Flashcards
Law Unit 2
Cards in this deck (100)
- 1What is the general rule of omissions?Can't be guilty for a failure to act - Stephens Digest on Criminal Law
- 2What are the exceptions to the general rule of omissions?Contractual duty to act - Pittwood
Duty due to relationship - Gibbins and Proctor
Duty voluntarily - Stone and Dobinson
Duty due to official position - Dytham
Duty arises when D set in motion a chain of events - Miller - 3What is the legal rule and case for factual causation?But for test from R v White
- 4What is the legal rule and case for legal causation?Operating and substantial cause test from R v Smith
- 5What is the meaning of the thin skull rule, and what cases demonstrate this?Take your victim and you find him, R v Blaue, R v Hayward
- 6Novus actus with examplesVictims own actions - "daft and unreasonable" - R v Roberts, R v Williams
Act of 3rd party - Jordan, Smith, Cheshire
Natural but unpredictable event - 73 types of mens rea with test and exampleDirect - Mohan - decision to bring about a prohibited consequence
Indirect - R v Woollin - virtual certainty test
Recklessness - Cunningham - realising the risk but taking it anyway - 8What is transferred malice?when someone intended to commit an offence against one person but instead committed a similar offence against someone else - Latimer / Pembilton
- 9what is a strict liability offence?Where the defendant is guilty only for committing the actus reus, no mens rea is required - Larsonneur, Harrow London Borough Council v Shah
- 10why should we have strict liability offences?Helps protect society - public safety - R v Blake
Encourages higher standards - hygiene - Alphacell v Woodward - 11Whats wrong with strict liability offences?Makes people guilty when not blameworthy - Harrow London Borough Council v Shah
- 12what is absolute liability?The actus reus was commited involuntarily - no need for mens rea
- 13Whats the coincidence rule?in order for defendant to be guilty of an offence, the actus reus and mens rea must happen at the same time - Fagan v Metropolitan Police
- 14Where can the actus reus and mens rea happen at different times?When the actus reus is made a continuing act - Thabo Meli / Church
- 15Definition of assaultIntentionally or recklessly causing the victim to apprehend immediate and unlawful personal violence - Fagan
- 16A/R of assault (5 points)Emphasis on what victim thought would happen - Logdon
Actions alone - Smith v Woking Police
Words alone - Burstow
Words can negate - Tuberville v Savage
Immediate = no instantaneous - Smith v Woking Police - 17M/R of assaultIntentionally/recklessly causing V to apprehend immediate and unlawful personal violence - Savage
- 18Definition of batteryIntentionally or recklessly applying unlawful force on another - Ireland;Burstow
- 19A/R for battery (3 points)Smallest of touches - Collins v Wilcock
Touching clothes is sufficient - Thomas
Indirect battery - DPP v K / Haystead - 20M/R for batteryIntentionally/recklessly appling unlawful force on another - Venna
- 21S47 definitionAssault or battery occasioning ABH - S47 OAPA 1861
- 22A/R for s47Assault or battery
Occasioning = causing - 23A/R for ABHABH - any hurt or injury calculated to interfere with the health or comfort of the victim - Miller
Includes momentarily loss of consciousness - T v DPP
Psychiatric harm is sufficient - Chan-Fook - 24M/R for S47No addtional mens rea - Savage;Parmenter
(only mens rea of assault/battery) - 25Definition of S20Wounding or causing GBH - S20 OAPA 1861
- 26A/R for S20Wound - cut or break in continuity of skin - JCC v Eisenhower
GBH - really serious harm - DPP v Smith
Lots of smaller injuries can be GBH - Bollom / Brown
Disease can be GBH - Dica - 27M/R for s20intentionally/recklessly causing some harm - Mowatt
- 28S18 definitionWounding or causing GBH with intent to cause GBH - S18 OAPA 1861
- 29A/R of S18Wound - cut or break in continuity of skin - JCC v Eisenhower
GBH - really serious harm - DPP v Smith
Lots of smaller injuries can be GBH - Bollom / Brown
Disease can be GBH - Dica - 30M/R to S18Intention to cause serious harm (GBH)
- 31what happens before court?Summons / Charged
Preliminary issues (any appearance in court before trial) - 32what kind of preliminary issues are there?Medical issues
Venue
Plea (guilty/not guilty)
Translators
Bail
Legal finance - 33What is bail?Letting the defendant out until the date of his trial
- 34What act says there is a general right to bail?S4 Bail Act 1976
- 35what is police bail?Police officers can grant bail at any location immediately after arrest under the Criminal Justice Act 2003
- 36what conditions can police put on bail?Surrendering passport
Returning regularly to police station etc - 37what factors are considered when deciding bail?How serious the crime is / nature of crime
Any previous crimes, associations, character
What evidence is provided against the defendant - 38What is court bail?Courts can decide to refuse bail if they believe:
D would not surrender to custody
They would commit an offence while on bail
Interfere with witnesses
In the interest of D's protection - 39What are the court imposed conditions on bail?Surrender passport
Return to police station regularly
Decide where D should live - Bail hostel?
