Criminal Flashcards
(164 cards)
1
Q
define actus reus
A
a forbidden act/situation: acts, omissions, state of affairs
2
Q
Hogg v MacPherson
horse drawn furniture van
A
no voluntary act = no actus reus
3
Q
R v White
poison
A
no causal link = no actus reus
sons actions were not the direct CAUSE of mothers death
4
Q
HMA v Kerr & others
general rule
A
no liability for omissions
5
Q
exceptions to HMA v Kerr & others general rule
A
creation of a dangerous situation; family relationship; or an obligation to act eg, a life guard or police officer
6
Q
define mens rea
A
the mental element: intent, recklessness, negligence
7
Q
Quinn v Lees
A
a joke is a motive, not sufficient mens rea
8
Q
Paton v HMA
A
recklessness can be defined as criminal indifference to the consequences of your actions
9
Q
Thabo Meli v R
A
actus reus and mens rea don’t need to occur at the exact same time, conduct may be treated as a continuous act
10
Q
Roberts v Hamilton
A
intent can be transferred so long as it is the same action
11
Q
name the causal crimes
A
fraud, assault, murder and culpable homicide
12
Q
Define fraud
A
when someone makes a false pretence for their own benefit and someone else’s detriment.
there must be a direct causal link between the false pretence and the other parties loss.
13
Q
HMA v Robertson and Donoghue
A
you take your victim as you find them (thin skull rule)
14
Q
McDonald v HMA
A
there must be a direct causal link between the cause of death and unlawful act- it does not have to be the only cause of death. the victim may make a contribution.
15
Q
Art and Part liability
A
when you are part of a group you may be charged as a group.
16
Q
HMA v Kerr & others
A+P
A
the man that observed the rape was not art and part liable as he was not a direct part of the group- he had no duty to act, innocent passer by
17
Q
HMA v Fraser & Rollins
A
each party is liable for the ultimate actus reus
18
Q
HMA v Gallacher (Hamilton circus case)
A
a spontaneous coming together can be treated as art and part liability
19
Q
Boyne v HMA
A
a step outside the common plan- art and part liability only applies to what has been agreed and what is reasonably foreseeable
n.b if you proceed to attack after someone pulls out a knife you didn’t know about you proceed to be A&PL
20
Q
Attempts- define
A
where the accused has went from the preparation of the crime to the actual perpetration…
beyond recall; last act; a question of degree
21
Q
HMA v Camerons
A
preparation went to perpetration when they lied to the insurance company
22
Q
Docherty v Brown
A
impossible attempts; attempting to supply ecstasy when it wasn’t actually ecstasy
23
Q
Conspiracy- define
A
an agreement between two or more persons to commit a crime or crimes, intending to carry out that crime
n.b all that is needed for conspiracy is an agreement, it is a crime in itself
24
Q
conspiracy actus reus
A
agreement between 2+ to carry out a crime
25
conspiracy mens rea
intending to carry out a crime
26
west v HMA
loitering suspiciously with weapons is sufficient enough to determine conspiracy
27
Incitement- define
invitation to conspire or to commit a crime, with the intention that the other will carry out that crime
28
Baxter v HMA
it is enough for your invitation is serious to constitute incitement
29
Murder- define
causing the death of another human being (actus reus), having (wickedly) intended to kill through wicked recklessness (mens rea)
30
Wicked recklessness- define
criminal disregard as to whether or not your victim lives or dies
31
Drury v HMA
wicked intent is also needed in order for something to be classified as murder- need for wicked recklessness or wicked intent
32
HMA v Purcell
wicked recklessness- can only be wickedly reckless if there is intent to harm
33
Petto v HMA
setting fire to the ground floor flat of a building is wicked recklessness, things that are obvious must be considered
34
INVOLUNTARY culpable homicide
causing the death of another human being (actus reus) with a mens rea short of murder, but is nonetheless regarded as criminal
35
unlawful act- involuntary culpable homicide HMA v Robertson and Donoghue
take your victim as you find him/her, assaulting an old man = unlawful + resulting death= involuntary culpable homicide
36
lawful act- involuntary culpable homicide
| Tomney v HMA
gross negligence with a licensed gun n.b an exception to delict because of level of negligence
37
voluntary culpable homicide
causing the death of another human being, having intended to kill but having been PROVOKED or suffering from DIMINISHED RESPONSIBILITY
"murder with an excuse"
38
Drury v HMA
