criminal

Question 1

Fraud

Answer 1

inducing person by false pretences to do soemthing they woudl not otherwise have done

1. Use of false pretences as to something MATERIAL
2. To bring a practical result (not necessarily just loss)

Question 2

Tapsell v prentice

Answer 2

Sold rug fro higher price, although this was deemed not MATERIAL in the shopowners decsion to buy the goods.

Question 3

Strathern v Fogul

Answer 3

Saying sons were going to move in once she had left was not material and was irreleevtnt and just part of bargaining.

Question 4

Richards v HMA

Answer 4

Made false representation to council over who would live int he house- this was deemed as material and significant in the councils decision

Question 5

To bring about a practical result (fraud)

McKenzie v HMA

Answer 5

Despite their actions not amounting to anything other than the raising of legal action, this action was enough of a PRACTICAL RSULT

Question 6

Adcock v Archibald

Answer 6

Worked at coal mine adn had claimed another workers coal was his own. Although he had made no actual gain, the fact that there had been some fault in the administartion process as a result.

Question 7

Mens rea for Fraud

Answer 7

1. Knowledge of falsity of representation

2. intention to bring about practical result

Question 8

Mackenzie v Skeen

Answer 8

worked in abatoire and responsible fro weighing offle but had done it wrong so company lost out on profit. Charged yet on appeal found there was no fraudulent intent.

• no proof of knowledge as to false pretence
• no proof of intetion as to practical result.

Question 9

RESET

Answer 9

possessing or beign privy to the retention of stolen goods (derived from theft, robbery or embezzlement)
Is mutually exclusive with theft i.e. cannot be charge with both

Question 10

Actus reus of reset

Answer 10

actual possession

privy to retention (coniving at)

Question 11

HMA v Browne

Answer 11

even if property doesn;t come into your physical contact you can still be guilty of reset.

Question 12

Latta

Answer 12

re will full blindess- charged with possession of stole goods

Question 13

Smith v Watson

Answer 13

3 men in car. One had stolen the metal goods. ALthough the physical handover to the other two men had not yet actually occured their conviction of reset by being privy to the retention of stolen goods was enough.

Question 14

Malicious Mischeif (common Law)

Answer 14

Actus- destroying or damaging corperal property belonging to another person (physical)
Mens- intention or recklessness as to damaging or destroying the eproperty

Question 15

Ward v Robertson

Answer 15

Had trampled on feild- they didn’t know they were causing damage- court held even if deosn’t require proof of intention it requires proof of recklessness (indifference as common law)- the conviction quashed

Question 16

Wilson

Answer 16

established new catorgory extending physical damage to causing patrimonial (economic loss). Alledegd to have gone into power station and pressed emergency stop button shutting down one or turbines- no electricty for 28 hours causing an economic loss of 150,000. Charged with MM. NO physical damage. said interference casuing them to lose profit this could be a form of MM. No legal principle for this and extending the defence casues it to overlap with othree offences i,e. black v carmichael- what about other things re patrimonial loss- only need to interfere.

Question 17

Vanadalism (section 52 Criminal law consolidation) act 1995. created originally by s.78 criminal justice (s) act 1980

Answer 17

committed by a person who without reaonable excuse wilfully or recklessly destroys or damage the proeprty belonging to another.

Question 18

Black v Allan

Answer 18

there are two seperate offence differences;
recklessness- generally cameron v maguire( indifference) with vandalism can apply the statuory defintion (standard falling beloow what would be expectated of standered person in situation)
The avaliability of a ‘reasonable excuse’ defence
Application to patrimonial loss- can’t fall within vandalism

Question 19

Byrne v HMA

Answer 19

distinguished culpable and reckless firewarsing and willful fire raising.
Accused set fire to paper on floor of room, it spread to bed and to walls.. The intention to dmaage the other items was no there.
wilful require proof of intention- must shhow intetnion to set fire to the relevent property

Question 20

SElf defence

Answer 20

defend your self or another from unlawful aggression.

