Criminal law (semester 1) - Lectures 1-21 Flashcards
(287 cards)
1
Q
What is the harm principle?
A
Society demands that some acts/omissions are crimes and expect these to be treated as criminal offences. A crime is a situation forbidden by the law under the threat of punishment. Harm can be done not only to people but objects, we need to consider the consequences. Physical harm (the most common and simplest type of harm) harm to oneself, psychological harm etc.
2
Q
What is the European court of human rights?
A
Embedded in all acts of legislation in the UK. We signed up to it as a country and are now held accountable for it. The rights should be considered in all decisions within the court of law. All laws must be compatible with the ECHR
3
Q
What is a crime?
A
A crime is a situation forbidden by the law under treat of punishment
4
Q
What are the 5 categories of crime?
A
Positive conduct
Result conduct
Negative conduct/crimes of omission
Crime of commission by omission
State of affairs
5
Q
What are positive conduct crimes?
A
A public wrong. Easiest one to prove and obvious consequences of harm. There is a wide range of positive conduct that can be criminalised. E.g. assault or murder
6
Q
What are result conduct crimes?
A
An act or conduct that has a subsequent result. Harm may not be immediate or have a direct consequence. E.g. selling glue to a minor. No harm caused while selling the glue the harm comes afterwards if the minor inhales the glue.
7
Q
What are negative conduct/ crimes of omission?
A
Failure to comply with the law. Must be a legal duty to act. If you fail to act or do something you may inflict harm to yourself or someone else. E.g. Failing to wear a seatbelt or failing to provide a breath specimen for driving offences.
8
Q
What are crimes of commission by omission?
A
Negative conduct that has a result. failing to act does have an effect and a clear consequence. E.g. starving a child to death.
9
Q
What are state of affair crimes?
A
A state of affairs exists or a person is in a particular situation that is unlawful. Tends to be statutory affairs E.g. drunk in charge of a motor vehicle.
10
Q
What acts ‘ought’ to be a crime?
A
- If they involve harm to others, they should be considered a crime (e.g. assault)
- If they cause offence to others, they should be considered a crime (e.g. racial aggravation)
- If they are contrary to morality, they should be considered a crime (e.g. incest)
- If they harm the offender himself, they should be considered a crime (e.g. drug taking)
11
Q
What 5 categories did Cubie categorize crimes?
A
Crimes against a person
Crimes against a property
Crimes against the state
Public order and public morality crimes
Regulatory offences
12
Q
What is common law?
A
The unwritten law that develops overtime based on court decisions. As the result of someone being sentenced for something in court, that case will then become an example for future acts of the same nature. It is developed and applied by the judiciary. E.g. murder is not written down as a crime it is part of common law and understood in the courts as a crime.
13
Q
What is legislation?
A
There are English laws that in Scotland we still need to conform with. Laws much more clearly define criminal acts. Within written law it is difficult to change it is very rigid.
14
Q
What are human rights laws?
A
The courts are bonded to human rights laws that they must always conform to.
15
Q
What are legal writings?
A
Courts still refer to influential books on criminal law.
16
Q
What is a case authority for common law? (laws adapting)
A
HM Advocate v Wilson 1984 SLT 117
17
Q
What is the declaratory power of the high court?
A
A historic and little used power of the high court. It allows the high court to create new crimes in a quasi-legislative fashion. This power has not been used since the case of Bernard Greenhuff (1838) vs Swinton 236.
18
Q
What/who is the Lord Chief Justice?
A
The second most senior judge in Scotland. Currently Lady Dooren, the first female ever.
19
Q
Who/what is the Lord Advocate?
A
Dorthy Bain (second ever lady in this position), chief prosecutor for Scotland, head of Crown Office & Prosecution Service (COPS) not a judge.
20
Q
What is the Solicitor general?
A
Deputy of the Lord Advocate, advises the Crown and the Scottish Government
21
Q
What are the 3 legal jurisdictions in the UK?
A
England & Wales, Scotland and Northern Ireland
22
Q
What is a solemn procedure?
A
Involves the most serious of criminal cases and may ultimately lead to a trial on indictment, either before a judge in the High Court or before a sheriff in one of the sheriff courts. Trials under solemn procedure are conducted before a jury.
23
Q
What is a summary procedure?
A
95% of procedures are summary. Is used for less serious offences and may ultimately lead to a trial before a Sheriff or a Justice of the Peace. Trials under summary procedure are conducted without a jury. This means that the judge has the say of whether someone is guilty or not.
24
Q
What are the 2 types of appeal courts?
A
Sheriff appeal court
High court of justiciary appeal court
25
What is the Sheriff appeal court?
A single appeal sheriff will review papers for the application for an appeal. To determine whether the person applying has grounds for the appeal. If the single appeal sheriff rejects the appeal it goes to a panel and if they too agree that there are no grounds for an appeal the appeal is dropped. Criminals can appeal on the grounds that they do not believe that the punishment is fair or that they don’t believe that they should have been found guilty. If someone is found not guilty but the crime believes that there is sufficient evidence, they can appeal. Victims of crime do not have the ability to appeal if their attacker was found not guilty.
26
What is the High court of justiciary appeal court?
Only sits in Edinburgh does not move around Scotland
Appellate court for decisions of HCofJ, Sheriff Appeal Court and all Sheriff and JP courts. Appeal cases referred to it by the Scottish Criminal Case Review Commission e.g. miscarriage of justice
27
What is the supreme court's role in appeal cases?
Can only consider appeal cases on issues of major public interest i.e human rights e.g Cadder v HMA 2010 UKSC 43 Supreme Court.
28
What is the maximum sentence and fine that can be given by the Justice of the peace court?
Maximum sentence 60 days
Maximum fine £2500
29
What is the maximum sentence and fine that can be given by the Sheriff Court (Summary, judge only)?
Maximum sentence 12 months
Maximum fine £10,000
30
What is the maximum sentence and fine that can be given by the Sheriff Court (Solemn, judge + jury)?
Maximum sentence 5 years (or if considered more serious may remit to high court for sentence), unlimited fine
31
What is the maximum sentence and fine that can be given by the High Court of Justiciary?