sexual infidelity is sufficient enough to constitute provocation which may reduce murder to voluntary culpable homicide
it has to be the IMMEDIATE response though
39
Road traffic homicide
causing death by dangerous driving
causing death by driving without due care or paying attention
causing death by driving unlicensed, disqualified or uninsured
40
Corporate liability and corporate homicide
the most serious delict a company can commit
41
Transco PLC v HMA
charge of culpable homicide against a company- can a company be charged with homicide or CH? led to the Corporate Manslaughter and the Corporate homicide act 2007
42
Corporate manslaughter and corporate homicide act 2007
s1- an organisation is guilty of an offence if the way in which its activities are managed or organised
a)causes a persons death b)leads to a gross breach of relevant duty of care owed by organisation to the deceased
s4- guilty where a duty of care is in gross breach, and falls far below what can be reasonably expected of the organisation in the circumstances
43
Assault
an attack on the person of another done with intent to cause personal injury, or intending to place another in fear or alarm for his/her safety
44
Roberts v Hamilton (assault)
transferred intent, snooker cue
45
John Roy 1839 Bell's notes 88
there was no evil intent of injury- no assault
46
Smart v HMA
a fistfight was agreed upon, opponent was severely injured- consent is not a defence in assault
47
R v Brown
cannot consent to such a high level of injury consent is not a defence
48
Stewart v Nisbett
error as to consent- police officer with tape for a "laugh"
49
Aggravated assault
| the mens rea for aggravated assault is relative to the objective of the assault
```
with intent to rape
to danger of life
to severe injury
permanent disfigurement
permanent impairment of sight
with a weapon
Hamesucken- assaulting someone in their own home... must go to the house with intent to assault the party
```
50
Reckless endangerment, reckless causing injuries, culpable and reckless conduct and endangerment
HMA v Harris; assault requires intent, but causing real injury by reckless conduct is STILL a crime.
51
Sexual Offences Scotland Act 2009 S1
S1(1) If a person (“A”), with A’s penis—
(a) without another person (“B”) consenting, and
(b) without any reasonable belief that B consents,
penetrates to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B then A commits an offence, to be known as the offence of rape.
52
SO(S)A 2009 s1.2 & 3
(2) For the purposes of this section, penetration is a continuing act from entry until withdrawal of the penis; but this subsection is subject to subsection (3).
(3) In a case where penetration is initially consented to but at some point of time the consent is withdrawn, subsection (2) is to be construed as if the reference in it to a continuing act from entry were a reference to a continuing act from that point of time.
53
SO(S)A 2009 s1.4
(4) In this Act— “penis” includes a surgically constructed penis if it forms part of A, having been created in the course of surgical treatment, and “vagina” includes—
(a) the vulva, and
(b) a surgically constructed vagina (together with any surgically constructed vulva), if it forms part of B, having been created in the course of such treatment.
54
SO(S)A 2009 s2, 2.3-2.4
If a person (“A”), with any part of A’s body or anything else—
(a) without another person (“B”) consenting, and
(b) without any reasonable belief that B consents, penetrates sexually to any extent, either intending to do so or reckless as to whether there is penetration, the vagina or anus of B then A commits an offence, to be known as the offence of sexual assault by penetration.
(2) For the purposes of this section, penetration is a continuing act from entry to withdrawal of whatever is intruded; but this subsection is subject to subsection (3).
(3) In a case where penetration is initially consented to but at some point of time the consent is withdrawn, subsection (2) is to be construed as if the reference in it to a continuing act from entry were a reference to a continuing act from that point of time.
(4) Without prejudice to the generality of subsection (1), the reference in that subsection to penetration with any part of A’s body is to be construed as including a reference to penetration with A’s penis.
55
SO(S)A s3
nIf a person (“A”)-
(a) without another person (“B”) consenting, and
(b) without any reasonable belief that B consents, does any of the things mentioned in subsection (2), then A commits an offence, to be known as the offence of sexual assault.
