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79 Cards in this Set
- Front
- Back
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Murder and Attempted Murder
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Drury v HMA: '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 the consequences.'
Macdonald: the key authority |
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Actus Reus of Murder
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The death of another person
- murder is a result crime - includes a range of conduct, such as fists (Charles Mcdonald) to the employment of weapons (Cawthorne v HMA) |
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Mens Rea of Murder
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either wicked intent or wicked recklessness.
1. wicked intent: also understood as the absence of any legally relevant factors that could justify the accused's actions (Elsherkisi v HMA) 2. wicked recklessness: 'utter disregard of what the consequences of the act in question may be so far as the public are concerned' (Quinn v Cunningham) |
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Cawthorne v HM Advocate |
Murder 1. the accused should have meant to perpetuate some great and outrageous bodily harm 2. that that harm might as well have resulted in death 3. that that harm showed an absolute or utter indifference as to whether the victim lived or died |
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Lethal Weapons and Particular Crimes |
Fraser v HMA, Lord Sands: 'if a man uses reckless violence that may cause death, and uses that violence in perpetrating a crime, it is murder.' The more dangerous the weapon, the more likey it is possible to show that the accused intended to cause outrageous bodily harm. |
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HM Advocate v Rutherford |
Consent is not a defence for murder |
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Scott v HM Advocate |
In a drug overdose the mens rea for murder may not necessarily be met |
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Sentence for Murder |
Mandatory life sentence |
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Culpable Homicide: Actus Reus |
Actus Reus: same as murder (Charles Macdonald and Drury v HMA |
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Categories of Culpable Homicide |
1. Voluntary Homicide a) mitigated murder b) forms of intentional killing 2. Involuntary Homicide a) unlawful act culpable homicide b) lawful act culpable homicide |
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Unlawful Act Culpable Homicide: assault type |
- where the death is casually related to assault, but it is not the readily foreseeable result of the assault - not generally possible to infer the mens rea for murder - HMA v Deleny |
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Thin Skull Rule |
Bird v HMA |
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Unlawful Act Culpable Homicide: Crimes of Real Injury |
- Connection between the crime itself and the death must be established (HMA v Purcell) - James Niven: discharge of fire arms - David Keay: throwing something out a window - Sutherland v HMA: wilful fire raising - Lord Advocate's Reference (No.1 of 1994): reaches supply of potentially noxious substances - mens rea: recklessness generated by, or associated with, the primary crime |
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Lourie v HMA |
Theft in such a reckless manner resulting in death- quashed on appeal |
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Lawful Act Type Culpable Homicide |
- grossly careless in the way the accused performed some otherwise lawful act - Paton v HMA, Lord Justice Clerk Aitchison: '(it) is now necessary to show gross, or wicked, or criminal negligence... to a criminal indifference for consequences.' - Transco Plc v HMA: lack of care forms the mens rea: a complete indifference to the consequences |
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Assault |
- Macdonald: an assault is committed when one person makes an attack upon another with the intention of effecting the immediate bodily injury of that other person or producing the fear of immediate bodily injury in their minds Smart v HMA: actus reus: 'every attack upon the person of another is an assault, whether it is to injure or to not.' |
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What amounts to an attack? |
- no requirement for injury (Macdonald) - Spitting on someone (James Cairn) - Setting a dog on someone (Kay v Allan) - Threatening gestures (Atkinson v HMA) - Pointing a fake weapon at someone (Gilmour v McGlennan) |
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Those entitled to use reasonable force |
- Police officers, prison wardens, asylum attendants, railway servants and ship officers (Brown v Hilson) - Stewards and bouncers (HMA v Harris) - Parents using reasonable force to chastise a child (Guest v Annan) |
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Assault: when can a parent chastise their child? |
- must have parental rights or a right of having charge of the child 1. the nature 2. the duration and the frequency 3. any mental or physical effect 4. the child's age 5. the child's personal characteristics Any other factors the court sees appropriate: Blow to the head, shaking or use of an implement is not justifiable (Criminal Justice (Scotland) Act 2003 s.51) |