Curfew - electric tag
Sureties - someone to pay if D doesn't turn up to court - 40when will bail be refusedWhen D is charged with murder, attempted murder, manslaughter, rape or attempted rape and has served a custodial sentence for a similar offence
D was already on bail when committing the offence - 41What is a summary offence?The least serious offence, trial in Magistrates court
- 42what is a triable either way offence?More serious, can be heard in either Magistrates or Crown Court
- 43What is an indictable offence?Most serious offence, preliminary hearing in Magistrates but trail heard in Crown Court
- 44what do magistrates court do?Issue arrest and search warrants
Make decisions on bail applications
Try summary and either way offences
Preliminary hearing of indictable offences - 45What do the crown court do?Try either way and indictable offences and any appeals
Sentence cases where the magistrates refer to the crown court - 46what is the relevance of the burden of proof?It must be proven by the prosecution that the D had committed the actus reus and mens rea of an offence at the same time - standard is beyond reasonable doubt
- 47What factors do court consider when sentencing?Aggravating/mitigating factors
Sentencing tariff
Guilty plea
Degree of risk and extent of danger
Background of D
Maximum sentences - 48What aggravating factors are there?Previous convictions
If D was on bail
Religious or racial hostility
Hostility to disabled or homosexual
If D was part of group
V vulnerable
Was V part of public service? - 49what mitigating factors are there?Mental illness of D
Physical illness of D
No previous convictions
Evidence of genuine guilt feeling
Good co-operation with police - 50What is plea bargaining?If D makes a guilty plea, they will receive a lesser sentence
- 51Plea and sending for trial - Summary offences1. Go to Magistrates - charge announced and D must enter plea
2. Guilty - sentence there and then or adjourn for full report
Not guilty - case adjourned - set date or have pre-trail review - 52Plea and sending for trial - Either way offences1. Plea before venue
2. Guilty - Magistrates unless they don't have power
Not guilty - D gets to chose court but Magistrates may still send to Crown - 53Plea and sending for trial - indictable1. First hearing at Magistrates Court - no plea
2. Crown court - makes plea (plea and case management hearing)
3. guilty - may sentence or wait for pre-trial review
Not guilty - case adjourned, witnesses etc - 54What are the four aims of sentencing?Retribution
Deterrence
Rehabilitation
Reparation - 55What is retribution?This is based on the idea of punishment - doesn't aim to reduce future crimes committed by D
There are sentencing guidelines to guide judges - 56What is individual deterrence?Making the defendant afraid of future punishment to make them not commit crimes in the future
- 57What is general deterrence?Where the general population is deterred from committing offences because of punishments to other people
- 58What is rehabilitation?Aims to get people back into society, often includes giving the D new skills or attending classes like anger management
- 59what is reparation?Compensating the victim for the crime by paying money or returning stolen goods
Direct reparation - where the defendant comes face to face with the victims to see how their actions have had an affect - 603 elements of negligence1. D owed C a duty of care
2. D breached his duty
3. The breach caused the damage/injury - 61Whats the Caparo Test?1. was damage/harm reasonably foreseeable?
2. is there a sufficiently proximate relationship between C and D?