(2) Those things are, that A-
(a) penetrates sexually, by any means and to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B
(b) intentionally or recklessly touches B sexually,
(c) engages in any other form of sexual activity in which A, intentionally or recklessly, has physical contact (whether bodily contact or contact by means of an implement and whether or not through clothing) with B,
(d) intentionally or recklessly ejaculates semen onto B,
(e) intentionally or recklessly emits urine or saliva onto B sexually….
(3) For the purposes of paragraph (a) of subsection (2), penetration is a continuing act from entry until withdrawal of whatever is intruded; but this subsection is subject to subsection (4).
(4) In a case where penetration is initially consented to but at some point of time the consent is withdrawn,
subsection (3) is to be construed as if the reference in it to a continuing act from entry were a reference to a continuing act from that point of time.
(5) Without prejudice to the generality of paragraph (a) of subsection (2), the reference in that subsection to penetration by any means is to be construed as including a reference to penetration with A’s penis.
56
SO(S)A 2009 s12
consent means "free agreement" and relative expressions shall be constructed accordingly
57
SO(S)A 2009 s13
For the purposes of section 12, but without prejudice to the generality of that section, free agreement to conduct is absent in the circumstances set out in subsection (2).
(2) Those circumstances are—
(a) where the conduct occurs at a time when B is incapable because of the effect of alcohol or any other substance of consenting to it,
(b) where B agrees or submits to the conduct because of violence used against B or any other person, or because of threats of violence made against B or any other person,
(c) where B agrees or submits to the conduct because B is unlawfully detained by A,
(d) where B agrees or submits to the conduct because B is mistaken, as a result of deception by A, as to the nature or purpose of the conduct,
(e) where B agrees or submits to the conduct because A induces B to agree or submit to the conduct by impersonating a person known personally to B, or
(f) where the only expression or indication of agreement to the conduct is from a person other than B.
58
SO(S)A 2009 s14
1) this section applies in relation to sections 1-9
| 2) a person is incapable, whilst sleeping or unconscious of consenting to conduct
59
SO(S)A 2009 s15
15(1) This section applies in relation to sections 1 to 9.
(2) Consent to conduct does not of itself imply consent to any other conduct.
(3) Consent to conduct may be withdrawn at any time before, or in the case of continuing conduct, during, the conduct.
(4) If the conduct takes place, or continues to take place, after consent has been withdrawn, it takes place, or continues to take place, without consent.
60
SO(S)A 2009 s16
In determining, for the purposes of Part 1, whether a person’s belief as to consent or knowledge was reasonable, regard is to be had to whether the person took any steps to ascertain whether there was consent or, as the case may be, knowledge; and if so, to what those steps were.
61
incest
```
Criminal Law (Consolidation) (Scotland) Act 1995, s 1:
Any male person who has sexual intercourse with a person related to him in a degree specified in column 1 of the Table….or any female person who has sexual intercourse with a person related to her in a degree specified in column 2 of the Table…. shall be guilty of incest …
unless the accused proves that he or she—
```
(a) did not know and had no reason to suspect that the person with whom he or she had sexual intercourse was related in a degree so specified; or
(b) did not consent to have sexual intercourse, or to have sexual intercourse with that person; or
(c) was married to that person, at the time when the sexual intercourse took place, by a marriage entered into outside Scotland and recognised as valid by Scots law.
