Qualified Lawyers Transfer Scheme (QLTS) Criminal Law and Evidence Syllabus

Name the three special/partial defences to murder that reduce liability to voluntary manslaughter.

Diminished responsibility (Homicide Act 1957 s 2, as amended), loss of control (Coroners and Justice Act 2009 ss 54–55), and killing in pursuance of a suicide pact (Homicide Act 1957 s 4).

State the four elements of diminished responsibility under s 2 Homicide Act 1957 (as amended by the Coroners and Justice Act 2009).

(1) An abnormality of mental functioning; (2) arising from a recognised medical condition; (3) which substantially impaired the defendant's ability to understand the nature of conduct, form a rational judgment, or exercise self-control; and (4) which provides an explanation for the killing (causal connection). Burden on defence on the balance of probabilities.

State the three components of the loss of control defence under ss 54–55 Coroners and Justice Act 2009.

(1) The killing resulted from the defendant's loss of self-control; (2) the loss had a 'qualifying trigger' (fear of serious violence and/or things said/done amounting to circumstances of an extremely grave character giving a justifiable sense of being seriously wronged); (3) a person of the defendant's sex and age with normal tolerance/self-restraint might have reacted similarly. Loss of control need not be sudden; sexual infidelity alone is excluded as a trigger.

What are the two main forms of involuntary manslaughter?

(1) Unlawful act (constructive) manslaughter and (2) gross negligence manslaughter. (Some texts add reckless manslaughter.) Both involve an unlawful killing without the mens rea for murder.

State the four elements of unlawful act (constructive) manslaughter.

(1) An intentional unlawful act (a crime, not an omission); (2) the act is dangerous in the sense a sober and reasonable person would foresee some risk of harm (R v Church); (3) the act caused death; (4) the defendant had the mens rea for the unlawful act (mens rea for the death is not required).

State the elements of gross negligence manslaughter from R v Adomako.

(1) A duty of care owed to the victim; (2) breach of that duty; (3) the breach caused death; (4) a serious and obvious risk of death at the time of breach (R v Rose); and (5) the breach was so gross/bad as to amount to a crime in the jury's view. Mens rea is not required in the conventional sense.

Define assault and battery (common assault) at common law.

Assault: intentionally or recklessly causing the victim to apprehend immediate unlawful personal violence. Battery: intentionally or recklessly inflicting unlawful personal force on another. Both are charged as common assault (Criminal Justice Act 1988 s 39).

State the actus reus and mens rea of assault occasioning actual bodily harm (s 47 OAPA 1861).

Actus reus: an assault or battery occasioning (causing) actual bodily harm (ABH = any hurt or injury interfering with health or comfort, more than trifling). Mens rea: only the mens rea for the assault/battery — no need to foresee ABH (R v Savage; R v Roberts).

Distinguish the s 20 and s 18 offences under the Offences Against the Person Act 1861.

s 20: unlawfully and maliciously wound or inflict grievous bodily harm; mens rea = intention or recklessness as to some harm (Mowatt/Cunningham). s 18: wound or cause GBH with intent to do GBH (or to resist arrest); mens rea = specific intent to cause GBH. s 18 is the more serious (life imprisonment).

What is the meaning of 'wound' and 'grievous bodily harm' under the OAPA 1861?

Wound: a break in the continuity of both layers of the skin (dermis and epidermis), i.e. a break in the whole skin (JCC v Eisenhower). GBH: 'really serious harm' (DPP v Smith), which can include serious psychiatric injury (R v Burstow) and need not be life-threatening.

State the statutory definition of theft under s 1 Theft Act 1968.

A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it. The five elements: appropriation, property, belonging to another, dishonesty, and intention to permanently deprive.

Define 'appropriation' for the purposes of theft (s 3 Theft Act 1968).

Any assumption of the rights of an owner. It can be a single right (Morris), can occur even with the owner's consent (Lawrence; R v Gomez), and can apply to a valid gift (R v Hinks). It is a neutral act made criminal by dishonesty and intention to permanently deprive.

How is dishonesty determined in theft following Ivey v Genting Casinos / Barton & Booth?

