reasonably to have them in contemplation
Second element of gross negligence manslaughter
Breached duty of care
- D fails to reach the standard of care expected of the reasonable person in the same circumstances (ADOMAKO)
Fourth element of gross negligence manslaughter
Serious and obvious risk of death
- The circumstances must be such that a reasonable person would have foreseen a serious and obvious risk of death (MISRA)
Fifth element of gross negligence manslaughter
The negligence must be gross
- The jury must consider whether Ds conduct was so bad in all the circumstances as to amount to a criminal act or omission