62
Theft
appropriation of property belonging to another without consent (Actus reus) and with intent to deprive that person of their property (mens rea)
63
Black v Charmichael
deprivation of any right of ownership is enough to constitute theft- even temporary appropriation
64
Aggravated forms of theft
theft by opening a lockfast place
theft by housebreaking
housebreaking with intent to steal
65
Reset
being privy to the retention of goods which have been dishonestly obtained by another (actus reus) knowing that the goods had been stolen or being wilfully blind (mens rea)
66
Embezzelment
misappropriation of goods which the accused had been entrusted (actus reus) intending to deprive the owner of their goods(mens rea)
67
Fraud
the obtaining of a practical result by means of false pretence (actus reus) intending to achieve that result
68
Adcock v Archibald
even a small practical result would suffice
69
Robbery
theft (as previously defined) accomplished by violence or threats of violence
n.b assaulting someone after theft is not robbery, it has to be the means by which you acquire the property
70
Extortion
the obtaining of property or some other advantage by means of illegitimate threats or demands (actus reus) intending to deprive the owner of the property, or to gain the advantage (mens rea)
C.f robbery= immediate threat vs extortion= threat postponed
71
Black v Charmichael
demanding payment-
to remove a clamp from car by a private company is extortion because owner of car was placed under a "threat" to make the payment
72
Malicious Mischief // Malicious damage
the wilful or reckless causing of damage to property belonging to another (property can be physical or patrimonial loss)
73
Vandalism- Criminal law (consolidation) (Scotland) act 1995
| s52
1) subject to s(2) below, any person who, without reasonable excuse, WILLFULLY or RECKLESSLY destroys or damages any property belonging to another shall be guilty of the offence of vandalism
2) it shall not be competent to charge acts which constitute the offence of wilful-fire raising as vandalism under this section
74
Fire-raising
INTENTIONALLY (mens rea) setting on fire property belonging to another (actus reus)
(most serious form of criminal damage)
75
culpable and reckless fire-raising
Recklessly setting on fire property belonging to another
76
Byrne v HMA
redefined wilful fire raising- it is only wilful fire raising in relation to the property being set on fire, so fire-raising is only wilful if done deliberately
77
False accusations // wasting police time
a false story told consciously to waste the time of the police
(doesn't always have to be false accusations, police time may be wasted in other ways)
78
Breach of the peace
behaviour which is severe enough to cause alarm to ordinary people and threaten serious disturbance to the community (actus reus) where the accused does the act (which causes, or has the potential to cause disturbance) intentionally (mens rea)
79
Smith v Donnelly
provides the definition of breach of the peace
it is not enough to cause a mere disturbance it must be SERIOUS and SEVERE enough, no need to intend to breach the peace you must just intend to do the act.
80
Jones v Carneigie; tallents v Gallacher
5 bench decision, the interactions of articles 10 and 11 ECHR. All parties engaged in civil disobedience, they are protected by arts 10 and 11 but these may be limited by law in order to prevent disorder ss(2) of each of these acts rights can be subject to restrictions where necessary in a democratic society
81
Harris v HMA
the conduct must effect the public peace, cannot simply upset one individual
82
behaving in a threatening or abusive manner
Criminal justice and licensing (Scotland) Act 2010 s38
behaving in a threatening or abusive manner which is likely to cause the reasonable person fear or alarm, the accused must intend to cause fear or alarm or be reckless to this.
This behaviour need not involve public behaviour or public stress.
83
Stalking
Criminal justice and licensing (Scotland) act 2010 s39
actus reus: harassing a person in any reasonable way that should or would cause fear or alarm, following, monitoring, watching, interfering
mens rea: intending to cause complainer to suffer fear or alarm, or knowing or having ought to know it would
84
Offensive behaviour at football matches
offensive behaviour at football and threatening communications (S) Act 2012 s.1
85
adversarial system
The adversary procedure requires the opposing sides to bring out pertinent information and to present and cross-examine witnesses.
86
Inquisitorial system.
An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial system where the role of the court is primarily that of an impartial referee between the prosecution and the defence.
87
Facta probanda
facts to be proved- these are facts which need to be proved... essential evidence is required to prove the accused committed the crime they have been charged with
to get probanda look at actus reus
88
facta probationis
known as facts of the proof, evidential facts which assist in proving facta probanda
89
circumstantial evidence
not really a term of art, but refers to the same thing as facta probationis
90
Gubinas and Radavicius v HMA
best evidence principle: "even if all of the witnesses say that the deceased was stabbed in the conservatory, if CCTV images show that he was shot in the library, then so be it"
91
Moorov v HMA
establishes the "moorov doctrine", if there is an underlying unity of purpose; similar in time; character and circumstance- this provides natural corroboration
two or more of the same charge may act as natural corroboration
92
Moorov doctrine
2+ of the same charge can be natural corroboration so long as they are similar in
time- not as important as it used to be
character- must be broadly similar in way they are committed
circumstance- must all be committed in the same place/situation
93
Corroboration
need for two independent pieces of evidence
| n.b (moorov doctrine exists because some crimes only happen in private so it waters down corob.)
