Consolidation Notes on the entire Criminal Litigation module covering:
- Offences
- Police powers
- Police station advice and inferences from silence
- Bail
- Allocation
- Evidence
- Sentencing and appeals
/!/ These notes have been restructured to optimise exam performance a...
Offences – for the CPS to bring a case to court for any of the below, there must be sufficient evidence to provide for a realistic prospect of conviction, i.e., the AR +MR being satisfied.
Theft offences
Offence Type Statute Definitive AR MR Defence Comment
Guideline
General Theft Either way s.1 Theft p. 306 Dishonestly appropriates property …with the intention of Honest belief that s/he had the Dishonesty test: was what was done
Act 1968 belonging to another… permanently depriving the legal right to appropriate the dishonest according to the ordinary
other of it. property of the other. standards of reasonable and honest
people - since Ivey v Genting Casinos
(UK) Ltd [2017], overruling second
(Did not intend to permanently
limb of R v Ghosh [1982].
deprive so doesn’t count as theft
anyway)
Robbery Indictable only s.8 Theft p. 281 Stealing (theft – AR ) and either …with the intention of What if force is used after the
(dwelling) Act 1968 1) immediately before or at permanently depriving the stealing takes place? No robbery.
the time of doing so and to other of it
do so uses force on any
What if the force is accidental? No
person
and the intention to use robbery.
N.B. Think of
force to steal
Robbery as
2) OR puts or seeks to put any
aggravated
person in fear of being then
theft
and there subjected to
force.
(Domestic) Either way s.9 Theft p.245 A person enters as a trespasser a Knowledge that they are Trespasser covers those who may
Burglary Act 1968, building or part of a building trespassing or reckless as have permission to be in the building
to whether or not they are but exceed that permission by doing
trespassing something which they were not
invited to do.
Intent to steal
Going equipped Either way s. 25 Theft p. 324 any person when not at his place
for theft Act 1968, of abode has with him any article
for use during or in connection
with any burglary or theft.
Offence Type Statute Definitive AR MR Defence Comment
Guideline
Common Summary s. 39 p.225 unlawful application Intention to cause apprehension of Self-defence Positive act required vs. omission to
assault/ battery Criminal of force. immediate unlawful violence OR act and act need not cause injury.
Justice Act
Consent
1988
Subjective recklessness as to that
consequence (‘Cunningham
recklessness')
Assault Either way s. 47 p.221 Assault (=unlawful Intention to cause apprehension of Self-defence Harm can include psychiatric shock
occasioning Offences application of force) immediate unlawful violence OR
ABH against or battery (=unlawful
Consent ABH has been defined as any injury
the application of force)
Subjective recklessness as to that which is ‘calculated to interfere with
person act resulting, directly or
consequence (‘Cunningham the health of comfort of the victim.
(OAPA) indirectly, in ABH
recklessness') Minor cuts and bruises may satisfy
the test although often ABH is
charged for injuries such as broken
teeth, extensive bruising, or cuts, etc
which require medical treatment.
Wounding or Either way s. 20 p.217 Unlawfully and ‘Malicious’ Self-defence Wound = breaking of the ‘whole’
inflicting GBH OAPA maliciously wound or skin or the continuity of the skin by
inflict GBH upon any way of unlawful application of force.
intention to cause some bodily harm OR Consent
other person, either
with or without any
Inflicting = either directly or
weapon or subjective recklessness as to causing
indirectly, i.e., telephone calls
instrument. some bodily harm (‘Cunningham
leading to psychiatric injury.
recklessness'). In either case, it doesn’t
have to be intent or recklessness as to
the exact harm that resulted.
Wounding or Indictable only s. 18 p.213 By any means With intent to do some grievous bodily Self-defence Same comments re. above.
inflicting GBH OAPA whatsoever unlawfully harm to any person, or with intent to
with intent and maliciously resist or prevent the lawful
wound or cause any apprehension or detainer of any person
GBH to any person. (also required malice)
A person may use such force as is reasonable in the circumstances for the purpose of:
self-defence,
defence of another,
defence of property (all foregoing: Criminal Justice and Immigration Act 2008, s.76)
prevention of crime and lawful arrest (foregoing: Criminal Law Act 1967, s.3).