Question 21

Docherty

Answer 21

HAs to be imminent danger to life or limb of accused or third party
resonse has to be necessary- no reaonable oppurtunity to escape or retreat from the situation
response has to be proportionate to the threat

Question 22

Mc Brearty

Answer 22

accused convicted of murder. Both part of gangs in fights. Victim had chased the accused and had backed him into a corner. Then the accused swiped a knife, which killed him. Grounds for appeal should have said that there was lack of reaonable escape, he said there was none so he was justified. Courts didn;t feel given evidence that the conviction should be quashed. there was the possibility of a reasonabale escape

Question 23

McCluskey

Answer 23

not interpereted too strictly- it mustn;t be cruelly ecessive leaving room that it can be somewhat excessive.
Accused charged with murder having killed a person in so called self defence. He defended himself from attempted rape. Trial jduge said propertionality required and that killing somone would only be proportionate if it was for a threat of death. On appeal held judges directions were correct and accused shouldn;t be allowed a defence of self defence. Thsi is an out of date case.
‘this was not the same as a situation if a WOMAN would be defending themselves from rape’- distinguishing rape agiansta male and rape against a female

Question 24

Fenning

Answer 24

there was to be no cruel excess of violence. ground of appeal was that direction from judge was not sufficeint and that it should ahve been mentioned that self defence takes place int he heat of the moment. on appeal high court held this was not necessary, jurys didnlt have to be told about

Question 25

Moore v Macdougal

Answer 25

in fight with victim . accused trying to make peace, she was punched several times, she pulled out scissors and stabbed he victim,, then convicted of assault, she should have been entitled to self defence. The response on appeal still deemed cruellly excessive.

Question 26

Mistaken self defence

Answer 26

standerd of REASONABLE BELEIF. owen and leiser

Question 27

Thomson v HMA (coercion)

Answer 27

1. immediate daner of death ro great bodily harm 2. accuseds will must have been overborn and overcome by threats, inability to resist violence 3. Objective test- such threats would oversome the will/ resolution of an ordinarily connstiuted person of same sex and age of accused 4. defence excluded wehre they expoose themself to risk of coercion i.e. through gangs. This instead of agaisnt unlawful agresors but innocent parties

Question 28

Objective test in coercion- over come will of an ordinary person. same as with provocation

Answer 28

How objective? do we give the ordinary oerson the characteristic of an accused

Question 29

Cochrane

Answer 29

accused convicted of assualt and robbery, he sadi the co-accused had threatened to burn his house down, accused was on borderline of being mentally handicapped and easily lead. Sheriff said this was irrelevetn and this was upheld by the appeal court. Might maybe lead to a reduction in sentence.

Question 30

necessity

Answer 30

threat is from nature or circumstance rather than a party. develoved in moss v hardle re driving and speeding

Question 31

lord adv ref no 1 of 2000

Answer 31

criteria for necessity - the ttident case there was no imminent threat to them- there was perhaps re a breach of international law. - an immediate danger of death or bodily harm- judge by resonable beleif standard threat must have constrained the accused to act outside the law- donnelly - sexually assualted- she could have got the bus. -must have dominated the emind of the accused- Dawson v Dickson- re off duty fireman who had been out drinking- drove the fire e - objetive test- sober person of reaonable firmness sharing the characteristics of the actor would have responded as he did. - actor must have reason to think acts would have potential of removing danger

Question 32

Cardle v Mulrainey

Answer 32

Had drink spiked with amphetimines yet held that ahd not suffered a total alienation of reason. If he knows what he is doing and knows that what he is doing is wrong then he cannot fit under this crieteria

Question 33

An internal casue for this alienation may not stand as in Quick (english case)

Answer 33

He went into a state of hyperglycemic but this was his own fault and he should have controlled it.