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Assault and Sports |
- those who play sports, such as rugby or ice hockey, will allow physical tackling of opponents in the course of play - provided they stick to the rules of the game (Lord Advocate's Reference (No2. of 1992) |
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Attacks producing fear |
- Macdonald: 'Gestures threatening violence so great as to put another in bodily fear, whether accompanied by words of menace or not, constitute assault.' |
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Mens Rea of Assault |
Macdonald: 'evil intention of the essence of assault' - Smart v HMA 1. intend to inflict bodily harm 2. intend to place someone in a state of fear and alarm for their personal safety |
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Roberts v Hamilton |
As long as there was the intent to injure someone, then the intent was transferred to the person actually injured |
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Consent as a defence |
Smart v HMA: consent is not a defence Macdonald v HMA: difference between inflicting pain and intent to injure R v Brown: still probably not a defence |
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Reasonable Restraint as a Defence for Assault |
Marchbank v Annan: police etc. may restrain, but only to an extent which is reasonable |
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Reckless Injury |
Unintentionally but recklessly causing injury to another actus reus: causing injury to another mens rea: recklessness, an utter disregard for consequences W v HMA |
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Reckless endangerment of the lieges |
- endangering the safety of the public (Normand v Robinson) - actus reus is endangerment - mens rea is recklessness |
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Reckless discharge of firearms |
- David Smith and William McNeil |
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Reckless Administration of Harmful substances |
Robert Brown and John Lawson |
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Reckless supply of harmful substances |
Khaliq v HMA |
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Sexual Offences (Scotland) Act 2009 |
- consent parts I & II: 'free agreement' - s15: consent to one form of conduct is not consent for another and consent may be removed at anytime - s16: if the accused thought the victim was consenting, what steps were taken to ascertain consent |
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Sexual Offences: Cases where consent is deemed to be absent- Alcohol |
S13: 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 (Mutebi v HMA) |
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Sexual Offences: Cases where consent is deemed to be absent- threats |
s13 . where B 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 |
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Sexual Offences: Cases where consent is deemed to be absent- detained |
s13 . where B agrees or submits to the conduct because B is unlawfully detained by A (Drummond v HMA) |
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Sexual Offences: Cases where consent is deemed to be absent- deception |
s.13 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. |
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Sexual Offences: Cases where consent is deemed to be absent- impersonation |
s13. where B agrees or submits to the conduct because A induces B to agree by impersonating a person known personally to B |
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Sexual Offences: Cases where consent is deemed to be absent- consent from another party |
s13. where the only expression or indication of agreement of the conduct is from a person other than B |
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Sexual Offences: Cases where consent is deemed to be absent- unconscious |
s.14: a person is incapable of consenting while asleep or unconscious |
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Sexual Offences: evidence |
of there is corroborated evidence to one of the circumstances in s.13, it is not open to the accused to say the complainer was consenting |
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Sexual Offences: free agreement |
If s.13 does not apply, we must look to s.12 to see whether there was free agreement |
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Sexual Offences: reasonable belief in consent |
s.16: the accused may argue that they had a reasonable belief in consent. The evidential burden rests on the accused. |
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Sexual Offences (Scotland) Act 2009: s2 |
it is an offence for a person to penetrate sexually to any extent with any part of his or her body (or indeed anything else) the vagina or anus of another person, wither intending to do so or being reckless as to whether penetration will occur, without the victim's consent - not gender specifc |
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Rape |
s1: if a person (A) with A's penis- 1.without another person (B) consenting and 1. 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 - the offence of rape can only be committed by a man |
