Flashcards
Introductory Law.
Cards in this deck (64)
- 1Evidence“Information that provides grounds for
belief that a particular fact or set of facts
is true.”
It is the information by which facts in
issue tend to be proved or disproved. - 2EvidenceEvidence must be relevant in order for a court to receive it.
E.g. it must relate to some fact which is a proper object of proof in the
proceedings.
- The facts which or proper objects of proof are sometimes called material
facts.
Evidence must also be admissible, meaning that it can be properly received
by the court as a matter of the law.
- An example of potentially relevant materials being inadmissible in court is
when we discuss the concept of hearsay evidence. - 3Facts In Issuealso called “Material facts.”
These are all the facts that are necessary for a party to prove in order to succeed in the litigation.
They comprise the facts consisting a cause of action in a civil proceeding, or the facts that make up the offence
charged in a criminal case, together in either case with any facts that must be proved by the defendant to
establish a defence
In any given case the facts in issue are determined by reference to the substantive law and the statements of
case, which include for this purpose the indictment, information or written charge in criminal proceedings. - 4Facts In Issue what is an indictment ?An indictment is the formal statement of the charge in proceedings on indictment in the Crown court.
Informations and written charges are formal statements of charges in summary proceedings in magistrates'’
courts. - 5Evidentiary FactsOften cover objects of proof
The cater gory consists of facts introduced into the proceedings as a means of
proof of the facts in issue. - 6Evidentiary Facts Material facts –a brick was used to break the window.
- 7Evidentiary Facts Facts in issue –the DNA found on the brick related to the defendant.
- 8Evidentiary Facts Evidentiary facts -(An accumulation of the above) covers the charges and any
defence the accused may supply that might mitigate the facts in issue. - 9CausationOffences against the person can fall into fatal and non-fatal offences.
In order for the charge of Murder to be proven, causation must be established, in this context:
• The prosecution must prove, beyond a reasonable doubt, that death occurred, as a direct consequence of the defendants actions. - 10CausationFactual causation is based on the principle of the ‘but for’ test.
- 11Causation White (1910)where the defendant
intended to poison his mother though a drink. However, the mother
had died due to a heart attack before the poison took take effect. The
court held that there was no direct link between the cause of death
and the defendants actions, therefore it was held that ‘but for’ the
defendants actions the victim would have died. - 12Causation Pagett (1983)The defendant used his pregnant girlfriend as a shield in a
police shot out. The girlfriend died. The court held that ‘but for’
the actions of the defendant the victim would not have died - 13Evidentiary Facts – DirectDirect Evidence is testimony given by a witness of the whiteness's
perception by his own senses (sigh, hearing, etc.) of one or more of the facts
in issue.
It can also include the presentation of documents or things in issue to the
tribunal of fact, when the tribunal may be asked to act on its own
perception of the nature or quality of the document or item.
Direct evidence of facts in issue may give rise to questions concerning the
credibility and reliability of the testifying witness, but does not normally
present problems of relevance. - 14Evidentiary Facts – CircumstantialCircumstantial evidence is often used as
a compendious term to describe and
evidence of facts relevant to the issue.
There are many types of circumstantial
evidence. - 15compendiousContaining or stating briefly and concisely all the essentials; succinct
- 16Evidence & Forensics The purpose of forensic science and its role on evidence is:1. To establish that a particular person was at a given place at a given time;
2. To establish that a particular individual carried out an activity (i.e. Signing a forged cheque or breaking and entering);
3. To establish that something was done with a particular instrument, for example that a door was forced with a particular tool or the bullet was fired from a particular firearm;
4. To establish a relationship between two persons, (e.g. Paternity, immigration or contesting legal documents.) - 17Evidence & Forensics. An ideal system An ideal system would:- Enable us to identify features unique to an individual.
- Identify those features that do not change over time.
- Have features that are unambiguous so that two experts could describe the same feature the same way.
- The ideal system would place those individuals at the scene.
- An of course be cheap and easy to operate - 18Reliabilityeye witness testimony can be
tenuous
Reliable is a terms that appears to have no fixed meaning in the legal context - 19Reliability Sensitivitycan the technique be relied
upon to produce usable results from
the quantity and quality of material
being examined; - 20Reliability Quality controlare the factors which affect the outcomes of the tests understood, and were proper control procedures carried out to prevent outcomes distorted by unwanted elements, such as contamination;
- 21Reliability Discriminatory powercan this evidence, as
used in forensic science, distinguish between individuals or only between relatively large classes or the population (e.g. The difference between blood group and DNA profile); - 22Reliability Discriminatory powercan this evidence, as
used in forensic science, distinguish between individuals or only between relatively large classes
or the population (e.g. the difference between blood group and DNA profile); - 23Reliability Honesty –sometimes, regrettably, has the scientist told the whole truth about the tests, the observations and the inferences?