Unlimited sentence
Unlimited fine
32
What is the Scottish Criminal Cases Review Commission?
Considers alleged miscarriages of justice and to refer appropriate cases to the High Court for review
Where a convicted person has lost an appeal against conviction and/or sentence, the Commission is able to look into the matter again
Normally, it will only look into a case after an appeal has already been heard by the High Court or Sheriff Appeal Court.
Where the Commission does refer a case for review, it is up to the High Court to decide whether or not to overturn a conviction, change a sentence or give authority for a new prosecution.
33
What are the three verdicts that are available in Scotland?
Guilty
Not Guilty
Not proven
34
What is the Double Jeopardy (Scotland) Act 2011?
In Scotland when a person is found not guilty, he/she cannot be tried again for the same crime (double jeopardy)
35
What is the rule of precedence?
The rule is that the decision of the higher courts create a precedent which the lower court must follow. Decisions are binding on cases heard before.
36
What is the 'constitution of a crime'?
A person’s conduct cannot amount to a crime unless it is carried out with a blameworthy state of mind.
Conduct is not criminal unless it is carried out with criminal intent. There are some exceptions
37
What are the 2 parts of a crime?
Conduct & Mental state
38
What are the 3 conduct elements of a crime?
- Doing something wrong
- An omission
- A state of affairs
39
What are the 3 mental elements of a crime?
- Criminal intention
- Acting recklessly
- Blameworthy
40
What is the common law definition of murder?
‘Murder is constituted by any wilful act causing the destruction of life, whether wickedly intended to kill or displaying such wicked recklessness as to imply a disposition depraved enough to be regardless of consequences.’
41
What are the 3 things that must be present for a crime?
- Act
- Intention
- No defense
42
What is the statutory offence definition of vandalism?
‘Vandalism is defined by statue as wilfully or recklessly destroying property belonging to another without reasonable excuse.’
43
What is the Actus Reus?
Conduct element of an offence e.g. doing the criminal offence
44
What is a mens rea?
Criminal intent required for that offence e.g. the mental element
45
What happened in Drury v HM Advocate, 2001 SLT 1013?
Accused killed his ex-partner with a hammer
Argued a defence of provocation
Held he had not demonstrated the mens rea to murder i.e. ‘wicked intention to kill’
Therefore, anyone who kills under the defence of provocation is not guilty of murder but the lesser crime of culpable homicide.
46
What happened in the case Galbraith v HM Advocate 2002 JC 1?
The accused was found guilty of the murder of her husband
On Appeal claimed diminished responsibility at the time of
the offence due to the fact that she had been abused by her partner for years. She argued that she was suffering from PTSD from the abuse thus reducing her culpability.
Retrial was allowed
Note: the defence of diminished responsibility was accepted in this case as the ground for retrial.
47
What is someone required to have in order for a crime of omission to take place?
Legal duty or responsibility to act
48
What can class as an involuntary act?
State of unconsciousness e.g. sleepwalking
Autonomism e.g. having a spasm and hitting someone
49
What are the three levels of blameworthiness?
1. Intention or knowledge
2. Recklessness
3. Negligence
50
What are the 4 forms of mens rea?
Common element
Intention
Recklessness
Negligence
51
What is transferred intent?
Classic case of transferred intent particularly considering that assault can only be committed intentionally. The doctrine allows for A to be responsible exactly in the same way as if the blow had landed upon the intended victim rather than a bystander
52
What is recklessness?
Unjustified risk taking to act without regard to the consequences of ones actions
53
What is subjective recklessness?
Accused was aware of the risks involved in their actions
54
What is objective recklessness?
The risk should have been foreseen or the accused should have been aware of it, in view of a reasonable person standard.
55
What is negligence?
A person is said to be negligent when the conduct has failed to reach the standard of the reasonably competent or careful person.
56
What is wilful ignorance/blindness?
The accused puts themselves in an epistemic position where they don’t know or come to know about facts that are criminally relevant. Entails a normative judgment that the accused, in their circumstances, should have known about those facts.
57
What is error of law?
It is not a requirement of mens rea that the accused should have been aware of the illegality of their behaviour.
58
What is error of fact
A may have been in error about fact that would make their conduct justifiable or excusable, reasonable test
A may have been in error about a fact relevant to an ingredient of the definitions of the crime for which they may have been processed, A shoots B, thinking B was a deer
59
How do we prove mens rea?
Basic assumption mental states can be proven
Potential source of confusion dualism about the outer world and the mental world
In practice, mens rea doesn’t really look to tract actual mental state but rather it infers mental states from the factual circumstances and the actions of the accused.
60
What are the two broad approaches to proving mens rea?
Subjective
Objective
61
What is a motive?
Motive refers to the explanatory reasons for someone’s actions
Traditional view motive is irrelevant to determine mens rea. To a large extent this is true, establishing criminal liability does not require nor depend on the motives of the accused.
62
What is strict liability?
Statutory offences where one or more of the elements of the offence in the actus reus do not require mens rea to be proven for a conviction.
63
Vicarious liability
Situation where there is no mens rea on the part of the accused, but said accused can still be held criminally liable. Usually limited to cases of licensing offences and where there is a clear appropriate relationship between the accused and the agent. E.g. A's employee B sells alcohol to someone underage. A is guilty of the crime because B is in the employ of A
64
What is corporate criminal liability?
Situation where there is no traditional mens rea, as the person who commits the offence is a corporation. Companies can be convicted of crime
65
What is 'Corporate homicide' and what is the sentences?
When a company is responsible for a death, punishable in high court by a fine
66
What is causation?
The linking of a particular result or consequence (effect) to a prior action, behaviour, state of affairs or event (cause)
67
What is the importance of causation?
Creates a link between the actions of the accused and the results of those actions. Hence why causation is especially important for result crimes.
Causation is structurally part of the actus reus of result crimes and is especially important to establish for certain offences
68
What is the causation of fraud?
False pretense caused the gaining of some advantage
69
What is the causation of assault?
Causal link between the charge and any aggravations
70
What is the causation of homicide?
Causing the death of another human being
71
What are the two elements to determining causation for criminal liability?
