Criminal Cases

Front 1

Breach of the peace: Smith (P) v Donnelly 2002 JC 65.

Back 1

FACTS: Theaccused was arrested, she was part of a protest at naval base. She was arrestedand charged with breach of the peace, she argued that the scope of breach of the peace had become so wide, that it breached Art 7 of ECHR – if the act you committedwas not a crime at the time you committed it, you cannot be charged with acriminal offence.

HELD: Criminal law must be clearly defined otherwise people will notknow if they committing offences. In this case, they said although this istrue, it is possible to read breach of the peace if they narrow down to comply with Art7: a robust approachshould be taken to swearing.

Front 2

Breach of the peace: Harris v HM Adv 2010 JC 245.

Back 2

Question of how public does an act need to be to constitute a breach of the peace?

FACTS: An accused was charged with breach of the peace after telling police officers that he knew personal details about them and their families.

HELD: it was not breach of the peace since there was no public element, there was no disturbance to public peace.

Front 3

Breach of the peace: Bowes v McGowan 2010 JC 297.

Back 3

Question of how public does an act need to be to constitute a breach of the peace?

FACTS: A taxi driver made sexually explicit comments to a 14-year-old schoolgirl while she was his sole passenger.

HELD: he had committed a breach of the peace; his conduct was severe enough to cause alarm to ordinary people and the necessary public element was present where the taxi was publicly licensed and there was plainly a realistic risk that the conduct would be discovered.

Front 4

Breach of the peace: Paterson and others v PF Airdrie [2014] HCJAC 87.

Back 4

Question of how public does an act need to be to constitute a breach of the peace?

FACTS: The question under the Criminal Justice and Licensing (Scotland) Act 2010 s.38(1)(b) was not whether a complainer had suffered actual fear or alarm; the subparagraph set an objective test and the requirement thereunder was met if the behaviour was likely to cause a reasonable person to suffer fear or alarm.

HELD: it was no defence that the individual complainer did not suffer fear or alarm.

Front 5

Breach of the peace: Borwick v Urquhart 2003 SCCR 243.

Back 5

Does the wide scope of the offence of breach of the peace offend against human rights principles?

FACTS: B supplied alcohol to underage girls, and filmed one of them when they were drunk and showed this video to another party guest.

HELD: that this was not breach of the peace since it was only the other party guest that was upset by it and it had not caused a disturbance to the community.

Front 6

Breach of the peace: Hatcher v Hamilton 2010 HCJAC 92.

Back 6

Question of how public does an act need to be to constitute a breach of the peace?

FACTS: Over the course of an evening, a husband was alleged to have shouted and sworn at his wife, objecting to her going on a work outing. He was angry and upset because he thought she might have been unfaithful to him ; he questioned her for several hours and refused to allow her to go to bed. All of this happened in the family home; the only other persons in the house were the couple’s two children aged 12 and 15, who were in their respective bedrooms. The wife was upset and called the police.

HELD: The High Court quashed the conviction, holding that the evidence was insufficient in law. There was no public element to what had occurred; it did not threaten serious disturbance to the community; and the sheriff was not entitled to find that it was likely to have caused serious fear and alarm to the children, since there was no evidence that they were even aware of what had happened. Further, the sheriff had been wrong to characterise the children as members of the community or public.

Front 7

Crimes as public wrongs: R v Brown [1994] 1 AC 212.

Back 7

Question of problems that arise with matters related to sexual conduct, are they public or private matters?

FACTS: 5 men engaged in sadomasochistic sexual acts, consenting to the harm which they received. While none of these individuals complained against any of the acts in which they were involved, they were uncovered by an unrelated police investigation. They argued that they could not be convicted under the Offences against the Person Act 1861, as they had in all instances consented to the acts they engaged in.

HELD: The Lords answered this in the negative, holding that consent could not be a defence to offences under sections 20 and 47 of the Offences against the Person Act 1861. This approach has been ruled compatible with respect for private life under article 8 of the ECHR.

Front 8

Balancing liberty and security: R v G [2010] 1 AC 43

Back 8

Question of limiting the scope a crime committed under the Terrorism Act 2000 s 58.

FACTS: Woman caught up and killed in cross fire between ‘Bandana man’ and Gnango.

HELD: that "[i]t is artificial to treat the intention to have an affray as a separate intention from the intention to have a potentially homicidal shooting match.” They also held that "there is no common law rule that precludes conviction of a defendant of being party to a crime of which he was the actual or intended victim and that consequently, under the doctrines of joint enterprise and transferred malice, Gnango was guilty of murder. They also held that it was unnecessary to determine whether Gnango was a principal in the first or second degree, arguing that "the offence is the same offence and the defendant is guilty of it”.

Front 9

Actus Reus - Creation of a dangerous situation: McPhail v Clark 1982 SCCR 395.

Back 9

FACTS: Farmer set fire to some straw, causing smoke to blow onto the road and did nothing about it.