Two stages: (1) ascertain the defendant's actual (subjective) state of knowledge or belief as to the facts; (2) decide whether, given that, the conduct was dishonest by the (objective) standards of ordinary decent people. The second leg of the old Ghosh test (did the defendant realise it was dishonest) no longer applies.

What are the three statutory situations under s 2(1) Theft Act 1968 in which a defendant is NOT dishonest?

A belief that: (a) he has a legal right to deprive the other of the property; (b) the owner would have consented if they knew of the appropriation and circumstances; or (c) the owner cannot be discovered by taking reasonable steps. A willingness to pay does not by itself negate dishonesty (s 2(2)).

What does 'intention to permanently deprive' include under s 6 Theft Act 1968?

Beyond the obvious, it includes treating the property as one's own to dispose of regardless of the other's rights (s 6(1)), and borrowing/lending in circumstances equivalent to outright taking (e.g. returning a thing in such a changed state that all its goodness/value has gone — R v Lloyd).

State the definition and key elements of robbery under s 8 Theft Act 1968.

A person is guilty of robbery if he steals (a complete theft is required) and, immediately before or at the time of doing so and in order to do so, uses force on any person or puts/seeks to put any person in fear of being then and there subjected to force. If the theft is incomplete (e.g. not dishonest), there is no robbery.

State the two ways of committing burglary under s 9 Theft Act 1968.

s 9(1)(a): entering a building (or part) as a trespasser with intent to steal, inflict GBH, or do unlawful damage (intent at time of entry). s 9(1)(b): having entered as a trespasser, stealing/attempting to steal or inflicting/attempting to inflict GBH (intent formed after entry). Entry must be effective; defendant must know or be reckless as to being a trespasser.

State the offence of handling stolen goods under s 22 Theft Act 1968 and its mens rea.

Dishonestly receiving stolen goods, or dishonestly undertaking/assisting in their retention, removal, disposal or realisation by or for another, otherwise than in the course of stealing. Mens rea: knowledge or belief that the goods are stolen, plus dishonesty. The goods must actually be stolen goods at the time.

Name the three ways of committing fraud under the Fraud Act 2006.

s 2 — fraud by false representation; s 3 — fraud by failing to disclose information where under a legal duty to disclose; s 4 — fraud by abuse of position. Each requires dishonesty and an intention to make a gain or cause a loss/risk of loss.

State the elements of fraud by false representation (s 2 Fraud Act 2006).

(1) The defendant makes a false representation (express or implied; can be made to a machine); (2) knowing it is or might be untrue or misleading; (3) dishonestly; (4) intending to make a gain for himself/another or cause loss/risk of loss to another. The offence is complete on making the representation — no gain or loss need actually result.

What are the general defences that operate as a complete defence to most crimes?

Insanity, automatism, intoxication (limited), mistake, self-defence/prevention of crime, duress (by threats and of circumstances), necessity, and consent. They negate liability either by negating mens rea/actus reus or by justifying/excusing the conduct.

State the M'Naghten Rules for the defence of insanity.

At the time of the act, the defendant was labouring under a defect of reason, caused by a disease of the mind, such that he did not know the nature and quality of his act, or, if he did know it, did not know that what he was doing was wrong (legally wrong). Burden on defence on the balance of probabilities; verdict = not guilty by reason of insanity.

State the elements of the defence of duress by threats.

From R v Hasan: (1) threat of death or serious injury; (2) directed at the defendant or someone close; (3) the defendant reasonably believed he had good cause to fear death/serious injury (Graham objective/subjective test); (4) a sober person of reasonable firmness would have responded similarly; (5) no safe avenue of escape; (6) direct nexus between threat and crime; (7) no voluntary association with violent criminals. Not available to murder, attempted murder, or some treason.

State the test for self-defence / defence of others / prevention of crime.

(1) Was the use of force necessary in the circumstances as the defendant honestly believed them to be (subjective, even if mistaken — but not if mistake is due to voluntary intoxication, s 76 CJIA 2008)? (2) Was the force reasonable/proportionate in those circumstances (objective)? In householder cases force must not be grossly disproportionate.

How does voluntary intoxication affect liability for specific intent and basic intent offences?

Voluntary intoxication can negate the mens rea of a specific intent offence (e.g. murder, s 18) where the defendant was so intoxicated he could not form the intent (DPP v Majewski; falls to manslaughter/s 20). It is NO defence to a basic intent offence (e.g. assault, s 20, manslaughter), because becoming voluntarily intoxicated is itself reckless.