Factual causation --> the material link between an action and a result, helps you form a chain of causation
Legal causation --> the principle by which we determine the extent to which liability can be allocated
72
What are the two main steps when analyzing causation?
Determine factual and legal causation
73
How to determine factual causation?
But for test
74
What is the think skull or eggshell rule?
You take your victims as they come’. An accused will be criminally liable even if death or injury results from some pre-existing weakness or condition of the victim.
75
What can break the chain of causation?
Intervening acts of the victim
Intervening acts of third parties
76
What are inchoate offences?
Inchoate means not fully formed or developed and, in our context, means the preparation for the commission of an offence.
Backword looking offences, towards the time before the actualising of the criminalised harm/wrong
77
What are the 3 inchoate offences before a crime is fully formed?
Incitement
Conspiracy
Attempt
78
What is incitement?
An attempt to form a conspiracy.
Usually through an invitation from the accused to another to enter a criminal conspiracy or to participate in the perpetration of a crime.
79
What is conspiracy?
Conspiracy is constituted by the agreement of two or more persons to further or achieve a criminal purpose. Actus Reus: entering into the agreement. Mens rea: intention demonstrated by agreeing to a criminal purpose.
80
What is chain conspiracy?
A agrees which B and then C agrees with B (Chain of agreements). Chain conspiracies it’s difficult to link all the members of the conspiracy especially because C may not be aware of A
81
What is wheel conspiracy?
Where everyone agrees with one central member, Everyone (spooks) rally around the centre (ringleader)
82
Why do we criminalize conspiracies?
Instrumental preventative criminalisation power to intervene at an early stage
Special dangers associated to group criminal conduct greater threat to law and order.
83
What are attempts of crime?
Criminalisation of an endeavour to commit a crime, even if the specific harmful or wrongful result does not come to pass
84
What are the two types of attempts?
Complete attempts: Act correctly designed to bring about crime (would normally be successful), but the chain of events is interrupted by an unforeseen event fire is raised to destroy a building, but it’s extinguished before it takes hold
Incomplete attempts: Act incorrectly deigned to bring about a crime because of a misjudgment or mistake of the perpetrator gun misfire or a missed shot.
85
What is the mens rea of attempts?
Men rea of an attempted crime is the same as that of the relevant substantive or completed crime
86
What is the last act theory?
An attempt is committed once the accused has done everything required of him/her to commit the crime. Associated to an ‘irrevocability’ test (no going back) conduct of an accused can be inferred as preparatory much before the ‘last’ act has been done and would imply that in practice the police cannot intervene until the ‘last’ act has been done.
87
What is the perpetration theory?
The accused has committed an act which is sufficiently proximate to the commission of the completed crime. The accused must have passed ‘from mere preparation to perpetration’
88
What is Scotland's stance on impossible attempts
What if someone attempts to commit a crime which is impossible to complete? E.g. shooting a dead corpse, pickpocketing an empty pocket
Position in Scotland is clear: factual impossibility is no bar to criminal liability. So, it cannot be offered as a general defence to a charge of attempted crime.
89
What is inherent impossibility?
Failure to commit the crime because accused has chosen an inherently impossible or unreasonable method of attempting the crime, like attempt to murder through voodoo or witchcraft. Per Docherty v Brown, if a crime was fanciful and there was no risk of harm to anyone then it would not be appropriate to prosecute.
90
What is absolute possibility?
Failure to commit the crime because the conduct is not a recognised crime in criminal law, like hunting rabbits or the ‘crime’ of adultery. An accused cannot be convicted of a non-existent crime.
91
What must we consider when looking at breach of the peace?
Was the conduct offensive, annoying or inconvenient?
Did the conduct harm a person or property?
Did the conduct pose a threat or risk of harm?
Was there a criminal responsibility attached to the conduct?
92
What constitutes public alarm?
The context and circumstances of the behaviour are relevant.
The evidence and circumstances are viewed from the objective standpoint of the reasonable person observing or experiencing the conduct.
93
What is statutory breach of the peace?
(a) A behaves in a threatening or abusive manner
(b) The behaviour would be likely to cause a reasonable person to suffer fear or alarm, and
(c) A intends by the behaviour to cause fear or alarm or is reckless as to whether the behaviour would cause fear or alarm
94
What is the actus reus for statutory breach of the peace?
The conduct must be threatening or abusive behaviour that would be likely to cause a reasonable person fear or alarm.
The behaviour need not involve serious disturbance
95
What is the mens rea for statutory breach of the peace?
An intention to cause fear or alarm or recklessness regardless as to whether fear or alarm is caused by the particular behaviour
96
What is a statutory defense to breach of the peace?
A statutory defence is available in s.38 (2) of the 2010 Act where an accused can show that the behaviour was in particular circumstances, reasonable
97
What is the statutory offence of stalking?
A course of conduct carried out by a person and as a result the other person suffers fear or alarm. E.g. A engages in a course of conduct and A’s course of conduct causes B to suffer fear or alarm.
98
What are the actus reus requirements for stalking?
Condict must be on more than one occasion
And
Must cause or intend to cause fear or alarm
99
What is the mens rea for stalking?
Where A engages in the course of conduct with the intention of causing B to suffer fear or alarm.
Or
Where A knows or ought in all the circumstance to have known, that engaging in the course of conduct would be likely to cause B to suffer fear or alarm.
100
What 3 conditions must be satisfied for stalking?
1. The ‘course of conduct’ must be conduct on at least two occasions s 39 (6)
2. There must be intention to cause fear or alarm or knowledge that action would be likely to cause fear or alarm s39 (4)
3. The course of conduct does in fact cause the victim to suffer fear or alarm.
101
What are the 3 statutory defenses of stalking?
(a) Authorised by a law
(b) Was engaged in the preventing or detecting of a crime
(c) Was in, the particular circumstances, reasonable.
102
What is the definition of mobbing and rioting?
When persons combine together for a commonly shared purpose by violence or intimidation (by unlawful or criminal means), where their combined conduct causes alarm to the community and disturbance to the public peace.
103
What is 'common purpose'?
‘Common purpose’ may be lawful but yet the manner in which it is carried out is unlawful e.g. with violence or threatening behaviour i.e for there to be an offence there must be a criminal purpose.
