Defences Flashcards
What is meant by strict liability?
This is where the the mens rea does not have to be shown, it is satisfactory to prove only the actus reus (speeding, parking on double yellow lines)
The case of Sweet v Parlsey determined what?
That there is a presumption against strict liability.
What is vicarious liability?
This is where a person is convicted for an offence which has been committed by someone else.
Usually used to impose liability on an employer for acts/omissions of an employee
What is the defence of alibi?
Techinical term means “elsewhere”
Alibi is a special defence and must be disclosed to the Court 10 days prior of trial
What is the defence of impeachment/incrimination?
This is where the accused actively blames another person for the crime
This is a special defence and requires 10 days notice to the court prior to trial
What is the defence of Non-Age?
The Criminal Procedure (Scotland) Act 1995 s41A
(1) A child under the age of 12 may not be prosecuted for an offence
(2) A person over the age of 12 may not be prosecuted for an offence which they committed when under the age of 12
What is meant by ignorantia iuris neminem excusat?
Ignorance to the law is no excuse
What is error of the facts?
This is where an accused’s mens rea is affected, if an error is both genuine and reasonable combined with an affected mens rea then it acts as a defence as was the case in Owens v HMA.
In HMA v Gallacher 1951 there was an Error to the Victim, does that constitute a defence?
No, the mens rea was not affected and thus no defence.
If a person consent’s to conduct which would usually constitute a crime is that a defence?
No, error of consent as a defence is not a defence to an offence as the case of Smart v HMA established where Smart claimed the victim wanted a “square go” as well as in the case of Stewart v Nisbet in which the accused wrapped sellotape round a woman’s mouth because she consented. Both were guilty of assault.
Under the Criminal Procedure (Scotland) Act 1995 (as amended by the Criminal Justice and Licensing (Scotland) Act 2010 which three “mental abnormalities” constitute a defence?
(1) Unfitness for trial
(2) Defence of mental disorder
(3) Diminished responsibility
When is a person determined as unfit for trial?
s53F(1) of the Criminal Procedure (Scotland) Act 1995 (as amended by the Criminal Justice and Licensing (Scotland) 2010 states a person is unfit for trial if it is established on the balance of probabilities that they are incapable by reason of mental or physical condition of participating
How is a person determined unfit for trial?
s53F(2) of Criminal Procedure (Scotland) Act 1995 (as amended by the Criminal Justice and Licensing (Scotland) 2010 has regard to;
(a) the ability of the person to
(i) understand nature of the charge
(ii) understand requirement to tender a plea
to the charge and the effect of such plea
(iii) understand the purpose of, and follow the
the course of the trial
(iv) understand evidence that may be given
against them
(v) instruct and otherwise communicate with the
persons legal representative.
(b) Any other factor which the court considers relevant
When will the Court NOT find a person unfit for trial?
s53F(3) of the Criminal Procedure (Scotland) Act 1995 (as amended by the Criminal Justice and Licensing (Scotland) 2010 states that the Court will not find a person unfit for trial on the basis that the accused person cannot recall whether the event which forms the basis of the charge occurred in the manner described in the charge.
When will a person not be criminally responsible by reason of mental disorder?
s51A(1) of the Criminal Procedure (Scotland) Act 1995 (as amended by the Criminal Justice and Licensing (Scotland) 2010 states a person is not criminally liable for an offence, and is to be acquitted, where at the time of conduct the person was unable to understand the nature or wrongfulness of the conduct.