94
Self-corroborating confessions
things that only the criminal would know, things the police didn't know but the murderer did
95
sexual offences and corroboration
if after the incident the victim was distressed after the incident a 3rd party may testify about distress
96
two burdens of proof?
persuasive and evidential
97
persuasive burden of proof
the heaviest burden to persuade court of the case and prove accused committed the crime
98
evidential/provisional burden of proof
must be able to show that it is worthwhile to bring the case to court
99
incidence- who carries the burden of proof in criminal cases?
the crown.
100
ECHR art 6(2)
everyone charged with a criminal offence shall be presumed innocent until proven guilty according to the law.
crown must bring credible, admissible and reliable evidence to the trial under their persuasive burden due to this presumption.
bad character has no effect on someones presumption of innocence. this is codified by the ECHR
101
Proof beyond a reasonable doubt
nothing short of a high probability will be sufficiently beyond a reasonable doubt has to be over 50%
102
Standards of proof
"beyond a reasonable doubt" and "on the balance of probabilities"
103
Criminal Procedure (Scotland) Act 1995, s 51A:
“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. .... and it is for that person to establish it on the balance of probabilities.”
n.b defence need to prove mental disorder beyond the balance of probabilities (lower than RD)
104
Competency and Compellability
all witnesses are competent, (unless proved otherwise) and compellable, unless in excluded category
105
where witnesses may not be competent
children, disabled people- competent unless they cannot understand the case or communicate
judges, lawyers, jurors- not competent where case is being litigated but competent in other respects
arbiters, mediators,
accused- competent witness for the defence, not competent or compellable witness for the crown (even though they are cross examined)
spouses and civil partners
106
competent
able to give evidence
107
compellability
can they be forced to testify
108
improperly obtained evidence
unlawful, illegal or irregularly obtained
109
Lawrie v Muir
evidence, even when in good faith, was improperly obtained, so should be excluded
union didn't have a warrant to search particular premises= illegally obtained evidence
110
Cadder v HMA
right to a lawyer
in case; they did not give someone a lawyer before or during or after the police interview- lawyers may be refused however there is still a need to offer
111
Article 6 ECHR
right to a fair trial is read as a right to a fair criminal process under the criminal law.
112
HMA v Chalmers
a voluntary statement is one which is given freely, not in response to pressure and inducement and not elicited by cross-examination.
a confession needs to be voluntary- dangerous to continue to question someone when suspicion crystalizes
113
Cadder v HMA
you have to be informed of your right to a lawyer
114
character evidence
generally not admissible since it is deemed to be "collateral" i.e. irrelevant like previous convictions
115
S10(1) Criminal justice act 2005
previous convictions against the accused shall not (subject to some exceptions) be laid before the jury, before the verdict is returned (solemn proceedings)
116
S166(3) Criminal justice act 2005
any previous convictions shall not be (subject to exceptions) be laid before the judge until he is satisfied that the charge is proved. (summary procedure)
117
exceptions to revealing previous convictions
charges that reveal previous convictions eg. "driving while disqualified" or "escaping prison" these make clear that the person being charged clearly has prior convictions.
118
Exceptions to bad character rule
often occurs in rape cases or sexual assault cases; where an attempt is made to diminish the character of the victim e.g innuendos about promiscuity which may humiliate the victim. There are relevant "rape shield laws" to protect from this. permission must be applied for in the court and the question must be relevant and of importance.
if the accused attacks the sexual history of the victim then they must have their previous convictions disclosed.
119
Hearsay
an assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted
assertion of what someone else said is second hand evidence which is weak
120
hearsay exceptions
identification parades: sometimes witnesses will say "it could be him" or not be 100% sure he is the perpetrator. police evidence may be used to bridge the gap but if police testify this it is also hearsay.
Documentary evidence: using another persons methods for e.g. analysing blood spats (forensic hearsay is always fine)
Res gestae: something that is said which is so closely linked to the actual incident it is allowed "M said J killed B* is acceptable to satisfy M has a consistent story but isn't satisfying in itself
121
Criminal procedure (Scotland) act 1995 s259
exceptions apply where the person who gave the original statement:
1. is dead or physically unfit
2. is outwith the UK and is not reasonably practicable to secure his or her attendance at the trial or otherwise obtain their evidence
3. cannot be found and all reasonable steps have been taken to find him
4. by leave of the court (asked by court but incapable), refuses to give evidence
5. refuses to give evidence having been directed by the judge to do so
122
Davie v Edinburgh magistrates
experts role is to provide information on matters outwith normal experience
an experts role is to aide in decision, must be neutral and objective.
