Criminal Law Flashcards

What is the difference between assault and battery in criminal law?

Answer: Assault is causing the victim to apprehend immediate unlawful force; battery is the actual application of unlawful force

Assault (technically 'assault' or 'psychic assault') involves causing the victim to apprehend the immediate application of unlawful force — no physical contact is required. Battery involves the actual application of unlawful force to another person, however slight. Both are charged under s.39 of the Criminal Justice Act 1988 as summary offences and are commonly referred to collectively as 'common assault'.

Under the Offences Against the Person Act 1861, which section covers wounding or causing grievous bodily harm with intent?

Answer: Section 18

Section 18 of the OAPA 1861 covers the most serious non-fatal offence: wounding or causing GBH with intent. It requires proof of specific intent to cause GBH or to resist arrest. It carries a maximum sentence of life imprisonment. Section 20 covers the lesser offence of malicious wounding or inflicting GBH, requiring only recklessness (Cunningham recklessness) as to some harm.

What is meant by 'strict liability' in criminal law?

Answer: Liability where the prosecution need not prove mens rea for at least one element of the actus reus

Strict liability offences are those where the prosecution does not need to prove mens rea (fault) for at least one element of the actus reus. The defendant can be convicted simply for performing the prohibited act, regardless of their state of mind. These are typically regulatory offences (e.g., selling alcohol to a minor, speeding). The leading case on identifying strict liability is Gammon (Hong Kong) Ltd v Attorney General [1985].

Which case established the subjective test for recklessness in criminal law, replacing the objective Caldwell test?

Answer: R v G and Another [2003]

R v G and Another [2003] overruled the objective Caldwell test for recklessness and restored the subjective Cunningham test. The House of Lords held that a person is reckless if they are aware of a risk and unreasonably take that risk. This was significant because the Caldwell test had allowed conviction where the defendant had not personally foreseen the risk but an ordinary reasonable person would have.

What must be proved for a defendant to be convicted of robbery under s.8 of the Theft Act 1968?

Answer: Theft accompanied by the use or threat of force immediately before or at the time of stealing

Section 8 of the Theft Act 1968 provides that a person is guilty of robbery if they steal and, immediately before or at the time of doing so, and in order to do so, use force on any person or put or seek to put any person in fear of being then and there subjected to force. All elements of theft must be proved, plus the use or threat of force. The force need not be substantial (R v Dawson [1976]).

What is the legal effect of the defence of duress in criminal law?

Answer: It is a complete defence leading to acquittal, but is not available for murder

Duress (by threats or circumstances) is a complete defence that leads to acquittal if established. However, following R v Howe [1987], duress is NOT available as a defence to murder (whether as a principal or secondary party) or attempted murder (R v Gotts [1992]). The defendant must show they acted because of a threat of death or serious injury, the threat was directed at them or their close family, and a reasonable person of similar characteristics would have responded in the same way.