Question 34

Kay v Buttorworth

Answer 34

If feel drowsy whicle driving should pull over, this was forseeable

Question 35

Lord Strachen in Kidd

Answer 35

What is required is some alienation of reason

Question 36

Brenan

Answer 36

court rejected alienation in regards to self induced intoxication Lord emeslie said that the question of automitism has nothing to do with insanity in the ordinary sense of the word nor is it a question for the medical opinion- this and the legal opinion are sperate. howvere the millan committee and the SLC in the 2004 report have disgareed with this stance- have reccomended thata the common law test for insanity as a defence be abolished

Question 37

Mcnaughton rules (still largly applied in Endland and formed the basis of scots law on insanity)

Answer 37

To establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing;

Question 38

In america

Answer 38

"A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law

Question 39

Savage re diminsished responsibility

Answer 39

there must be aberration or weakness of mind; that there must be some form of mental unsoundness; that there must be a state of mind which is bordering on, though not amounting to, insanity; that there must be a mind so affected that responsibility is diminished from full responsibility to partial responsibility in galbraith this criteria was held not to need to be read too narrowly and not all need to be met

Question 40

galbraith

Answer 40

removed the bodering on insanity requirement

Question 41

kirkwood v hma

Answer 41

difficult with the term 'dimished responsibility' The defence of impaired responsibility is somewhat inconsistent with the basic doctrine of our criminal law that a man, if sane, is responsible for his acts, and, if not sane, is not responsible."

Question 42

finegan

Answer 42

sleepwalking- own fault no automitism, should have forseen consequences much like buttorworth case fe falling asleep at wheel.

Question 43

s.51 criminal justice and lisensing act refomed law on mental disorders

Answer 43

A person is not criminally responsible for conduct constituting an offence, and is to be acquitted of the offence, if the person was at the time of the conduct unable by reason of mental disorder to appreciate the nature or wrongfulness of the conduct. cardle (accuseds reason not totally alianated) and kidd (by some menatl defect his reason was overturned and he was rendered unable to control his actions)

Question 44

S 51A(2) provides that:

Answer 44

] person does not lack criminal responsibility for such conduct if the mental disorder in question consists only of a personality disorder which is characterised solely or principally by abnormally aggressive or seriously irresponsible conduct.

Question 45

Incitement

Answer 45

it is an offence to incite another to commit a crimei i.e. encouraging

Question 46

Baxter v HMA

Answer 46

one resident of tenement would not move during renovations, thought they should kill him to get rid, approached employee to kill him, employee disagreed, tried to incite the employee, convicted

Question 47

Conspiracy

Answer 47

Conspiracy is constituted by the agreement of two or more persons to further or achieve a criminal purpose. A criminal purpose is one that if attempted or achieved by action on the part of an individual would itself constitute a crime. It was the criminality of the purpose and not the result that made the crime a criminal conspiracy. The agreement need not be by an express agreement. It is not a defence that the object would have been impossible to achieve.

Question 48

Maxwell

Answer 48

bribed liscensing trader, bribed him to do somethign impossible

Question 49

Coleman

Answer 49

Family feud in housing scheme, created olan to take weapons to the house, involved in crime as he picked up the weapon

Question 50

Howitt

Answer 50

frauds (acting with co-accused) was acitted but there could still be a charge of conspiracy

Question 51

Duffy

Answer 51

consipracy to set frie to a house, one charge with murder and fire reasing and other just with firwarsiing

Question 52

criminal procedure (S) act s.51B

Answer 52

convicted of CH rather than murer if can show was substantially impaired by an abnormality of the mind

Question 53

moss v hardle

Answer 53

The defence requires to be tested by asking whether the accused could have acted to avoid the peril without breaking the law. M had an alternative course of action open to him, namely to pull into the side of the road to ascertain the nature of his passenger's distress, which would not have involved committing the offence.