It is not necessary that any actual violence shall be used in order that a mob may be deemed riotous; it is sufficient if the mob assembles for the purpose of intimidating people in the lawful performance of their duties
104
What is the mens rea for mobbing and rioting?
(a) Knowledge of the common purpose
And
(b) Intention to aid and abet that purpose
105
What are the 3 categories of offensive weapons?
1. Weapons made for the purpose of causing injury to others
2. Weapons that are adapted for such purposes
3. Items which have an innocent purpose but can be used as a weapon e.g. baseball bat, hammer etc…
106
What are the 3 statutory defenses of carrying offensive weapons?
(a) For use at work (a travelling chef carrying a set of knives)
(b) For religious reasons or
(c) As part of a national costume (Sgian-dubh (ski and doo))
107
What classes as a public place?
A public place is anywhere that the public has, or is permitted to have access, even if they pay to have access e.g. fairground
A car or other vehicle is also classed as a public place whilst on a highway. Note: leaving a knife in a parked car is not a defence.
108
Is fear of future attack a reasonable excuse for carrying offensive weapons?
No
109
What is a hate crime?
Hate crime is a term used to describe behaviour which is both criminal and rooted in prejudice. This means that the law has been broken, and the offender’s actions have been driven by hatred towards a particular group.
110
What are the five protected characteristics under The Equality Act 2010?
Race, religion, sexual orientation, transgender identity, disability
111
What are racial aggravation to criminal offences?
Certain listed offences can be racially or religiously aggravated i.e. if a person commits a crime and in doing demonstrates or is motivated by hostility on the grounds of race or religion that offence becomes a separate and additional aggravated offence.
E.g. Racially aggravated breach of the peace
112
What are the current 7 protected characteristics in Scotland?
(a) Age
(b) Disability
(c) Race, colour, nationality (including citizenship) or ethnic or national origin
(d) Religion or, in the case of a social or cultural group, perceived religious affiliation
(e) Sexual orientation
(f) Transgender identity
(g) Variations in sex characteristics
113
What are offences of stirring up hatred?
- The offence of stirring up hatred had previously applied only in relation to racial hatred, but the Act now proscribes stirring up hatred against persons possessing any of the seven protected characteristics
- Can be against both an individual or a group
114
What is assault?
Assault is a common law offence, and is an attack upon another with the intention of injuring that person or producing the fear of immediate injury in that person's mind. 'An intentional attack'
115
What is the actus reus of assault?
- Assault is a deliberate attack on another.
- It is usually a hostile act
- Every attack upon another person is an assault whether it injures or not
- Example: A throws a brick at B but misses him, this is an assault, there was an intention to injure
116
What injury can attacks cause?
- Bodily harm is the usual result of an assault
- Can be a direct or indirect attack
- Injury can be minor or serious but physical injury not a prerequisite
- E.g. threatening gestures may be an assault
117
Can fear of injury constitute an assault?
Yes, E.g. threatening gestures
118
How do we determine the criminal liability for injury?
Intention to injure is a critical factor
119
Must injury be a direct consequence of assault?
Yes
120
What can aggravate an assualt?
- Aggravation may make crime more serious e.g. use of a weapon, to severe injury, to danger of life, domestic abuse (statutory aggravation) per the Abusive Harm and Behaviour (S) Act 2016
121
What is the mens rea of assault?
Evil intention is ‘the essence of assault’
2 forms:
1. Intention of injuring that person
Or
2. Producing the fear of immediate injury in that person’s mind
122
What is the case authority for assault?
Smart vs HMA 1975 S.L.T. 65
123
What is 'evil intent'?
- Must distinguish assault from other actions
- E.g. where force is used but there is no evil intention there can be no assault
- Example, police arresting suspects, sports, medical staff dealing with violent patients
124
What is transferable intent?
Intent may be ‘transferred’
Accused had an intention to injure even though it was not directed at victim.
125
What are potential defenses to a charge of assault?
Reasonable restraint
Self-defense
‘reasonable chastisement of children’ no longer recognised. The children (Equal Protection from Assault) (Scotland) Act 2019
126
What is the children (Equal protection from Assault) (Scotland) Act 2019?
The abolition of defense of reasonable chastisement. (No longer allowed to physically punish a child)
127
Does consent permit assault?
Consent does not per se prevent an accused being held guilty of an assault
128
Is consent ever relevant?
Consent can be relevant in some circumstances
Each case should be decided on its own facts
129
What is the defense of reasonable restraint?
- Defence of reasonable restraint may be available to the police, prison officers etc
- Restraint must be reasonable (and necessary)
- If it is not reasonable it will constitute assault
- Must establish necessary mens rea for assault ie. Evil intent
130
What constitutes culpable and reckless conduct?
Culpable and reckless acts either
(a) Cause injury to others
(b) Create a risk of injury
The conduct does not necessarily require proof of injury BUT must display high degree of recklessness or indifference of potential consequences.
131
What are the two general offences of culpable and reckless conduct?
1. Reckless injury
2. Reckless Endangerment
132
What are the three specific offences of culpable and reckless conduct?
1. Culpable and reckless discharge of firearms
2. Culpable and reckless administration of harmful substances
3. Culpable and reckless supply of harmful substances
133
What is reckless injury?
- It is a criminal offence to recklessly injure a person
- Reckless conduct which causes actual injury
- Must be a causal link between conduct and injury
134
What is reckless endangerment?
- It is a criminal offence to act with reckless behaviour that is objectively dangerous to others
135
Can assault be committed recklessly or negligently?
No, must be a mens rea of evil intention
136
What is the objectetive approach to determine mens rea?
Reasonable man test
Is this a 'risk' which the 'reasonable' man would have taken?
137
What is the subjective approach to determining mens rea?
(A) What did the accused actually intend?
(B) What did the accuse actually foresee?
138
What is a deliberate risk taker?
Someone who knows that their conduct presents risks - E.g. reckless driving
139
What is a risk taker unaware of a risk?
A person indifferent to the consequences
140
What is the culpable and reckless administration of harmful substances?
The deliberate and reckless administration of harmful substances to a person
Example: The child was given whiskey, drank voluntarily but lack of force was irrelevant, consequences were relevant i.e. Needed medical treatment
141
What are the 4 types of criminal homicide?