Name the three inchoate offences and their key statutory sources.

(1) Attempt — Criminal Attempts Act 1981 s 1; (2) Conspiracy — Criminal Law Act 1977 s 1 (statutory) plus some common law conspiracies; (3) Encouraging or assisting crime — Serious Crime Act 2007 ss 44–46 (replacing common law incitement).

State the actus reus and mens rea of a criminal attempt (Criminal Attempts Act 1981).

Actus reus: an act that is 'more than merely preparatory' to the commission of the offence (R v Gullefer; R v Geddes). Mens rea: intention to commit the full offence (intention to bring about the consequence; for attempted murder only intent to kill suffices, not intent to cause GBH — R v Whybrow). Impossibility is no defence (s 1(2)).

State the burden and standard of proof in a criminal trial (the 'golden thread').

The prosecution bears the legal burden of proving the defendant's guilt, and must prove every element beyond reasonable doubt / so that the jury is sure (Woolmington v DPP — the 'golden thread'). The defendant generally bears only an evidential burden when raising a defence.

When does a legal (persuasive) burden fall on the defendant, and to what standard?

Where there is a reverse burden — e.g. insanity, diminished responsibility, or where a statute expressly or impliedly places the burden on the defendant. In such cases the defendant must prove the matter on the balance of probabilities (the civil standard), not beyond reasonable doubt.

How is a confession defined and when must it be excluded under s 76 PACE 1984?

A confession (s 82(1) PACE) includes any statement wholly or partly adverse to its maker. Under s 76(2) the court must exclude a confession if the prosecution cannot prove beyond reasonable doubt that it was NOT obtained (a) by oppression or (b) in consequence of anything said or done likely to render it unreliable.

What is the court's power to exclude unfair evidence under s 78 PACE 1984?

The court may refuse to allow prosecution evidence if, having regard to all the circumstances (including how it was obtained), its admission would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. It is a discretionary exclusion, often used for breaches of PACE Codes.

Define hearsay evidence and state the general rule on its admissibility in criminal proceedings.

Hearsay is a statement made out of court, tendered as evidence of the truth of its contents (s 114 Criminal Justice Act 2003). The general rule is that hearsay is inadmissible unless it falls within an exception: a statutory provision makes it admissible, a preserved common law exception applies, all parties agree, or the court is satisfied it is in the interests of justice (s 114(1)(d)).

Identify the main statutory exceptions allowing hearsay under the Criminal Justice Act 2003.

s 116: witness unavailable (dead, ill, abroad, untraceable, or in fear). s 117: business and other documents. s 118: preserved common law exceptions (e.g. res gestae, confessions, public information, expert evidence base). s 119/120: previous inconsistent/consistent statements. s 114(1)(d): interests of justice 'safety valve'.

What is 'bad character' evidence and what is the gateway structure for admitting a defendant's bad character (s 101 CJA 2003)?

Bad character = evidence of misconduct (commission of an offence or other reprehensible behaviour) other than facts of the offence charged (s 98). A defendant's bad character is admissible only through one of seven gateways in s 101(1)(a)–(g): (a) all parties agree; (b) defendant adduces it; (c) important explanatory evidence; (d) relevant to an important matter in issue between defendant and prosecution (incl. propensity); (e) substantial probative value between co-defendants; (f) correcting a false impression; (g) defendant attacks another's character.

State the Turnbull guidelines for assessing disputed visual identification evidence.

From R v Turnbull: where the case depends wholly or substantially on the correctness of identification which the defence allege is mistaken, the judge must warn the jury of the special need for caution, explain why mistakes can occur (even by honest, convincing witnesses), and direct them to examine the circumstances using the ADVOKATE/Turnbull factors. If the identification evidence is poor and unsupported, the judge should withdraw the case from the jury.

List the ADVOKATE factors used to assess the quality of identification evidence.

Amount of time the suspect was observed; Distance between witness and suspect; Visibility (lighting, conditions); Obstructions to the view; Known to the witness or seen before; Any reason to remember; Time elapsed since the observation; Errors or discrepancies between the description given and the actual appearance.