Could they be interpreted another way? - 24Relevance and probative value.The first requirement that any piece
of evidence tendered in court must
satisfy is that it must be relevant.
In order to be considered, an item of
evidence must be one that might
rationally affect the decision - 25Relevance and admissibility.“(1)....without any exception, nothing which is not, or is not supposed to be, logically relevant is admissible; and (2)... Subject to many exceptions and qualifications, whatever is logically relevant is admissible....” – Thayer
- 26Reasons for excluding admissible evidence. Evidence may be excluded:If the witness is deemed incompetent.
If it related to previous conviction, the character or disposition of the accused.
It falls under hearsay
It is non-expert opinion evidence
It is privileged information
It is withheld as a matter of public policy - 27Guilty? Or not Guilty?Actus non fit reus nisi sit rea
which means; “the act is not regarded as “guilty” unless the mind is guilty
Therefore intent or the prediction of harmful events by a reasonable person must be proven in order for a crime to be committed - 28Mens rea and motiveMens rea is not the same as motive.
The reason that an individual commits an unlawful act is the motive. Whether the
individual intended the act or predicted or foresaw the consequences is the mens rea.
Intention is separate from desire.
In other words you can act unlawfully by an omission. - 29Reform of the Law on HomicideIn December 2005, the Law Commission published a paper
(Consultation paper no 177) that would reform the structure of
voluntary and involuntary manslaughter and the structure of
homicide offences.
The paper was titled “A New Homicide Act for England and Wales?”
And proposed a three tier structure. - 30Reform of the Law on Homicide • The three tier structure:• Murder,
• Manslaughter and
• Infanticide (Law Com No 304), was finally published in November 2006 - 31Reform of the Law on Homicide. The three tier structure including penalties on conviction.• First degree murder (mandatory life)
• Second degree murder (discretionary
life)
• Manslaughter (fixed term maximum) - 32Murder. A definition.Murder and Manslaughter are two of the offences that constitute Homicide.
Subject to three exceptions (see Voluntary Manslaughter) the crime of murder is committed, where a person:
of sound mind and discretion (i.e. sane);
unlawfully kills (i.e. not self-defence or other justified killing);
any reasonable creature (human being); in being (born alive and breathingc through its own lungs - Rance v Mid-Downs Health Authority (1991) 1 All ER 801 and AG Ref No 3 of 1994 (1997) 3 All ER 936;
under the Queen's Peace;
with intent to kill or cause grievous bodily harm (GBH). - 33Murder.Where the act or omission occurred after 7 June 1996, death no longer needs to
follow within a year and a day. Note however that the Attorney General's consent must be obtained before initiating proceedings, if:
1) the injury alleged to have caused the death was sustained more than three years before the death occurred; or
2) the accused has previously been convicted of an offence committed in
circumstances alleged to be connected to the death. Please refer to Consents to
Prosecute, elsewhere in the Legal Guidance. - 34MurderAs these offences are highly sensitive, and to ensure consistency of approach, all cases in which
a homicide prosecution is being considered where either death occurs more than 3 years after
the original injury was sustained or after a person has previously been convicted of an offence committed in circumstances connected with the death require the approval of the Director of Public Prosecutions' Principal Legal Advisor prior to the obtaining of the Attorney General's
consent.
A British subject can be indicted for murder or manslaughter in England and Wales even when
he commits the offence outside the jurisdiction. The nationality of the victim is immaterial: section 9 Offences against the Person Act 1861.
Murder cannot be committed by a company or other corporation. (However, see Corporate
Manslaughter elsewhere in the Legal Guidance) - 35Murder. Novus actus interveniens A break in the chain of causation. Smith (1959)where a soldier was stabbed in the lungs. On the way to the medical centre he was dropped. When he eventually got there, the medical staff attempted to give him artificial respiration by pumping on his chest. This worsened his condition and he died. Although the treatment he had received drastically reduced his chances of survival, his original attacker was found guilty of his murder.
- 36Murder. Novus actus interveniens. A break in the chain of causation. Cheshire (1991)a victim had been shot in the stomach and thigh. In hospital, a tube was inserted in his throat to help him breathe more easily. As a result of rare complications following this tracheotomy, the victim died. The complications had not been noticed by the doctors. Although his wounds at the time were no longer life-threatening, his original assailant was held responsible for his death.