Question 54

r v howe

Answer 54

coercion is not a defence to murder

Question 55

Reckless endangerment

Answer 55

creation of a dangerous situation

Question 56

macphail v clark

Answer 56

set fire to hay. no mitigation- recckless endagerment

Question 57

mallin v clark

Answer 57

this was about omissionto disclose rather than active denial. if had denied then would have been liable

Question 58

mccue v currie

Answer 58

duty to remove danger once have created it- dropped lighter in caravan- charge with attempted theft not wilful fireraising as no mens rea

Question 59

R v miller

Answer 59

fell asleep with lit cigarette- didn;t mitgate issue, even though accidental failure to sort issue was a crime by ommission

Question 60

r v pittwood

Answer 60

failure to perfrom contractual duties- failed close gate- charged with manslaguhter

Question 61

but for test (factual cuasation)

Answer 61

sine qua non if for actions would it have occured

Question 62

r v white

Answer 62

poisoned mother- died heart failure, unrelated no liabilty didn;t satisfy test

Question 63

hendry v hma

Answer 63

although injuries on old man were minor, he was drunk ect still held o have casual connection

Question 64

woolin

Answer 64

liabily cause shook baby

Question 65

legal cause

Answer 65

casues to which legal reesponsibilty can be attributed to no single test but look at proximity and remoteness

Question 66

bird v hma

Answer 66

take victim as you find them thin skull, handbag convicted murder even thoguh unforseeable

Question 67

r v blaue

Answer 67

jehovas witness

Question 68

breaks in legal causation

Answer 68

novus actus intervenious

Question 69

intrevening acts | r v roberts

Answer 69

lift to gri, sexually assaulted, jumped from car- actions not 'daft'

Question 70

r v dear

Answer 70

man sexually abusing daighter, re opened stab wound, suicide note- no requirment for treatment

Question 71

macdonald v hma

Answer 71

revenge attck, jumped from flat to escape- actions deemed completly reasonable

Question 72

kaliq lord emeslie

Answer 72

wilful and reckless administration of a dangerous subsatnce to another causing injury or death is a crime at common law in scotland

Question 73

r v kennady

Answer 73

english position- voluntary act of taking drug alwasy breaks causation

Question 74

mcangus

Answer 74

charged with unlaful supply of ketamine- one died. contrast with KANE as he actually prepare dand injected drugs into victim who was a consenting adult of a sound mind. court held supply alone not criminal unless reckless. although not applicable in these case discussed following kennedy in some circumsatnces i.e.t hat actions may break chain

Question 75

r v pagett

Answer 75

used grilfriend as a human sheild from police shots- guilty fo manslaughter as police actions not voluntary but acting in self defence

Question 76

r v jordon

Answer 76

immediate cause of death after stabbing was the negligent medicla treatment- this broke chain. the stab wound was not the operative reason for death

Question 77

smith

Answer 77

stabbed with bayonette- contrary to jordon, stab wound the operative reason for death.

Question 78

Humes 'dole'

Answer 78

requires a general wicked disposition | mens rea requires a state of mind specifis to a certian crime

Question 79

actus non facit reum nisi mens sit rea

Answer 79

there can be no guilty action without a guilty mind

Question 80

treasferred mens rea | roberts v hamilton

Answer 80

mistakenly hit another with pole- transferred mens rea

Question 81

burn

Answer 81

didn;t aply doctrine re wilful fireraising

Question 82

palzzo v copeland

Answer 82

motive shouldnt be confused with intent- his motive only to scare the youths

Question 83

oblique intention

Answer 83

woolin- he did not mean to kill son but by shaking the result was ferseeable with virtual certainty petto- block of flats on fire. contrast with purcell where was no intetion to harm anyone. in petto the frie was started eliberatly with no appreciation of the VIRTUAL CERTIANTY of the risk

Question 84

statutory recklessness | allan v patterson

Answer 84

'falls below the standered expected of a reasonable person in that situation followed by gizzi v tuphopr- 'utter disregard of the consequences

Question 85

alison defintion of mns rea for murder

Answer 85

intneion to kill or utter disregard as to the life of the sufferer, wether he lives or dies.