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Actus Reus: Rape |
Sexual penetration without B's consent |
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Mens Rea: Rape |
The absence of a reasonable belief that B consents |
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Common Law: Rape |
Sexual Offences (Scotland) Act 2009 expands the definition at common law, which was limited to penile-vaginal penetration (Lord Advocate's Reference (No1. of 2001) |
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Sexual Assault |
s3: actus reus: doing any of the following without B's consent mens rea: the absence of the reasonable belief that B consents 1. intends or recklessly penetrates the vagina, anus or mouth of B 2. intentionally or recklessly touches B sexually 3. engages in a sexual activity intentionally or recklessly 4. intentionally or recklessly ejaculates semen onto B 5. intentionally or recklessly emits urine or saliva onto B sexually |
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Sexual Offences (Scotland) Act 2009: s5 |
Coercing a person into being present during a sexual activity |
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Sexual Offences (Scotland) Act 2009: s6 |
Coercing a person into looking at a sexual image |
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Sexual Offences (Scotland) Act 2009: s7 |
Communicating indecently for sexual gratification, or to humiliate, distress or alarm B |
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Sexual Offences (Scotland) Act 2009: s8 |
Sexual exposure |
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Sexual Offences (Scotland) Act 2009: ss9 and 10 |
Voyeurism - Abusive Behaviour and Sexual Harm (Scotland) Act 2016: creates an offence of 'disclosing, or threatening to disclose, an intimate photograph or film.' |
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Sexual Offences (Scotland) Act 2009: s11 |
Administering a substance for sexual purposes |
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Sexual Offences against a young child |
A child under 13: ss 13-18: rape of a child(s.18); Sexual assault on a young child by penetration (s.19); Sexual assaulton a young child (s.20); Causing a young child to participate in a sexualactivity (s.21); Causing a young child to be present during a sexual activity(s.22); Causing a young child to look at a sexual image (s.23); Communicatingindecently with a young child (s.24); Sexual exposure to a young child (s.25);Voyeurism towards a young child (s.26) |
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Sexual Offences against an older child |
A child 13-16: ss. 28-39: Havingintercourse with an older child (s 28); Engaging in penetrative sexual activitywith or towards an older child (s 29); Engaging in sexual activity with ortowards an older child (s 30); Causing an older child to participate in asexual activity (s 31); Causing an older child to be present during a sexualactivity (s 32); Causing an older child to look at a sexual image (s 33);Communicating indecently with an older child (s 34); Sexual exposure to anolder child (s 35); Voyeurism towards an older child (s 36) |
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Sexual Offences (Scotland) Act 2009: s27 |
not a defence to believe the child is over 13 |
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Sexual Offences (Scotland) Act 2009: s39 |
it is a defence for A to have reasonably believed B to have attained the age of 16 years, subject to exceptions: 1. A cannot use this defence is they have already been charged with a relevant sexual offence 2. cannot just be an assumption |
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Proximity of age defence |
2 years apart for sexual contact- not a defence for penetration |
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Abuse of Trust |
s. 42: sexual abuse of trust Committed where A intentionally engages in sexual activity with or directed towards B, and A is in a position of trust in relation to B (who is under the age of 18) s. 46: sexual abuse of trust of a mentally disordered persons |
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Incest |
Criminal Law (Consolidation) (Scotland) Act 1995 ss1,2,3 Defences: a) did not know and had no reason to suspect a relationship b) did not consent to sexual intercourse with that person c) was validly married to that person s2: offence to have intercourse with a stepchild under the age of 21 or with someone under the age of 16 living in your household- limited to vaginal penetration |
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Shameless Indecency and Public Indecency |
Webster v Dominick |
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Theft: Actus Reus |
1. appropriation 2. moveable, corporeal things 3. belonging to another 4. without consent |
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Theft: Appropriation |
Black v Carmichael: '(T)he essential feature of the physical act necessary to constitute theft is appropriation, by which control and possession of the thing is taken from its owner or custodian. In principle, the removal of the thing does not seem to be necessary.': Lord Justice General Hope - you merely need to do something that is interfering with the possession of the owner |