Murder
Culpable Homicide
Statutory death by dangerous driving
Corporate homicide
142
What is homicide?
- A common law offence
- Homicide involves the killing of another self-existent human being
- Abortion is not discussed in terms of homicide due to different legislation
- A criminal homicide must be done with the requisite state of mind and without any legal justification or excuse
- The threshold of homicide is very high. Must be able to prove homicide without any reasonable doubt
143
What is the actus reus of homicide?
- The accused must cause the victims death by an act or an omission
144
What is death as a result of an act?
- Must be a causal link between an act and the victim’s death
145
What is death as a result of an omission?
Death by failing to act
146
What are two key things that need to be determined to establish mens rea?
When does life begin?
When does life end?
147
What classes as the beginning of life?
- ‘Fully Born’ – Child must have both ‘cried and breathed’ BUT if a chold who is born alive dies as a result of injuries inflicted before birth, this may be homicide
- A person must be fully born before they can be the subject of homicide
148
What classes as the end of life?
- There must be a death for a crime of homicide and a causal link between the act and the death
149
What is the traditional definition of murder?
‘Murder is constituted by any willful act causing the destruction of life, whether intended to kill, or displaying such wicked recklessness as to imply a disposition depraved enough to be regardless of consequences.’
150
What is the actus reus of murder?
The accused must have caused the victim’s death either by an act or an omission.
Murder is constituted by any wilful act causing the destruction of life, whether
intended to kill, or displaying such wicked recklessness as to imply a disposition depraved enough to be regardless of consequence.
151
What is the mens rea for murder?
a) Wicked intention to kill
or
b) Wicked recklessness
152
What is wicked intention in regards of mens rea for murder?
Wicked’ means lack of justification or excuse
Wickedness of intention to kill can be implied by the absence of evidence justifying or mitigating accused’s action.
Provocation reduces culpability, self-defence absolves culpability
153
What is wicked recklessness in regards to mens rea for murder?
Where the accused is assumed not to have intended to kill.
a) Mens rea can be proved by evidence of a deliberate intention to kill
Or
b) by such recklessness as to show that the accused was regardless of the
consequences of his act
154
What is meant by wicked recklessness and what is the case authority?
Wicked recklessness is an alternative form of mens rea for murder which applies where the accused is assumed not to have intention to kill.
Case authority: Cawthorne v HMA (1968) J.C. 32
155
How can mens rea of intention to murder be determined?
1. Accused meant to cause bodily harm
2. Harm inflicted shows indifference to whether victim lived or died
e.g. Acting in a way that does not care if victim lives or dies
156
What is the definition of culpable homicide?
Culpable homicide is the name applied in law to
cases where the death of a person is caused, or materially accelerated by the improper conduct of another and where the guilt does not come up to the crime of murder (Macdonald p150)
Culpable homicide covers the killing of human beings in all circumstances short of murder, where the criminal law attaches a relevant measure of blame to the person who kills.
157
What is culpable homicide?
Circumstances of death fall short of murder. The actions of the accused are not sufficiently blameworthy to satisfy the mens rea for murder.
Must look to the mens rea to understand the causal connection between the crime and the death
158
What is the mens rea for culpable homicide?
- Only if the mens rea for murder, i.e. wicked intention or wicked recklessness is in some way diminished does the lesser charge of culpable homicide become the correct one.
159
What are the 4 categories of culpable homicide?
Assault type
Involuntary by an unlawful act
Involuntary by a lawful act
Voluntary act
160
What is assault type culpable homicide?
- Death brought about by a deliberate unlawful act, such as an assault
- Death is causally linked to an assault, but may not be foreseeable outcome of the assault
161
What is the defense of provocation in terms of murder and culpable homicide?
- Is a partial defence which, if accepted, may reduce the level of culpability from murder to culpable homicide
- Cannot reduce criminal liability from culpable homicide to assault
162
What are the 4 requirements for provocation?
1. Must be either a serious physical attack or evidence of adultery
2. Loss of self-control exhibited by the accused
3. Response must be immediate (i.e. not premeditated)
4. Proportionate response by the accused (being hit and then shooting that person is not proportionate)
163
What is involuntary culpable homicide by an unlawful act (not assault)?
The accused commits a crime and though his/her criminal actions causes a death, even though the death was unintentional
164
What is culpable homicide by a lawful act?
- Death caused by the grossly careless manner of performing an otherwise lawful (i.e. not criminal) act
- Mens rea of simple recklessness
- Standard of lack of car is ‘high’
- E.g. A builder throws debris from building site onto street below and fatally injures a pedestrian.
165
What is culpable homicide by a voluntary act?
- The accused has the mens rea for murder but can successfully plead provocation or diminished responsibility
- Evidence relating to provocation is simply one of the factors the jury should take into account determining the accused’s state of mind at the time.
166
What is corporate homicide?
- Corporate manslaughter and corporate homicide act 2007 (UK wide law)
- An organisation commits corporate homicide if
- (a) the way its activities are managed cause death and
- (b) there was a gross breach of a duty of care owed to that person
167
What is an omnibus charge?
A series of charges/assaults
168
What is the disclosure or threat of disclosure of photograph or film?
- It is an offence to disclose or threaten to disclose a photograph or film which shows another person in an intimate situation
169
What are the three conditions of engaging in a course of abusive behaviour?
Condition one
A engages in a course of behaviour which is abusive of A’s partner of ex-partner (‘B’).
Condition two
A reasonable person would consider that the course of behaviour would be likely to cause B to suffer physical or psychological harm.
Condition three
A either intends by the course of behaviour to cause B to suffer physical or psychological harm, or else is reckless as to whether the course of behaviour causes B to suffer physical or psychological harm.
170
What is defined as abusive behaviour as?
(a) Behaviour directed at B that is violent threatening
Or
(b) intimidating behaviour directed at B, at a child of B or at another person that either has as its purpose one or more of the “relevant effects” set out in the Act or would be considered by a reasonable person to be likely to have one or more of the relevant effects
171
What are the five categories of 'coercive effect' of behaviour?
