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CRIMINAL (Defences (Insanity (Test (1) must satisfy the M'Nagthen…

- - - - Disease of Mind
        (1) any diease that effects functioning of the mind regardless of physical/mental, permanent/inermittent (Sullivan [1983])
        (2) it needn't be psychotic (diabetes; Quick [1973], epilepsy; Sullivan [1983] and sleepwalking; Burgess [1991] all suffice.
        (3) must be internally sourced so hyperglycemia suffices but hypoglycemia does not (Quick). PTSD arising from rape counts as an external source (T [1990])
      - Defect of Reason
        (1) moment of absent-mindedness not sufficient (Clark [1972])
        (2) irresistible impulses not sufficient solo (Kopsch [1925])
      - Knowing was Wrong
        (1) need only not know act was legally wrong, as opposed to morally wrong (Windle [1952])
  - - - Reasonable Force
        (1) an objective test as to what would be reasonable in the circumstances D beleives them to be
        (2) no duty to retreat but this is taken into account (Duffy [2007])
        (3) and pre-emptive strike can be sufficient (Beckford [1987])
        (4) D's belief in reasonableness of force is relevant, especially regarding honest/instinctive reactions (McCann [1996]).
        (5) Excessive belief of force due to psychiatric condition is not relevant (Martin [2002])
        (6) defence not allowed against lawful force (Browne [1973])
        (7) can't rely on facts D did not know even if justify actions (Dadson [1850])
        (8) if force is excessive, defence is lost (Clegg [1995])
      - Defence of Property
        (1) lethal force not allowed, but can use force to detain (Faraj [2007])
        (2) can use force against property to protect property (s.5 Criminal Damage Act 1971)
        (3) self-help to defend property should be a last resort (Burns [2010])
  - - - Threat from Another
        (1) threat must be based on commission of crime committed (Mullally [2012])
        (2) must be threat of serious injury/death to self or stranger (Shayler [2001])
        (3) damage to property (Lynch [1975]) or reputation (Valderrama-Vega [1985]) not sufficient.
        (4) must be sufficiently imminent (Abdul-Hussein [1999])
        (5) can't be a reasonable chance of escape (Hasan)
        (6) voluntary exposure to risk is fatal to defence (Hasan)
      - Circumstance
        (1) D acted to avoid risk of injury/death due to presented circumstances
        (2) this is broader than threats (Willer [1986]) but cannot be used to avoid pain (Quayle [2005])
        (3) if the risk has stemmed from D, defence cannot be used (Rodger [1998])
        (4) follows same test as threats (see above)
      - Necessity
        (1) committed to avoid greater harm
        (2) recognised for medical decisions where doctors have to act in best interest of patient (Gillick [1985])
        (3) permits medical treatment to save life/health where patient has no capacity as long as done by medical personnel (Quayle [2005])
        (4) strictly controlled for policy reasons (Jones [2006])
        (5) potentially available for murder (Re A [2000])
        (6) surrounded by statutory provisions for guidance
      - Marital Coercion
        (1) under Crim Just Act 1925 but has been subsequently overruled
        (2) only provided for husband over wife coercion
        (3) it did potentially extend to moral/emotional coercion not just physical (Shortland [1996])
    - - Reasonable Firmness
        (1) average member of public
        (2) age/sex of D relevant
        (3) IQ (Bowen [1996]) and addiction (Flatt [1996]) not relevant
        (4) mentally impaired condition might be relevant (Antar [2004])
      - Proportionality
        (1) act committed must be not more than needed to discharge threat
        (2) harm caused must be proportionate to harm avoided
        (3) not available for murder charges (Howe [1987])
- - - - Abnormality
        (1) effecively same as previous as a derogation from the norm, but jury no requires expert medical testimony
      - Recognised Mental Disorder
        (1) does not cover 'acute intoxication' (Dowd [2012])
        (2) does not cover childhood immaturity
        (3) does not cover mercy killings
      - Impairment
        (1) more than trivial, less than complete (Golds [2014])
        (2) scope was narrowed by 3 requirements
      - Explanation
        (1) causal link between abnormality and behaviour that caused death
        (2) needn't be sole cause but requires significant contributory factor (Dietschmann [2003]).
  - - - Must be a Crime
        (1) doesn't have to be a crime against a person (e.g. criminal damage (Goodfellow [1986]) and burglary (Watson [1999]) suffice).
        (2) needn't even be directed at a person (e.g. arson; JF [2015])
      - Must be Dangerous
        (1) follows Church [1966] reasonable sober man test, and is objective.
        (2) if a reasonable sober man would be able to foresee some risk of harm (which needn't be serious) then it is 'dangerous'
        (3) foreseeability for fright/distress not usually sufficient (Daswon [1985]) unless physical injury is foreseeable as result of fright (Watson [1989])
- - - - Sexual - s.78
        (1) touching is sexual if a reasonable person would believe:
        (a) the act because of it's nature is sexual (looking at the act itself), or
        (b) because of its nature it MAY be sexual and because of its circumstances or purpose it IS sexual
        (2) there are two requirements (H [2005]), if act is inherently sexual, and if purpose of act in circumstances makes the act sexual
      - Touching - s.79(8)
        (1) any part of the body
        (2) or anything else
        (3) through anything (e.g. clothes; H [2005])
        (4) has to be touched, apprehension not enough
  - - - MR
        