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Theft: Moveable, Corporeal Things |
- things can be stolen if they can be physically possessed and can be moved from place to place (Alison) - electricity can be stolen - since theft protects an owner's rights of property, stealable things must be owned- and owned by someone other than the accused (Macdonald) |
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Theft: mens rea |
Hume: felenious intention to deprive Black v Carmichael: even if only for a moment |
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Aggravated Thefts |
HMA v Forbes: housebreaking and opening lockfast places are not crimes in themselves: if there is no intent to steal, there is no crime. Crime must be housebreaking with intent to steal. |
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Embezzlement |
Macdonald: ' the felenious appropriation of property which is in the possession of the offender.' - a dishonest failure to account for the property that has been entrusted to the accused - actus reus: entrusted by the owner to the accused (Liang v HMA) - mens rea: dishonesty (Allenby v HMA) |
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Robbery |
- theft achieved by violence (Gordon) - Cromar v HMA: actus reus: sufficient force to be considered a degree of violence - mens rea: the intent to rob |
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Extortion |
Black v Carmichael: the crime consists in using the threat to concuss a person into paying a demand which he intends to resist - unauthorised detention of someone's property for the purpose of obtaining payment for debt |
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Fraud |
- Criminal Procedure (Scotland) Act 1995: 'falsehood, fraud and wilful imposition' - a false pretence made to another person in the knowledge of its falsity and with the intention that that other person should be deceived into acting in a way which they would not otherwise have acted |
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Actus Reus and Mens rea: Fraud |
Actus Reus: 1. the false pretence (Richards v HMA) 2. the practical result (Adcock v Archibald) 3. a casual link between the two (Mather v HMA) Mens Rea: intent, NOT recklessness (Mackenzie v Skeen) |
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Reset |
those who knowingly receive articles taken by theft, robbery, embezzlement, fraud, and feleniously taken them (Macdonald) mens rea: the knowledge that the items have been dishonestly obtained, or being wilfully blind of this fact (Latta v Herron) actus reus: knowingly receiving the stolen goods |
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Malicious Mischief |
1. traditional malicious mischief: Ward v Robertson- damage or destruction to corporeal property, damage can be minor, includes vandalism. 2. wilson malicious mischief: Wilson v HMA- inferring property so as to cause economic loss Mens rea: no malice required (Lord Advocate's Reference (no1. of 2000), recklessness suffices (Ward v Robertson)- ought to have thought about the damage they were doing |
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Vandalism |
Criminal Law (Consolidation) (Scotland) Act 1995 s2: any persons who, without reasonable excuse, wilfully or recklessly destroys or damages property belonging to another. mens rea: willfullness or recklessness |
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Fireraising |
1. wilful fireraising 2. culpable and reckless fireraising Byrne v HMA: 1. wilful fireraising is setting fire to any property intentionally 2. culpable and reckless fireraising is setting fire to any property recklessly- utter disregard for consequences |
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Breach of the Pease |
Smith v Donnelly: what is required to commit the crime is conduct severe enough to cause alarm to the ordinary person and threaten serious disturbance to the community Definition is a unitary one, if the actus reus has been established, so has the mens rea Walls v Brown: actual alarm is required Harris v HMA: the public element as the true nature of the breach of peace |
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Threatening or Abusive Behaviour |
Criminal Justice and Licensing (Scotland) Act 2010 s38 - actus reus: 1. behave in an abusive or threatening matter 2. would likely cause the reasonable person to suffer fear or alarm - mens rea: intended to cause fear or alarm or were reckless as to whether their behaviour would do so. Defence: prove the conduct was reasonable Paterson v Harvie: judged whether the reasonable person would suffer fear and alarm, not the actual complainer |
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The Statutory Offence of Stalking |
Protection from Harassment 1997: civil protection Criminal Justice and Licensing (Scotland) Act 2010 s.39: 1. engages in a course of conduct which causes the person to suffer fear or alarm 2. intended to cause that person to suffer fear and alarm or knew this would be the likely effect. Defence: if they can prove their conduct was reasonable |
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Offensive behaviour and football |
The Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 |