Question 86

Mackintich

Answer 86

threw petrol bombs- convicted on basis that recklessness is enough for mens rea 0 stsatutory satdered

Question 87

black v allan

Answer 87

broken window- again reckless under statory defintion

Question 88

lord clark aitchison

Answer 88

to show gross or criminall negligence it is necessary to show something amounting to a crimianl indifference

Question 89

transeco

Answer 89

re gass explosion- held with a complete and utter disregard for the public. harder test than in allan as is of indifference and disregard

Question 90

quinn v cunnigham

Answer 90

recklessy riding bike and injuring someone. lord clyde reinstate paton - yet described it as ' utter disreagrd fro the consequences of the act or recklessnessa s to invoelve and indifference as to the consequences- an OBJECTIVE VIEW

Question 91

cameron v macguire

Answer 91

re reckless discharge of friearm again objective approach- no discussion as to wether sbjectivly aware of potential dangers but wether the risk of such that he ought to have realised it.

Question 92

hma v s

Answer 92

not if subjectivly forseeable but if a reapnable person would have

Question 93

latta

Answer 93

firearms- solictor- charged with possession of stolen goos- willfull blindeness

Question 94

carr v HMA

Answer 94

broke into church. conviction quashed as court should distinguish between recklessness and carelessness

Question 95

callow v tilstone

Answer 95

re selling unfit meat- strict laibilty- didn;t matter that he had taken reaonable care

Question 96

murder defintion macdonald

Answer 96

wilful act causing the destriction of life wetehr intending to kill or displaying such wicked recklessness as to imply a disposition depraved enough to be regardless of the consequences. this was approved in scott v hma- deemed a 'classic and well knwon' defintion

Question 97

drury

Answer 97

wicked intention mentioned- lrod rodger said this should be determined with regards to motive (similar to humes definition of dole as wicked and mischevious prupose) Could argue insufficient wickedness- courts had oppurtunity to discuss this in gillon

Question 98

leiser

Answer 98

fletcher-- to allow a defence of a mistaken beleif in self defence is to sanction a thoughtless, negligent over-reaction

Question 99

in england | r v williams

Answer 99

an unreaonable mistake in self defence is grounds for self defence

Question 100

halliday

Answer 100

following on from reid wher he stole a car and mowed someone down tryign to stop him. In this they kicked man shock hands, showered then ambuladnce

Question 101

purcell

Answer 101

hit child with car. deemed not murder- drew on case of nivan- fired cannon down the street killing woman- this can significantly narrowed the scope of murder convictions re wicked recklessness- elft ins ame situation as engladn- not good r v hancock- held only possible to convict (concrete block dropped on road) if could show intention to kill or casue grevious bodily harm- maybe we shoudl chang it to intent to assault fear as opposed to jsut grevious bodily harm)

Question 102

cawthorne

Answer 102

show at people through the door- held to have WR as intetn sufficient to caus egrevious bodily harm

Question 103

lord cameron in cawthorn told of 3 elements to murder

Answer 103

1. proof of death resulting from certain acts (casuastaion - dear-daughter, roberts -car- brid , blaue macdonald- flat, pagett 2. acts are willfull acts fo the accused i.e. are voluntary not automoitism 3. proof of neccessary criminal intent- established in scotland by deliberate intetion to cause death or nature of acts- did they display WR

Question 104

ALison on CH

Answer 104

murder which is committed during commission/ attamept to commit a crime ... no peril to life to life could have been foreseable.

Question 105

burns

Answer 105

in voluntary culbable homicide- hits him int he wrong was

Question 106

macdonald

Answer 106

the amount of recklessness for murder varies with circumsatnce - one blow for a fragile old man or a child may be sufficient- robertson and donoughue

Question 107

brenan

Answer 107

court rejected that voluntary intoxication accounted to a total alieaion of reason

Question 108

lawrie

Answer 108

broke into womans house- she died of herat attack-

Question 109

lord sutherland in HMA v hartley

Answer 109

if you act in such a way that you do not care wether the person live or dies

Question 110

in england lord sands fraser and rollins

Answer 110

if a person accepts a crime of serious violence althoug his object may not be murder, if it result sin death jury should convict of murder

Question 111

s.51 B criminal procedure- now inserted into 20120 crimianl procedure act s.168

Answer 111

reduced form murder to CH if control and conduct atthe time was subsatntially impaired by an abnormality of mind - for accused to prove on the balance of probabilities.