        Consent
        (1) previously D simply had to have a reasonable honest belief in consent (Morgan [1976])
        (2) now, prosecution must prove D did not have a reasonable (only) belief in consent with regard to all circumstances
        (3) presumptions in s.75/76 can be used by P to prove D did not believe in consent
        (4) if these cannot be used (or are rebutted) P can prove in 'normal way' of persuasive evidence for the jury
        
        Penetration
        (1) intention to penetrate anus/mouth/vagina with penis
      - AR
        
        Consent
        Old Law
        (1) Olugboja [1982] - 'mere submission' is not consent
        (2) Malone [1998] - V needn't positively dissent/protest
        s.74 SO 2003
        (1) consent = 'agreed by choice, with freedom and capacity to make that choice'.
        (2) this follows some evidential (s.75) and conclusive (s.76) presumptions of whether consent could be given
        
        s.76 Conclusive Presumptions
        (1) consent is vitiated and D did not reasonably believe in consent if it is found on the facts that:
        (a) D intentionally deceived V as to the nature/purpose of the act, or
        (b) D has intentionally induced V into sexual relations by impersonating someone that V knows
        (2) this is non-rebuttable, and consent vitiated if this is proved
        
        s.75(2) Evidential Presumptions
        (1) consent is presumed vitiated if on the facts;
        (a) D is using violence toward V
        (b) V was unlawfully detained (Stockholm Syndrome)
        (c) V was alseep
        (d) V could not communicate consent due to disability
        (e) V under influence of stupefying substance
        (2) this presumption can be rebutted by D and then it is back to prosecution to prove that consent was not given
        
        s.74 SOA 2003
        (1) choice - awareness of nature of act, and deception may vitiate consent (Assange [2011])
        (2) freedom - lack thereof vitiates consent (e.g. through violence)
        (3) capacity - e.g. mentally impaired/drugged/drunk. Requires awareness of the nature of act (Jheeta [2007]). Alcohol only vitiates consent where V is in such a state they have lost capacity (Bree [2007]).
        
        Penetration
        (1) this is a continuing act from entry to withdrawal (s.79(2))
        (2) failure to withdraw after removal of consent = rape (Copper [1994])
        (3) only requires slightest degree of penetration (s.79(9))
        (4) no need to ejaculation/emission necessary
- - - - s.4 - False Position
        (1) a crime is committed it:
        (a) occupies a position in which D is expected to safeguard the financial interests of another person, then
        (b) dishonestly abuse position, and
        (c) intends by abuse to make a gain/loss (or risk of ) to other
        (2) an abuse can be done by an act or omission.
        
