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AO3 - Criminal Law - Coggle Diagram
AO3 - Criminal Law
Non-fatal offences
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s20 OAPA 1861
:( has same maximum sentence as s47, even where D causes GBH which is much more serious that ABH
:( wounding can be a minor cut but GBH is always serious making it illogical for them to be in the same category
s47 OAPA 1861
:( jump from maximum sentence of 6 months imprisonment for assault/battery to 5 years for ABH for an offence that doesn't require D to foresee outcome
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Fatal offences
Murder
:( definition very outdated with language used old + key aspects such as death or human being not defined in statute
:( required mens rea confusing concept as oblique intent/implied malice sufficient to satisfy requirement even though this means death may have not been intended but will still result in mandatory life sentence
:( sentencing unfair + inflexible as mandatory life sentence is passed for all murders from terrorists to contact killers to abuse victims + mercy killers so single uniquely severe penalty doesn't reflect views of cross section of public
:) mitigated to an extent by discretion judge has in setting minimum term as this varies based on facts of case
Voluntary manslaughter
:) defences reformed in Coroner's and Justice Act 2009 = language modernised + defences updated (e.g. Provocation replaced with Loss of Control)
:) defence of diminished responsibility requires medical evidence of condition responsible for abnormality of mental functioning, preventing misuse of defence
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Property offences
Theft
:) wide interpretation of appropriation allows law to cover wider range of criminal activity than simply 'taking' which allows for better protection of the public
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Defences
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Insanity
:( burden of proof being on defence possibly in breach of Article 6 of the ECHR which states D is innocent until proven guilty
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Intoxication
:( defence creates conflict between public policy + legal principles as public policy is based on public protection + encouragement of good behaviour while legal principles impose liability where there's fault
Duress
:( rule defence of duress can't apply to murder can cause injustices for particular groups of defendants (e.g. juveniles + young people less mature than adults so are less able to withstand serious threats
:( duress not available for murder but available for charge under s18 OAPA 1861 where mens rea of intention to cause GBH can be same as for murder
Attempt
:( not always easy to following reasoning in decisions as the term more than merely preparatory doesn't make it clear how one is to distinguish between acts which are merely preparatory + those which are more than merely preparatory
:) having a higher required mens rea for attempted murder decreases the likelihood of wrongful convictions as it must be proved beyond all reasonable doubt D had intention to kill rather than just intention to cause GBH
:) decision from Attorney General's Reference (No.s 1 + 2 of 1979) means that where D has conditional intent, they can still be guilty of attempt even where they don't take anything, preventing them escaping liability