Question 112

HMA v Alexander Dingway

Answer 112

deemed to have weakness of mind resulting in CH , befroe just seen as way of mitigating punishment rther than reduction of a crime

Question 113

normand v robinson

Answer 113

endangerment of the leiges had a rave.

Question 114

kimmons

Answer 114

said he didn;t have syringe contrast to malin

Question 115

donnall

Answer 115

syringe

Question 116

first called DR

Answer 116

in MUIR

Question 117

savage

Answer 117

must be a menatl unsoundness STATE OF MIND BORDERING ON INSANITY so only pratially accounatble for actions

Question 118

Galbraith set out 4 criteria from savage- remove need for bodering on insanity

Answer 118

weakness of mind- brow even case where woman in weak mind from visiting a hospital - brown. clinton ]mental unsoundness- mclinton- man mentally unsettled by wifes cheating mind affected so responisbility diminshed

Question 119

harris

Answer 119

nightclub bouncer throws girl down satrs hit by car- charge with culbable and reckless injury- doenst matetr that was inherent iin his job that he would bein situations like.

Question 120

lord Justice clark in carahar- the object of criminal law is not to make a world safe fro criminals to live in

Answer 120

howver since 2010 covers physcopathy- slc said di seriouslly affect social and meatl control

Question 121

connally

Answer 121

physciatrist showed th perosnality disorder brought on by deprived childhoos- can give evidence but not opinion

Question 122

scotland for defence

Answer 122

determine and control conduct

Question 123

englsih defence

Answer 123

applies also to other incapacies such as loss of rational judgement onyl if the abnormailty explaines the conduct i.e. if it causes or is a sifnificantly contributory factor

Question 124

burns

Answer 124

fighting in oub

Question 125

mattison

Answer 125

set fire by boy

Question 126

sutherland

Answer 126

isaurance fraud- one died

Question 127

r v kennedy

Answer 127

the acts of the fully informed and resonsible adult will always break the chain of causation

Question 128

atkinson- same position as in gilmore re toy gun

Answer 128

breaking into service station counted as assault as made threatenign gestures sufficent to cause alarm

Question 129

constazna

Answer 129

in england no necessary for proximity- this was re phone call- no need to casue real injury

Question 130

HMAv Phipps

Answer 130

need for evil intent in assault- cannot be committed recklessly - yet fro reckless discgareg of firearsm the result does not need to be forseeable

Question 131

lord adv ref no 2

Answer 131

fake gun caused fear and alarm motive not to be ocnfused with intent (palazzon) actions were deliberate so consttuted asault . once established evil must prove intent

Question 132

judeg petit in r v brown when went to ECHR

Answer 132

the protection of private life means the portectin of intimacy and dignity not the promotion of criminal immoralism

Question 133

provocations for assault

Answer 133

must not be grossly disproportioanate

Question 134

thomson

Answer 134

verbal aggrevation not enough for assault- headlock was not enough fro murder

Question 135

shrff gordon in harris

Answer 135

assault is a criminal intent and cannot be committed recklessly or negligently

Question 136

section 12

Answer 136

defines cosent as free agreement- in englad- agrees by choice and had capacyt and freedom to make choice in scotland is a positive and coperative model

Question 137

befreo act consent had ordinary meanig

Answer 137

marr v hma

Question 138

r v bree

Answer 138

if have consumed acohol bus till able to give consnet- not rape

Question 139

threats other than violence- s v volxheck

Answer 139

black woman offered sex or criminal offecne - thrat negtaed her consent

Question 140

deception- flattery

Answer 140

told was neccesay for medical procedure

Question 141

s60(1)

Answer 141

if a reaonable person would in those circumstances consider the actions to be sexual