- Making B depend on or subordinate to A
- Isolating B from friends and relatives or other sources of support
- Controlling regulating or monitoring day-to-day activities
- Depriving B of or restricting B’s freedom of action
- Frightening, humiliating, degrading or punishing B
172
What are defenses of 'coercive' behaviour?
‘In proceedings for an offence under section 1(1), it is a defence for A to show that the course of behaviour was reasonable in the particular circumstances’
Examples:
- Acting to control family finances due to gambling addiction of the other
- Preventing their partner to see certain people due to the fact that they are a know drug supplier
173
What is rape?
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.
174
What is 'free agreement'?
is a vague non defined phrase, this allows the courts to determine a definition in each individual case.
175
What is the mens rea for rape?
The mens rea of this crime includes the intention to have intercourse with the woman without her consent. The absence of a belief that she was consenting is an essential element in it. If a man has intercourse with a woman in the belief that she is consenting to this he cannot be guilty of rape. (Lord Hope)
176
What is the Rape pre-sexual offences (Scotland) Act 2009?
- Applies to crime after December 2010
- Modernised the Scots law of sexual offences replacing the common law offences with statutory provisions
- Created a broader, statutory definition of rape
- Sets out an offence of sexual assault by penetration, which covers, for example, penetration by objects, and which is equivalent in seriousness to rape
- Creates specific offences in relation to the rape and sexual assault of children and makes it clear that anyone under the age of 13 is considered unable to consent to sexual activity.
177
What is theft?
Theft is constituted by the appropriation of any item of corporeal moveable property which is in the ownership of another person, without the owner’s consent and with the intention of depriving the owner of that property permanently, temporarily or indefinitely. (Ferguson & McDermid p353)
178
What is the mens rea of theft?
Must be either
(a) Intention to deprive
Or
(b) Intention to appropriate
179
What 4 components must be present to constitute theft?
1. Appropriation
2. Property
3. Belonging to another
4. Lack of consent
180
What is appropriation?
Hume’s definition – the dishonest taking possession of a thing and carrying it away. Taking and carrying away
181
What is owner's loss?
The owner must be deprived of ownership
The gain for another is not the defining criteria
182
What is corporeal moveable property?
A thing can be stolen if it can be physically possessed and moved from place to place
Corporeal = things that can be touched
Moveable = capable of being taken
183
What is own property in terms of theft?
In Scotland you cannot steal your own property. To prove theft the accused does not need to know who owns it. The owner cannot be the accused
Note: it is possible in the English Law to steal own property per the Theft Act 1968
184
What property cannot be owned?
1. Bodies/body parts - A dead body cannot be owned but under circumstances may become 'property' and hence can be stolen.
2. Wild animals - Status of res nullius, not owned anyone. - Once killed or captured then ownership follows possession, and they may be stolen.
185
Can lost property be stolen?
Property that has been lost continues to be ‘owned’ and therefore may be stolen. ‘Temporarily’ lost property is not abandoned
186
What is theft of a child?
Theft of a child (under the age of puberty) is the deliberate taking of a child from the custody of the parent or person with the parental right of custody. Crime of plagium.
187
What constitutes belonging to another?
Crime of theft protects a person’s right to property. Someone must own the property. Knowledge of ownership is not needed to establish theft
Defence is possible if there is belief property belonged to accused
188
What constitutes lack of consent in terms of theft?
Essential for theft
Usually obvious from the facts
The act of appropriation must have been done without the consent of the owner, his authorised agent or representative
189
What is the mens rea of theft?
Intention to deprive or to appropriate.
Do not need to show any material gain from the theft
It is the owner’s loss and not the other’s gain which is significant
Court must look for evidence of wickedness or intention to steal
190
What is nefarious purpose?
Nefarious = criminal or wicked
Note this is an exception to the mens rea rule for theft
An ulterior motive for committing the theft is no defence or justification
191
Is holding property to ransom theft?
Yes
192
What is reset?
- Receiving stolen goods is the crime of reset
- Is a separate offence to theft
- Reset involves taking or retaining possession of stolen goods, knowing them to be stolen, with intention of keeping them from the owner (Hume)
193
Can someone be guilty of both theft and reset for the same offence?
No
194
What is the actus reus for reset?
Accused must receive or retain property (or know about its retention by a third party) i.e. take possession.
Property must be acquired by theft, robbery, fraud or embezzlement
Personal handling not needed for possession
195
What is privy to retention?
Knowledge about retaining of property that has been dishonestly come by also amount to reset
196
What is the mens rea of reset?
1. Knowledge that the goods were dishonestly obtained
And
2. Evidence of an intention to deprive the owner of the goods
197
What is offence of housebreaking?
House breaking is not a criminal offence in itself
If a ‘house’ is unlawfully entered and
- An item of property is stolen the offence is ‘Theft by housebreaking’
- No items of property are stolen the offence is ‘House breaking with intent to steal’
198
What is the definition of a house?
Any roofed building finished or unfinished that is secure
199
Does housebreaking need to have an intent to steal?
There can be no conviction if the intent to steal cannot be proved or inferred
200
What is theft by opening a lockfast place?
A lockfast place is anything secured by lock and key. E.g. car, money box, a locked room in a building
201
How can the offence of theft by opening a lockfast place?
(a) Forcing open or
(b) By stealth
E.g. use of stolen key would suffice for this crime
202
What are combined offences in terms of theft and housebreaking?
(a) Housebreaking with intent to steal
(b) Theft by opening a lockfast place
203
What is the definition of robbery?
Theft accomplished by means of personal violence or intimidation
There cannot be robbery without theft
Robbery is theft accomplished by means of personal violence or intimidation
Robbery is the deliberate taking of moveable and corporeal property from another by force and against their will.
204
What is the mens rea of robbery?
Is uncertain but case law suggest would not not require ‘evil intent’ needed for assault. Violence must however be linked to theft. intention to deprive or to appropriate.
205
When does theft become robbery?
All the requirements of theft + violence or threat of violence.
The degree of force must be reasonably described as violent
206
What is the actus reus for robbery?
Theft + threat of personal violence directly directed to the theft
207
What is the definition of malicious mischief?