123
Privilege
privilege against self incrimination.
legal professional privilege conversations between lawyer and client are privileged, a lawyer cannot be called upon in court. this privilege doesn't extend to doctors
cannot mislead court but you may be allowed to test the crown case.
124
Public interest immunity
a public body states something is better off not revealed even if it helps someone else's case e.g. child protection
when there is evidence, usually governmental and documentary, that you wish to use but they claim public interest immunity it is a matter of public policy.
125
What information cannot be revealed to the public domain?
national security- e.g submarines
concealment of informants- child protection
public interest- hospital/social work records
this is not an exhaustive list.
126
Vulnerable witnesses
witnesses that are said to be more fragile who are entitled to be treated with fairness and privacy
127
s271 Criminal procedure (Scotland) Act 1995
everyone under 18, mental disorders, sexual offences, stalking, domestic abuse + human trafficking- anyone where there is a significant risk of harm are all deemed to be vulnerable witnesses.
128
Strict liability
crimes where there is no/or there is a difficult to prove mens rea e.g. speeding, selling dangerous electronics. this only applies to statutory offences
129
Sweet v Parsley (English case)
| 1st element of strict liability
there is a presumption AGAINST strict liability- there is no intention to make criminals of persons who are in no way blame worthy.
it is highlighted as important to consider the wording of legislation and the nature/type of offence
130
2nd element of strict liability
ALL REASONABLE PRECAUTIONS MUST BE TAKEN
"...a mistake, or reliance on information supplied to him or the act or default of another person, or an accident, or was due to some other cause beyond its control, and ...took all reasonable precautions and exercise all due diligence to avoid the commission of the offence."
131
Vicarious liability
where an employer is liable for the performance of his employee. a trader is responsible for what his employees do because it is HIS TRADE.
can only be accused when the party was acting within the scope of their employment. if they go off on a frolic on their own it is wholly unrelated.
can only be V.l for statutory offences not common law crimes
132
Alibi
defence- you must prove you were elsewhere/ explain where you were
133
Impeachment/incrimination
"wasn't me it was ____" they have to be able to name who else was responsible
134
Non-age
Criminal procedure (S) A 1995 s41A
1) a child under the age of 12 years may not be prosecuted for an offence
2) a person aged 12 years or more may not be prosecuted for an offence which was committed at a time when the person was under the age of 12
135
Error in law- ignorantia iuris neminem excusat
ignorance to the law is no excuse- people are presumed to know the law, you have to know the law relative to whatever may affect you
136
Error in fact
must be generally by genuine and reasonable, and affect the accused mens rea
unreasonable error is now gone from scots law.
137
Hamilton Circus case- error?
error as to the victim is not a defence
138
Stewart v Nisbett- error?
an error to consent is not a defence
139
Owens v HMA
error must be genuine and reasonable
attacked someone because he thought he had a knife, fear for his life
140
unfitness for trial
criminal procedure (Scotland) act 1995 s35F
1) a person is unfit for trial if it is established on the balance of probabilities that the person is incapable by any way of mental or physical condition, of participating effectively in a trial
2) in determining whether a person is unfit for trial the court is to have regard to
a) the ability of the person to
i) understand the nature of the charge
ii) understand the requirement to tender a plea to the charge and the effect of such a plea
iii) understand the purpose of and follow the course of the trial
iv) understand the evidence that may be given against the person
v) instruct and otherwise communicate with the persons legal representative
b) any other factor in which the court deems relevant
3) the court is not to find that a person is unfit for trial by reason only of the person being unable to recall whether the event which forms the basis of the charge occurred in the manner described in the charge
141
Criminal responsibility of those with a mental disorder
Criminal procedure (s) A 1995 Section 51A
(1) 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.
(2) But a 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.
(3) The defence set out in subsection (1) is a special defence.
(4) The special defence may be stated only by the person charged with the offence and it is for that person to establish it on the balance of probabilities.