3. is it fair, just and reasonable to impose a duty? - 62Where was damage reasonably foreseeable?Kent v Griffiths - failure of ambulance to arrive
Jolley v Sutton London Borough council - foreseeable that boys would play on boat - 63where wasn't damage foreseeable?Bourhill v Young
Topp v london County Bus Ltd - 64Explain proximityA duty will only arise if C and D have close enough relationship
Hill v CC of West Yorkshire - V and police not close enough
Osman v Ferguson - police knew the schoolboy - 65Whats the meaning of fair, just and reasonable?The courts must find it fair, just and reasonable to impose a duty, cant impose on public services
Hill v CC of West Yorkshire
Mitchell v Glasgow City Council - 66Where was it shown to be fair to impose a duty?MPC v Reeves
Capital & Counties v Hamshire CC - 67how do we decide if someone has breached their duty of care?D has breached his duty when he goes beyond the standard of a reasonable man
- 68Who is the reasonable man?Blyth v Birmingham Waterworks : the ordinary man performing a particular task reasonably competently
- 69What are the different standards of care?The ordinary man
The newbie
The professional
The young - 70Explain the standard of the ordinary manWells v Cooper - expected to meet the same standard as a reasonable competent person doing the same task
- 71Explain the standard of the newbieNettleship v Weston - the expected standard of newbies is that of a reasonably competent person, there is no special rules if you've just started
- 72What is the standard of the professional?Bolam - the professional is judged against a standard set by other professionals in the same job
- 73What does the case of Bolitho state?1. does the conduct of the D fall below the standard of the ordinary competent professional?
2. is there a substantial body of opinion within the profession that would support the decision taken by the defendant? - 74What is the standard for the young?Mullins v Richards - the standard is of a reasonable person of the same age
- 75What does the case of Roe v Minister of Health concern?Foreseeable Risk: the defendant will not have breached their duty if the harm was not foreseeable
- 76Name the four risk factorsSpecial characteristics
Size of the risk
Practical precautions
Benefits of taking the risk - 772 cases for special characteristicsParis v Stepney Borough Council
Walker v Northumberland CC - 782 cases for size of the riskBolton v Stone
Haley v London Electricity Board - 792 cases for practical precautionsBolton v Stone
Latimer v AEC - 802 cases for benefits of risk takingWatt v Hertfordshire CC
Day v High Performance Sports - 81What case supports the but for test in negligence?Barnett v Chelsea and Kensington Hospitals
- 82What is the case for a nous acts in negligence?MPC v Reeves
Orange v CC of West Yorkshire - 83What does remoteness of damage mean?the damage must not be too remote from D's negligence
- 84What does The Wagon Mound represent?If THE damage was reasonably foreseeable
- 85The type of injury must be foreseeable, which cases show this?Hughes v Lord Advocate
Bradford v Robinson Rentals
Doughty v Turner Asbestos - 86Which case supports the thin skull rule for negligence?Smith v Leech Brain
- 87what are the civil courts?County court
High court (QBD)
Court of Appeal
Supreme Court - 88Where can you go for personal injury claims? (up to £50,000 and over £50,000)Up to - County court
Over - county court or high court - 89where can you go for damage to property claims? (unto £25,000 and over £25,000)Up to - county court
Over - county court or high court - 90How do you sue someone for negligence?1. Pre-action protocol - letter before claim
2. Issue a claim form - 1 to D, 3 to court
3. D must defend: admit and pay, admit but disagree with amount, dispute
4. Dispute = serve defence within 14 days - extra 14 if serve acknowledgment of service
5. Allocation questionnaire - select track - 91What are damages?It is money/compensation that a claimant receives following a successful claim
- 92Whats the aim of damages?to put the claimant back in the position they were in before the incident (if the incident would not have occurred).
- 93What are general damages?damages that are difficult to put a figure on - pain, suffering, loss of amenity (PSLA)
-future medical care and assistance
- future loss of earnings - 94How is it worked out how much is awarded for PSLA?JC headlines cover -
cosmetic/psychological damage
loss to quality of life/life expectancy
temporary/permanent injury
time spent in hospital or receiving additional treatment
any ongoing pain - 95What is loss of amenity?Compensating the claimant for loss of enjoyment or not being able to do their daily activities
- 96What are special damages?Compensating the C for any losses incurred up to the date of trail
Given an exact figure:
- medical expenses
- loss of earnings
- damage to goods - 97How are damages paid?Normally, one lump sum
Damages Act 1996 allowed the payment in a structured settlement - 98What does res ipsa loquitur mean?the thing speaks for itself
- 99What has to be proven to use res ipsa loquitur?- D was in control of the situation
- injury was more than likely cause by the negligence
- there is no other explanation - 100What must the D prove for the burden of proof?They must prove that they're not negligent
- Scott v London and St Katherine Docks
-Mohan v Osbourne
- Pearson v North Western Gas Board
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- A level Law Flashcards on Law Unit 2, created by Kennedy Lee on 16/04/2017.
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- Kennedy Lee
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