Intentional or reckless damage or destruction of another’s property without consent
208
What are the two versions of malicious mischief?
1. Traditional definition
2. ‘Wilson’ Malicious Mischief
209
What is the actus reus for malicious mischief?
Unauthorised inference with another’s property such as to cause deliberate loss to the owner/possessor. No physical damage needs to be caused
210
What is the mens rea for malicious mischief?
(a) Deliberate and intentional damage, or
(b) Recklessness – i.e.. Deliberate disregard or indifference to the consequences
There is no requirement to prove malice
211
What is traditional malicious mischief?
Only corporeal property can be damaged or destroyed. Property must belong to another
212
How is damage assessed (traditional malicious mischief)?
(a) Circumstances
(b) Degree of damage
(c) Nature of interference
213
What is 'Wilson' malicious mischief?
No direct physical damage (usual in cases of malicious mischief) – was not an essential element in the criminal offence which was satisfied by economic loss.
214
What is vandalism?
A statutory crime. Any person who without reasonable excuse willfully or recklessly destroys or damages property belonging to another shall be guilty of the crime of vandalism
215
What is the test of recklessness for vandalism?
More than mere carelessness is required for vandalism.
Conduct by the accused must show obvious or material risk of damage
216
What is fire-raising?
Distinct from malicious mischief
Intentional or reckless damaging or destroying the corporeal property of another without consent
217
What are the 2 offences of fire-raising?
Willful fire-raising
Culpable and reckless fire-raising
218
What is the actus reus for both fire-raising offences?
Setting fire to corporeal property. The fire must have ‘taken effect’ for the actus reus to be satisfied, (even if the fire is extinguished very quickly). Amount of damage cause by fire can be minimal.
219
What is the mens rea for willful fire-raising?
Intention to destroy by dire
220
What is the mens rea for culpable and reckless fire-raising?
Recklessness is sufficient
221
What is the distinguishing difference between embezzlement and theft?
The actus reus
222
What is the definition of embezzlement?
Is the deliberate appropriation to one’s own use and purpose of property entrusted to one by the owner (or person otherwise entitled) in such a way as to confer the status of a quasi-owner, for the purpose of dealing with that property and accounting for one’s dealings with it to that owner (or person otherwise entitled).
223
What is the actus reus of embezzlement?
- Appropriation (same as theft)
- Property (same as theft)
- Already in possession
- With authority of another
- Obligation to account
224
What authority is required for the actus reus of embezzlement?
Owner must have given authority to accused to deal with property
Demonstration of quasi-ownership i.e. would have same powers as owner
E.g. trustee, agent, manager
Embezzlement is restricted to items that someone has appropriated legally but uses the item dishonestly
225
What is the mens rea for embezzlement?
Deliberate intention to appropriate must be proved or inferred from the facts
Dishonesty – must be established
226
What is extortion?
An accused is guilty of extortion if he/she makes a demand of a victim that is backed by a threat that the victim should
(a) Act to the advantage of the accused, or
(b) To another person
(c) To the victim’s disadvantage
227
What is the crime of uttering?
A demand backed by a threat to make the victim coerced into acting to the advantage of another
228
What is fraud?
Fraud is a result crime
Bringing about a result by false pretence
Doesn’t need to be monetary gain but often is
Perpetrator gains something and the victims loses something
Victim must be persuaded to do something he/she would not otherwise have done
229
What three element must fraud contain?
1. A false pretence
2. A definite practical result
3. A causal link between the pretence and the result
230
What counts as a false pretence?
Can be express or implied
--> BUT
Pretence must be proved to be false – if it is true then there is no crime of fraud
A practical result/outcome must result from the pretence (but it does not need to successful)
231
What is an express pretence?
- Written or spoken pretences
- E.g. False ID at licensed premises
232
What is a pretence for something that did not happen?
E.g. pretending to carry out work and charging for it amounts to fraud
233
What is an implied pretense?
There is no need for either spoken or written word to satisfy ‘false pretence’
‘Creating’ a misrepresentation can be false pretence
234
What is the mens rea for fraud?
The accused must know that what they say, writes or implies false
Mens rea demands:
Knowledge that what is said or written is false and intention to deceive
Carelessness/recklessness does not satisfy intent
235
What are the jurisdiction rules for fraud?
Material part of fraud must be in Scotland
The consequences can extend beyond Scotland but must be focused in Scotland
236
What is the definition of forgery?
The deliberate exposure of a forged document to another person, as if it were genuine, where the person exposing the forged document knows it is forged and intends that the recipient should be deceived by it
237
What is fraud?
- Forgery is not a result crime
- The crime is the communication with the intent to deceive
- There does not need to be a practical result
- E.g. Forging a signature
238
What is the actus reus for forgery?
- Forgery itself is not a crime
- The document has to be uttered as genuine
- The actus reus is compete when the document passes beyond the control of the forger
239
What is uttering?
- Intention to deceive by presenting as genuine
- Can be at a specific person or not
- Examples
- Hanging a forged practising certificate in a waiting room
- Posting a cheque that has falsely signed
- Altering a document after signature e.g. a will and then presenting as original
240
What is the mens rea for uttering?
- The accused must know the document is forged and there must be an intention to deceive another person
241
What is criminal responsibility?
- A person is criminally liable for his/her own acts or omissions in a criminal act
- But
- Where people act as a group, the whole group may be held responsible for the actions of each person.
- You took no steps to stop the crime, you watched it happen and did nothing to stop it.
242
What is the English term for art and part liability?
Aiding and abetting
243
What is the general rule for aiding and abetting?
Where or two or more people engage together in committing a crime, each actor is equally guilty of the whole crime irrespective of the particular role played by each individual
244
What are the defining features of art and part liability?
- Requires 2 or more people
- Even if there are different role everyone is culpable for everyone’s actions if they are aware of what others are going to do
- Included different roles within the group
- Can include advice on or prior agreement to carry out a crime
- E.g. a contract killing
245
What happens if there is a common plan (art and part liability)?
- If accused are parties to a common plan each accused is held responsible for the acts of all the others
246
What happens if there is no common plan or not all accused know the plans of each other?
Each accused is responsible fir their own acts only
247
Can being a lookout as a specific role be classed as art & part liability?