(5) In this section, “conduct” includes acts and omissions.
142
Special defence
if someone plans on using a special defence they must apply 10 days prior to the court and establish it on the balance of probabilities
143
Diminished responsibility
s51B Criminal procedure (S) A 1995
(1) A person who would otherwise be convicted of murder is instead to be convicted of culpable homicide on grounds of diminished responsibility if the person’s ability to determine or control conduct for which the person would otherwise be convicted of murder was, at the time of the conduct, substantially impaired by reason of abnormality of mind.
(2) For the avoidance of doubt, the reference in subsection (1) to abnormality of mind includes mental disorder.
(3) The fact that a person was under the influence of alcohol, drugs or any other substance at the time of the conduct in question does not of itself—
(a) constitute abnormality of mind for the purposes of subsection (1), or
(b) prevent such abnormality from being established for those purposes
4) It is for the person charged with murder to establish, on the balance of probabilities, that the condition set out in subsection (1) is satisfied.
(5) In this section, “conduct” includes acts and omissions
144
Voluntary intoxication- brennan v HMA
no defence for voluntary intoxication (pink Floyd case)
145
criminal justice and licensing (s) A 2010 s26
(1) Subsection (2) applies in relation to an offender who was, at the time of the offence, under the influence of alcohol as a result of having voluntarily consumed alcohol.
(2) A court, in sentencing the offender in respect of the offence, must not take that fact into account by way of mitigation.
146
Automatism
involuntary intoxication rendering a semi-conscious state (sleepwalking, medication etc)
147
Ross v HMA
larger spiked with lsd made the court change common law so you can have the defence of automatism
148
Ross v HMA test for automatism
1. must prove semi-conscious state
2. must be relevant external factor (it cannot arise from an existing medical condition)
3. has to not be reasonably foreseeable or voluntarily induced
it has to be unlikely to reoccur
149
Coercion (duress in England)
must show that you only broke the law because of threat of imminent death or serious injury
150
Thomson v HMA (Hume's 4 criteria)
| coercion
1. There must be an immediate danger of death or great bodily harm.
2. There must be inability to resist violence.
3. The accused must play a backward and an inferior part in the perpetration of the crime and
4. The accused must make disclosure of the facts and restitution of the spoils on the first safe and convenient occasion.
n.b that #1&2 are mandatory
atrocious crimes cannot be defended by coercion e.g. murder or attempted murder
151
Necessity
similar to coercion, an absolute defence and entirely circumstantial- it had to be the lesser of two evils
breaking the law has to be justified
152
R v Dudley and Stephens (English)
necessity is no defence to murder cannot be said okay to kill someone in order to save your own life
"clean hands" principle, the accused has to be an unwilling party
153
Moss v Howdle
there has to be serious danger of death or great bodily harm, with no other option- where there is a choice, necessity does not apply
154
HMA v Anderson
youths were attacking car so they drove to get away knocking down innocent bystander... necessity where it has worked in a murder case
155
is self defence a complete defence?
yes, it means you think your actions were justified, you can be acting in the defence of someone else.
156
HMA v Doherty
there must be no alternative and only reasonable force used, if there was an alternative to their actions then it is not self defence
157
Fenning v HMA
there cannot be a cruel excess of violence
158
Owens v HMA
errors must be genuine and reasonable
| you can only take a life if there was a threat on your life
159
provocation
there are only two instances where provocation is a partial defence to murder
i) sexual infidelity
ii) violence (loss of self control)
160
Thomson v HMA
provocation only stands if thing is done immediately- a few days prior is too remote
abusive words or actions are not enough to warrant the taking of another persons life
161
Drury v HMA (provocation)
Sexual infidelity is applicable to the defence of provocation but it must also be an immediate reaction which may be reduced to culpable homicide
162
Gillon v HMA
the rule of law in provocation is that proportionate responses are necessary- violence must meet equal violence not more
163
Donnelly v HMA
you can, only in certain circumstances, react/be provoked by attacks on a 3rd party
164
Provocation v Self defence
Prov. is entirely different from SD as SD is deliberate and also justified. whereas prov. is more of a concession to human frailty, and is an excuse for uncontrollable behaviour, because reason does not exist where someone has lost all self control.