- 37Murder – causation and Victims Own Act Victims own act is where a victim who feels threatened takes drastic actions to escape and in doing so is injured or is killed. Roberts 1971This can be seen in the case of Roberts (1971) where the driver of the car
turned down a side road and subjected his passenger to unwanted sexual
advances. She jumped out of the moving car in order to escape, and was
injured. It was held that the defendant was liable for her injuries. There
was direct line of causation between his conduct and her injuries which
had not been broken by her act. - 38Murder – causation and Victims Own Act. Another example Williams 1991• However, in the case of Williams (1991), the victim jumped
out o f a moving car because he alleged that there had been
an attempt to steal his wallet. Because this was held to be
an unreasonable reaction under the circumstances and
disproportionate to the threat, it was held that the chain of
causation had been broken by the victim’s intervening act.
The defendant was not liable for the victim’s injuries. - 39Murder – transferred maliceTransferred malice is when the
individual did not intend to
harm “that person” but did so
“by accident” when intending
to cause another harm. - 40Murder – transferred malice – example. Case precident: R v Latimer (1886) 17 QBD 359The defendant struck a blow with his belt at Horace Chapple which recoiled off him, severely injuring an
innocent bystander.
The defendant was convicted of maliciously wounding the victim, and appealed on the ground that it had
never been his intention to hurt her.
The court held that the conviction would be affirmed.
The defendant had committed the actus reus of the offence with the necessary mens rea, ie he had acted
maliciously. There was no requirement in the relevant act that his mens rea should relate to a named victim.
Thus, Latimer's malice was transferred from his intended to his unintended victim. - 41Murder – transferred malice – example. Case precident: R v Latimer (1886) 17 QBD 359 simply putIf you intended to shoot A, but miss and shoot B instead; you are still liable for murder.
Note: the harm caused MUST coincide with the malice being transferred. - 42Provocation.As covered by s.3 Homicide Act 1957.
Only a partial defence to fatal offence - Can reduce the charge of murder to manslaughter if the defendant is able to prove a ‘sudden and temporary loss of control.’ (Subjective.)
Would a reasonable person with the characteristics of the accused have reacted in that
way?
Cumulative provocation? - 43R v Ahluwalia(1993) CAAhluwalia was subjected to 10 years of spousal violence and degradation, she threw petrol in her husband's
bedroom and set it alight, causing his death.
Held: Only Parliament, not the courts, could permit a provocation defence in circumstances of 'a "slow-burn"
reaction [to long-term spousal violence] rather than by an immediate loss of control'.
The subjective element in the defence of provocation would not as a matter of law be negated simply
because of the delayed reaction in such cases, provided that there was at the time of the killing a 'sudden and
temporary loss of self-control' caused by the alleged provocation. However, the longer the delay and the
stronger the evidence of deliberation on the part of the defendant, the more likely it will be that the
prosecution will negative provocation.' No evidence was adduced at trial that D suffered from a post-traumatic
stress disorder or 'Battered Woman Syndrome', so as to effect the characteristics relevant to the
reasonableness of D's actions under the second part of the provocation test. - 44R v Ahluwalia(1993) CANote The Court of Appeal admitted evidence at the appeal level, quashing the murder condition on the basis of
D's depressiv - 45Self-defence.As in common Law and s.3 Criminal Law Act 1967.
“...a person may use such force as is reasonable in the circumstances in the
prevention of crime.”
Self-defence is a full defence to ALL charges of violence against the person –
will result in an acquittal if proved. - 46Self-defence. The defendant must provide evidence for the following;- Necessity – a belief that you were faced with an imminent attack
and had no choice but to defend yourself.
- Reasonableness – the response was proportionate to the threat. - 47Manslaughter Manslaughter can be committed in one of three ways:1) killing with the intent for murder but where a partial defence applies, namely loss of control, diminished
responsibility or killing pursuant to a suicide pact.
2) conduct that was grossly negligent given the risk of death, and did kill, is manslaughter ("gross negligence
manslaughter"); and
3) conduct taking the form of an unlawful act involving a danger of some harm, that resulted in death, is
manslaughter ("unlawful and dangerous act manslaughter"). - 48ManslaughterThe term "involuntary manslaughter" is commonly used to describe a manslaughter falling within (2) and (3)
while (1) is referred to as "voluntary manslaughter".
There are of course other specific homicide offences, for example, infanticide, and causing death by
dangerous or careless driving. For dangerous driving see CPS Guidance on prosecuting cases of Bad Driving
elsewhere in the Legal Guidance. Guidance on Corporate Manslaughter is available elsewhere in the Legal
Guidance. - 49Voluntary & Involuntary manslaughter. VoluntaryMalice aforethought is present.
Circumstances reduce blame.
• Provocation
• Diminished responsibility. - 50Voluntary & Involuntary manslaughter. InvoluntaryMalice aforethought is not present.
Circumstances were to blame.
• Unlawful act.
• Gross Negligence. - 51Unlawful act manslaughter.The defendants act must have caused the death of another
(the same principles of causation as with murder.)
The act committed by the defendant must have been unlawful.