        MR
        (1) same as with false representation
        
        Impact
        (1) Law Comm 276 - V put their trust in D and so an abuse should be criminalised
        (2) standard fiduciary relationships apply (trustee/beneficiary etc)
        (3) this is interpreted widely so you can assumed position by conduct (Silverman [1988] - long term customer of firm)
      - s.3 - Disclose Information
        (1) a crime is committed if:
        (a) D fails to disclose information he is legally required to disclose, with the intent
        (b) to make a gain, or a loss (or risk of loss) of another
        
        AR
        (1) failure to disclose - so an omission
        (2) must be a legal duty to disclose (statute, contract etc)
        MR
        (1) same as for false representation
      - s.2 - False Representation
        (1) a crime is committed if:
        (a) if D dishonestly makes a false representation, and
        (b) intends by making the representation to, make a gain for themselves, or cause a loss (or risk thereof) for another
        
        Mental Elements
        (1) D knows, or might know, that representation is untrue/misleading
        (2) 'dishonest' - no reference in FA '06 and no referral to TA '68
        (3) intending to make gain/loss - this needn't mean to intend to make a profit (AG Ref (No 1) [2002])
        
        Intent to Make Gain
        (1) s.5(3) - gain = keeping what one has, as well as, getting what one does not have
        (2) s.5(4) - loss = not getting what one might get and parting with what one has
        (3) this is about intention not achievement
        (4) no need to intend permanent loss/gain (Allen [1985])
        
        Dishonesty
        (1) no mention in FA '06, TA '68* defines in s.2
        (2) residual test for dishonesty is now Ghosh
        
        Knows, or Might Know
        (1) includes times where D does not know for certain that representation is false but is aware of risk
        (2) subjectively aware of risk
        (3) 'might be' - can be construed very widely, especially alongside 'dishonesty' test
        
        What is a Representation?
        (1) s.2(3) - a statement of fact or law (express or implied s.2(4), OR a statement of intent for D or a 3rd party
        (2) representation needn't be seen/heard/received/understood by V, simply making the representation is the AR
        (3) this does not include representations of opinion
        (4) silence can be fraud, but not if it's just leaving V ignorant, silence has to imply a representation of fact/law (e.g. Rai [2000]; loan applied for in mother's name, she died, and didn't mention when loan approved).
        (5) can be implied by conduct (Idrees [2010] - D takes theory test for Y.
        
        What is False?
        (1) s.2(2) - something that is untrue or misleading, that D knows \, or might know is untrue or misleading.
        (2) P does have to prove that representation was in fact untrue/misleading.
        (3) D's knowledge can be reckless if they are aware of a serious risk of the information being untrue/misleading.
        
        Impact
        (1) this is action based, so dependent on if D has committed the actions, not necessarily what results come of it.
        (2) this is more clear than the old law 'deception' as it does not require V to necessarily believe in the representation. Crime is solely based on D's actions.
        (3) Lambie [1981] - when using another's CC in a store, before 2006 had to prove shop assistant was decieved so if told 'this card will ensure Visa pay you' is no deception. This complicated the law. Now, although representation from D still needs to be proven, it is irrelevant what shop assistant may understand.
      - s.11 - Obtaining Services Dishonestly
        (1) crime occurs if:
        (a) D obtains for himself or another,
        (b) services,
        (c) dishonestly,
        (d) knowing services are made available only with payment, or the promise of payment, and
        (e) avoids, or intents to avoid payment
  - - - Belonging to Another
        s.5(1) - property belongs to another if they have possession or control of it, or have any proprietary right or interest.
        
        Belonging
        (1) broad definition, not just strict 'owning'
        (2) usually follow the common law
        (3) s.5 does cover a number of other rights, including property under obligation or property under mistake
      - Property
        s.4(1) - includes all money, and all property, real (land/improvements to land) or personal (movable private property), things in action, and other intangible property.
        
        Not included?
        (1) cannot steal from land or things affixed to land except in certain circumstances:
        (a) trustee working in breach of trust
        (b) a person not in possession who appropriates something that forms land
        (c) a tenant who removes some fixture
        (2) wild mushrooms/flowers/foliage (unless for reward)
        (3) wild animals are property but not 'wild creatures'
        
        Intangible Property
        (1) including patents/copyrights/design rights
        (2) confidential information cannot be classed as intangible property (Oxford v Moss [1979])
        
        Money/Things in Action
        (1) money = notes/coins not accounts
        (2) things in action = money paid into an account, as the bank then owns the money, and owes you a debt that you can enforce
        (3) stealing a card and taking money from an ATM could be theft from bank (for the physical notes) and from V for 'things in action'
        (4) example being Chan Man-Sin [1988] where forged cheques were used to take money from bank accounts.
      - Appropriation
        s.3 - an assumption by D of the rights of the owner of the property. This includes later assuming rights even if you haven't 'stolen' the property.
        