For a defence of self-defence to succeed:
D had an honest belief that the use of force was necessary
D must only use reasonable force. Objective: jury puts themselves in D’s position and must assess whether D’s actions were necessary
The force used by D must be proportionate in the circumstances as D believed them to be
The evidential burden is on D (=evidence to suggest that D was acting in self-defence), the legal burden is on the prosecution (=D wasn’t lawfully acting in self-defence)
!/!: carrying a weapon in self-defence is only a defence in limited circumstances, i.e., in the fact of an imminent attack.
Drug offences
Offence Type Statute Definitive AR MR Defence Comment
Guideline
Possession of a Either way s. 5(2) p.273 Unlawful possession of a Knowledge of possession. Misuse of Drugs Act 1971, s.5(4) ‘Possession’ = physical control.
controlled drug Misuse of controlled drug MDA: the purpose of taking
Drugs Act possession of the controlled drug
If charges allege possession of one
(MDA) is to prevent another from
particular drug then it must be
1971 committing in the future or
identified and shown to be beyond
continuing to commit an offence in
the proscribed levels.
connection with the drug.
Misuse of Drugs Act 1971, s.28
(see below).
Supplying a Either way s. 4(3) p.264 To supply or making of an offer Knowledge that the Misuse of Drugs Act 1971, s.28 ‘supply’ = large scale commercial
controlled drug unless D could MDA 1971 to supply a controlled drug to enterprise involved the (see below). supply to small scale social supply.
receive a min another. supply of or making of an
sentence of 7 offer to supply a
years for a controlled drug.
third drug
trafficking
offence under
s.110 =
indictable only
Possession with Either way s. 5(3) p. 264 Have controlled drugs in his With intent to supply to Misuse of Drugs Act 1971, s.5(4) It is the lawfulness of the intended
intent to supply unless D could MDA 1971 possession, whether lawfully or another MDA: the purpose of taking supply vs. the possession which
receive a min not possession of the controlled drug counts here. So, if a doctor has a
sentence of 7 is to prevent another from drug lawfully in his possession but
years for a committing in the future or intends to unlawfully supply to
third drug continuing to commit an offence in another, made out.
trafficking connection with the drug.
offence under
s.110 =
Misuse of Drugs Act 1971, s.28
indictable only
(see below).
Misuse of Drugs Act 1971, s.28 is a defence to the above three drug offences
A lack of knowledge by the D of some fact which is alleged by the prosecution: (2)
If the prosecution proves that it is the controlled drug, D can be acquitted if proves:
o a general lack of knowledge by the D about the drug in question: (3)(b)(i)
o a conditional belief held by D about the drug in question, i.e., would not have been committing an offence: (3)(b)(ii)
Public order offences
Offence Type Statute Definitive Guideline AR MR Defence Comment
Affray Either s. 3(1) p.206 Threatens unlawful Intent to use or threaten Self-defence What if person acts with another? The conduct of
way Public violence towards violence them taken together.
e.g., A fight between two or more
Order Act another and conduct is
people in a place where members 1986 such that would cause
Does the ‘another’ have to be present at the
of the general public are present a person of reasonable
with a level of violence such as scene? Yes.
firmness present at the
would put them in substantial fear
scene to fear for
(as opposed to passing concern)
for their safety (even though the personal safety. Can the threat be made by words alone? No, there
fighting is not directed towards must be some action.
them);
Indiscriminate throwing of objects
directed towards a group of
people in circumstances where
serious injury is or is likely to be
caused;
The wielding of a weapon of a
type or in a manner likely to cause
people substantial fear for their
safety;
Fear or provocation of Summary s. 4 Public Uses towards another With intent to cause that Self-defence Immediate vs. instantaneous so violence can result
violence Order Act threatening, abusive, or person to believe that within a relatively short period of time thereafter.
1986 insulting words of immediate unlawful
behaviour (i.e., violence will be used
distribution/ display of against him or another by
signs). any person OR to
provoke the immediate
use of unlawful violence
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