The defendants act must also have been dangerous. (Exposing the victim to risk of harm.) - 52R v Kennedy. – Case ExampleR v Kennedy [1999] Crim LR 65 Court of Appeal
The appellant prepared a solution of heroin filled a syringe and handed it to Mr Bosque, a fellow resident at a hostel. Bosque injected himself and died. The appellant was convicted of supplying a class A drug and constructive manslaughter. The appellant appealed contending that there was no direct causal link between the unlawful act of supplying heroin and the death of Bosque.
Held:
Appeal dismissed. Conviction upheld. The unlawful act was Bosque injecting himself, which the appellant assisted. The injection by Bosque was the direct cause of death. - 53DPP v Newbury.In DPP v Newbury 1977 – the defendant does not have to realise their act is dangerous – objective test.
but “a reasonable and sober person” must be endowed with the knowledge that the defendant processed.
but should “reasonable and sober person” would recognise the act much inevitably subject the other person to, at least, the risk of harm resulting in wherefrom, albeit not serious harm – Edmund Davies. - 54DPP v NewburyDPP v Newbury [1977] AC 500 House of Lords
Two 15 year old boys threw a paving slab off a railway bridge as a train approached. The paving slab went
through a glass window on the cab of the train and struck the guard killing him. The boys were convicted
of manslaughter. The Court of Appeal dismissed the boys' appeals. The boys appealed to the Lords with
the following certified question of law:
" can a defendant be properly convicted of manslaughter, when his mind is not affected by drink or drugs,
if he did not foresee that his act might cause harm to another?"
Held:
There is no requirement that the defendant foresees that some harm will result from his action. The
applicable law is that stated in R v Larkin as modified in R v Church. The statement relating to foresight made by Lord Denning in Gray v Barr was erroneous and not binding in the criminal division of the Court
of Appeal. - 55Gross Negligent ManslaughterIt is rare within the law that an offence can be committed by a failure to act but Gross negligent manslaughter is one of those instances.
- 56Gross Negligent Manslaughter Whilst there is no general duty to act when others are in peril, common law does recognise liability for omissions in specific situations:special relationships
assumption by conduct
responsibility under statute
responsibility under contract
where the defendant causes a dangerous situation - 57R v Malchereck (1981).In R v Malchereck the defendant claimed a defence of novus actus interveniens. – Meaning that the doctors actions would have interrupted the chain of causation.
The defendant stabbed his wife.
His wife was taken to hospital & appeared to recover but collapsed.
A clot was removed but the victim was placed on life support.
After a time the doctor declared the victim brain-dead and discontinued the life support.
HELD- rejected, the D's act was an operating and substantial cause of death. - 58R v Adomako (1994).The defendant was an anaesthetist. They failed to observe during an eye operation that the tube inserted in
the victims mouth had become detached from the ventilator, causing the victim to suffer a cardiac arrest and
eventually die.
Held: D was guilty of manslaughter by gross negligence, which is established where D breached a duty of care
towards V that caused V’s death and that amounted to gross negligence. - 59R v Adomako (1994). Lord MacKay LC:“…gross negligence…depends…on the seriousness of the breach of the duty committed by the defendant in all
the circumstances in which he was placed when it occurred and whether, having regard to the risk of death
involved, the conduct of the defendant was so bad in all the circumstances as to amount in the jury’s judgment
to a criminal act or omission”. - 60the essential ingredients of involuntary manslaughter by breach of duty:(1) proof of the existence of the duty;
(2) breach of that duty causing death; and
(3) gross negligence which the jury considered justified a criminal conviction. - 61Summary Actus Reus Murder & Manslaughter.
- 62Automatism Insane and non-insane automatismInsane = internal (e.g. Schizophrenia.)
Non – insane = external (e.g. Triggered by an external factor but is NOT a
defence is self induced.) - 63AutomatismAutomatism is defined as a defect of reason from disease of the mind.
“... a self-induced incapacity will not excuse...nor will one which could have
reasonable been foreseen..” – R v Quick [1973].
You must prove both a ‘disease of the mind’ & ‘a defect of reason.’ - 64R v Clarke [1972] 1 All ER 219 Court of AppealMrs Clarke, a 58 year old woman, absent-mindedly placed a jar of mincemeat, a jar of coffee
and some butter into her bag whilst shopping in a supermarket. She had no recollection of
placing the items in her bag. Medical evidence was given at her trial which stated that she was
suffering from depression and was diabetic. The trial judge ruled that this raised the defence
of insanity. At this point Mrs Clarke changed her plea to guilty and then appealed against the
judge's finding of insanity.
The court of appeal disapproved of this – even if depression was a ‘disease of the mind,’
forgetfulness is not a defect of reason.
Held: Guilty - Theft
Short periods of absent-mindedness fell far short of amounting to a defect of reason.
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