        History
        (1) previously could not appropriate a gift (Mazo [1997])
        (2) had to inconsistent with owners wishes (Hall [1973])
        (3) had to be an unlawful assumption of rights (Hall)
        (4) this was tricky and made theft
        
        Now
        (1) Gomez [1993] clarified the law where the HL held;
        (a) appropriation includes 'any rights of owner' (approving Morris [1983])
        (b) owners consent/authorisation is irrelevant (approving Lawrence [1971])
        (2) Hinks [2000] - approving Gomez now has appropriation as entirely neutral and relatively broad
      - Dishonesty
        s.2(1) - someone is not being dishonest if:
        (a) appropriates property with belief of of right in law to deprive another of the property
        (b) if he appropriates the property with belief that the owner would consent to the appropriation if they had known about it
        (c) if he appropriates the property in belief that the owner could not be found if reasonable steps taken (unless a trustee)
        (2) appropriation can still be dishonest if money was paid for property
        
        When?
        (1) dishonesty can occur after the fact and still be theft
        
        What?
        (1) Feely [1973] - manager took money from till with intention to pay back. Trial judge held theft dependent on if money taken or not. CA held that dishonest was a common English word for jury to define. Jury should apply an objective test (is it dishonest to ordinary standards of honesty?).
        (2) Ghosh [1982] - doctor takes money for surgery he does not perform. Court held that dishonesty was two prong test:
        (a) was it dishonest to ordinary standards? (if yes go to b)
        (b) did D realise it was dishonest to ordinary standards?
      - Intention to Permanently Deprive
        s.6 - temporary albeit dishonest use of property is not theft. If the intention is to use the property with owners rights to wear down its value until worthless (e.g. a season ticket) then IPD is established. Known as 'borrowing to equivalent to outright taking'.
        
        Borrowing equiv. to taking
        (1) Lloyd [1985] - borrowing films and pirating is not theft as original value is not diminished
        (2) DPP v SJ [2001] - D snapped headphones (cans) of V, if practical usefulness is lost then IPD is established.
        
        Conditional Intent
        (1) Easom [1971] - if anticipating theft (e.g. taking handbag to see if worth stealing) not theft (but attempted theft).
        (2) Raphael [2008] - if property held at ransom then it is theft, but if jury can find D intended to give it back (and ransom was on an off chance) then there is no theft.
  - - - Robbery
        (1) if before or during a theft force is used against V, or V is induced to believe fear of force then robbery is committed.
        (2) must establish theft exists before robbery can succeed (Robinson [1977])
        (3) this is specific intent, prosecution must prove D intended to rob
        
        Force
        (1) legislation silent, question of fact for the jury (Dawson [1976])
        (2) if theft is after force then jury has to find that force was 'in order' to steal (Harris [1988])
        (3) no MR necessary for force, only for theft
    - - Burglary
        (1) if D enters a building as a trespasser and has intent to commit any offence in (3), or
        (2) having entered the building as a trespasser steals or attempts to steal anything, or inflicts or intends to inflict GBH on anyone within then burglary is committed.
        (3) offences for (1) are stealing/attempt to steal, inflicting/attempting to inflict GBH or causing any unlawful damage within.
        (4) if the building is a dwelling the sentence is 14 years, if it is another building, 10 years.
        
        Entry
        (1) must be substantial and effective without the owners consent (Collins [1973])
        (2) any part of the body can count as a burglary (Ryan [1996] where partial body was trapped in window).
        