Yes
248
Is the acquittal of other offenders a barrier to the conviction of another accused?
No
249
In order for there to be differential verdicts what must there be? (Art and part liability)?
Striking diffences
250
- Can a person, who is originally a party to a criminal activity then disassociate themselves from the enterprise to avoid criminal liability?
Use MacNeil v HMA (1986) J.C. 146. No
251
What does criminal liability require?
- Actus reus
- Mens rea
- No defence
252
Is mitigation a defense?
- Mitigation is not a defense; it is a reason someone may have committed the crime. It is can only be used post trail to influence sentencing
253
What is an absent element?
- Where the accused denies an essential element of the crime i.e. denies either
(a) They committed the actus reus (error of fact)
Or
(b) They had the necessary mens rea (error of law)
254
What is a justification defence?
- Facts do not challenge the accused committed the actus reus of the crime and had the necessary mens rea
- BUT there may be another reason why the accused should not be convicted of the criminal offence i.e the criminal offending can in some way be ‘justified’ in the specific circumstances of the offence
- Example
- The accused admits the act alleged but claims that they were acting in self defence, or they were coereced
255
What is an excusatory defence?
- The accused admits the act alleged but claims that the conduct should be excused due to the lack of mens rea
- Example, The accused suffers from a mental disorder
256
What are the four special defences?
Alibi
Incrimination
Mental disorder/automatism
Self defence
257
What is an alibi?
I was not there . - Defense must be clear and offer details as to the whereabouts of the accused at the time of the offence was committed
258
What is incrimination?
It was not me
Crime was committed by another person – a case of mistaken identity
Incrimination is ‘it wasn’t me; it was X who did it’
259
What is a mental disorder as a defence?
Cannot be held criminally responsible due to mental disorder (balance of probability)
260
What are irressitible impulses?
An inability ‘to control’ conduct
261
What is voluntary intoxication?
e.g. drink or drugs taken freely
262
What is the legal requirement to determine mental disorder at the time of a crime?
- Legal Requirement is medical evidence of an inability at the time of the conduct constituting the offence to appreciate the nature or wrongfulness of the conduct
263
What is appreciation?
is broader than mere knowledge and includes a level of rational understanding
264
What is wrongfulness?
includes moral and legal wrongfulness
265
What does unfit for mean?
- Not to be confused with the special defence of mental disorder
- A person is unfit for trial if it is established on the balance of probabilities that the person is incapable, by reason of a mental or physical condition, of participating effectively in a trial
- A person who is suffering from mental disorder at the time of the trial may be able to rely on a plea in bar of trial, which means that they cannot be tried
266
What is automatism?
- The defence is concerned with mental incapacity resulting in involuntary actions by the accused
267
What are the 4 conditions that must be met for automatism?
1. Behaviour caused by an external factor
2. External factor must not be self-induced
3. Actions must be one which the accused was not bound to foresee
4. It must have resulted in a total alienation of reason amounting to a complete absence of self-control
268
What is an external factor which was not self-induced?
- Something inhaled, consumed or ingested involuntarily
- A spiked drink (involuntary intoxication)
- Toxic fumes
- There must be a causal link to determine the impact of the external factor
269
Is sleepwalking a defence?
yes
270
What is hypoglycaemia?
Low blood sugar
271
Who does the burden of proof lies with in terms of defences?
The defendant
272
Is voluntary intoxication a defence?
- A person cannot rely on the automatism defence if the behaviour was caused by voluntary intoxication
273
What is self-defence?
A complete defence
Justifiable actions used in retaliation against someone who uses unlawful force – must relate to the violence used
No requirement to demonstrate a loss of self-control
274
What are the 3 requirements for self-defence?
1. Imminent danger to life or limb
2. No reasonable opportunity to retreat
3. Reaction mist be proportionate
275
What does 'no opportunity to retreat' include?
- Opportunity to retreat must be reasonable
- E.g. someone would not be expected to jump out a first-floor window
276
Are self-defense and provocation a complete or partial defense?
Self-defence - complete defence
Provocation - partial defence
277
In terms of murder what does provocation do?
Changes a charge of murder to one of culpable homicide
278
Provocation: the argument of Justification and Excuse
- The accused’s anger is justified
- BUT the loss of self-control and resulting violence is not excusable
279
What are the requirements for the partial defence of provocation?
1. Loss of self-control
2. An immediate response
3. An appropriate and proportionate response to the nature of the provoking act
- No defined measure of the response of the provocation but if the accused acts in a way that is an overreaction (i.e. not the ordinary person) then the court would be entitled to conclude the accused had acted in a way that demonstrated the necessary mens rea for murder
280
What are the acceptable provoking acts?
Provocation by assault
Provocation by infidelity
281
What is the domestic abuse (s) act 2018?
Engaging in course of abusive behaviour
A statutory criminal offence of abusive and / or coercive behaviour that a reasonable person would consider that the course of behaviour would be likely to cause B to suffer physical or psychological harm
Recognises the impact of a pattern of
psychological trauma manifesting in a disturbed
state of mind
282
What is the defence of necessity?
- Breaking the law is the lesser evil
- A complete defence
- Applies when breaking the law is necessary in order to avoid dangerous circumstances
- Available to all crimes except murder [if there is a homicide it would be culpable homicide]
283
What is the checklist of criteria for the defence of necessity
1. Good cause to fear that death or serious injury would result unless he acted.
2. At the material time there was no alternative course of action.
3. At the material time, have reason to think that the acts carried out had some prospect of removing the perceived danger.
4. That cause for fear must have resulted from a reasonable belief as to the circumstances.
5. The actor must have been impelled to act as he did by those considerations.
6. The defence will only be available if a sober person of reasonable firmness, sharing the characteristics of the actor, would have responded as he did
284
What is the defence of coercion?
- Contrast with necessity breaking the law to avoid dangerous circumstances other than a threat
- It is an order followed by a threat
285
Is coercion a complete or partial defence?
Complete apart from the crime of murder
286
In terms of coercion what must the threat be?
Immediate
- If there is an opportunity to run away or to seek the protection of the forces of law and order before the crime is committed, then the accused cannot claim to have been coerced
287