        AR
        (1) must be a trespasser, this is without permission or exceeding permission. To exceed permission D must know, or ought to know, they are a trespasser (Jones [1976] - go into parents home to take TVs - so exceeding permission).
        MR
        (1) intention, or recklessness to trespass. and
        (2) entered with intent to commit:
        *(a) stealing, gbh, rape, unlawful damage, or
        (b) entered and committed, or attempted to commit stealing/gbh
- - - - Basics
        (1) based in the common law, however, recognised as offences under s.39 Criminal Justice Act 1988].
        (2) Assault = no actually touching but intentionally or recklessly inciting an apprehension of immediate violence
        (3) Battery = intentionally or recklessly unlawfully touching another
        (4) these are distinct offences and cannot be applied under the same charge (Little [1992])
      - Assault - AR
        (1) V must believe they are about to be 'touched'
        (2) must be fear of imminent touching (Smith v Woking [1983])
        (3) threat can be negated by subsequent words (Tuberville v Savage [1669]
        (4) doesn't matter if threat is empty (Logdon [1976]) as long as it is credible/could be carried out (Arobieke [1988])
        (5) intimidating silence over phone can constitute enough of a threat for assault to be satisfied.
      - Assault - MR
        (1) intention to cause apprehension, or
        (2) subjective recklessness (Cunnigham), so D must foresee a risk of V apprehending violence (Venna [1975])
      - Battery - AR
        (1) requires the unlawful touching of V
        (2) no injury is required (Collins v Wilcock [1984])
        (3) must be non-consensual (but not necessarily hostile), although (Brown [1994] limits this to battery; not ABH).
        (4) can be carried out by an instrument (Fagan [1968] - a car)
        (5) can be done by omission as long as duty is present (Fagan)
        (6) psychological damage is not battery (Ireland [1997])
        (7) can be indirect (DPP v K [1990])
      - Battery - MR
        (1) intentional touching, or
        (2) subjective recklessness as to touching
    - - AR
        (1) must be a technical assault or battery, that
        (2) causes actual bodily harm
        (3) ABH = a wound more than transient or trifling that interferes with the comfort of V, but it needn't be permanent (Donovan [1934]).
        (4) hysteria (Miller [1954]), and recognised mental disorders (Ireland [1997]) can satisfy ABH, as long as with expert testimony (Chan Fook [1994])
      - MR
        (1) intention or recklessness to cause the assault or battery
        (2) Savage [1991] - means to throw beer but throws glass too. HL holds that ABH is satisfied if, D has MR for assault/battery and ABH has been caused. D is not required to have intended or be reckless to the ABH.
    - - AR
        (1) wounding (breaking continuity of skin), or
        (2) causing or inflicting GBH
        (3) GBH = jury's interpretation of 'really serious' (DPP v Smith [1960]
        (4) transmission of STI (Dica [2004]), and giving mental disorder (Ireland) can = GBH
        (5) inflict/cause mean the same thing (Burstow [1998])
        (6) there is no requirement for permanence or medical attention (Bollom [2004]).
      - s.20 MR
        (1) intentionally or recklessly (Cunningham) inflicts the GBH
        (2) D has to have foreseen risk of some physical harm but not necessarily of GBH (Mowatt [1968])
        (3) sex whilst knowing you're infected counts as foreseeing physical harm (Konzani [2005])
      - s.18 MR
        (1) maliciously wound with intent to cause GBH
        (2) CA held that intent is required not just foresight for s.18 (Belfon [1976])
- - - - Agreement
        (1) two or more people
        (2) cannot conspire with victim alone
        (3) cannot conspire with someone under the age of criminal liability alone
        (4) cannot usually conspire with own company
        (5) married couples/civil partners cannot conspire with one another (Mawji)
        (6) must be definite and concluded with purpose of unlawful purpose
        (7) if you leave room for intentions you're not conspiring (Jackson [1985])
    - - Definitions
        (1) aid - providing help of assistance
        (2) abet - encouraging or inciting during offence
        (3) counsel - encouraging or inciting before offence
        (4) procure - causing the principal to commit offence
      - Joint Enterprise
        (1) two or more parties embark together to commission an offence.
        (2) liability extends to accomplices one party commits and incidental/consequential offence and the other part foresaw a risk of that possibility happening
        (3) previously following Chan Wing-Sui [1985] D only had to foresee a real or substantial risk that Y would commit offence
        (4) now, following Jogee [2016] D must intend for Y to commit the offence