HELD: He was charged with reckless endangerment of the lieges since he was the one responsible for creating the danger. If a person creates a dangerous situation, he has an obligation to rectify it, and if he fails to do so he will be guilty by way of omission.

Front 10

Actus Reus - Creation of a dangerous situation: Mallin v Clark 2002 SCCR 901.

Back 10

FACTS: During a stop and search, the accused was asked "are you carrying any sharps" by the officer but he did not tell him, the officer was then subsequently injured.

HELD: there was no duty on the part of the searchee to disclose or assist the police as this would be a breach of the right to remain silent (however, had the accused instead answered no, this would have been a potential crime).

Front 11

Actus Reus - Creation of a dangerous situation: McCue v Currie 2004 SCCR 2000.

Back 11

FACTS: Accused broke into caravan to steal using a lighter as a light source. He dropped it and the caravan was set on fire.

HELD: Was charged with attempted theft but not wilful fire-raising as it was an accident.

Front 12

Actus Reus - Causation - Factual cause - 'but for' or sine qua non test: Hendry v HM Adv 1987 JC 63.

Back 12

FACTS: Accused assaulted a man who then had a heart attack and died, since he suffered from a heard disease.

HELD: that a causal link could be established between the assault and the heart attack and therefore the accused was found guilty.

Front 13

Actus Reus - Causation - Legal cause - The thin skull rule: Bird v HM Adv 1952 JC 23.

Back 13

FACTS: Bird suspected a woman stole money from him, he followed her, she got into car, he grabbed her to pull her out of the car, she dropped dead. She had an underlying heart condition.

HELD: The assault was Bird grabbing hold of her, 'Any assault followed by death is culpable homicide.’ You have to take your victim as you find them.

Front 14

Actus Reus - Causation - Legal cause - The thin skull rule: R v Blaue [1975] 3 All ER 446.

Back 14

FACTS: The defendant stabbed a woman, penetrating her lung. She refused a blood transfusion since it was against her religious beliefs, and as a result she died.

HELD: that the refusal of a blood transfusion did not break the chain of causation and that the accused was guilt of murder. You have to take your victim as you find them.

Front 15

Actus Reus - Causation - Breaks in legal causation - novus actus interveniens of the victim: Khaliq v HM Adv 1984 JC 23.

Back 15

FACTS: Shopkeepers were charged with supplying glue-sniffing kits to children. Accused tried to argue that since the contents of the kits were legal, this should not be a crime.

HELD: the voluntary acts of the purchaser could not constitute a novus actus interveniens because the shopkeepers knew how the kids intended to use the kits, then this did not break the chain of causation.

Front 16

Actus Reus - Causation - Breaks in legal causation - novus actus interveniens of the victim: Lord Advocate's Reference (No 1 of 1994) 1995 SLT 248

Back 16

FACTS: The deceased had died due to voluntarily ingesting taking amphetamine supplied by the accused.

HELD: the fact that the act was voluntarily, the accused was not relieved from criminal responsibility for the death --> charged with culpable homicide.

Front 17

Actus Reus - Causation - Breaks in legal causation - novus actus interveniens of the victim: MacAngus v HM Adv: Kane v HM Adv 2009 HCJAC 8.

Back 17

FACTS: ingestion of the drug by a person who was not vulnerable and who had previously ingested it; was an autonomous act.

HELD: If the victim's consent is combined with other acts (such as injecting the drug personally) this may constitute an intervening act so as to not hold the supplier liable for reckless injury/culpable homicide. The chain of causation connecting the purchase and supply of the drug to the death of the deceased was broken.

Front 18

Actus Reus - Causation - Breaks in legal causation - novus actus interveniens of the victim: Scott v HMA 2011 HCJAC 110

Back 18

FACTS:

HELD:

Front 19

Actus Reus - Causation - Breaks in legal causation: novus actus interveniens - Medical treatment cases: R v Jordan (1956) 40 Cr App R 152.

Back 19

FACTS: The defendant stabbed the victim. The victim was taken to hospital where he was given anti-biotics and excessive amounts of intravenous liquids. He died of pneumonia 8 days after admission to hospital. At the time of death his wounds were starting to heal.

HELD: The victim died of the medical treatment and not the stab wound. The defendant was not liable for his death.

Generally, courts will not find that negligent medical treatment breaks a causal chain. The only exception is where the treatment is so negligent that the earlier action ceases to be an operative and substantial cause.

Front 20

Actus Reus - Causation - Breaks in legal causation: novus actus interveniens; Medical treatment cases: R v Cheshire [1991] 3 All ER 670.

Back 20

FACTS: The defendant shot a man in the stomach and thigh. The man was taken to hospital where he was operated on and developed breathing difficulties. The hospital gave him a tracheotomy. Several weeks later his wounds were healing and no longer life threatening, however, he continued to have breathing difficulties and died from complications arising from the tracheotomy. The defendant was convicted of murder and appealed.

HELD: His conviction was upheld despite the fact that the wounds were not the operative cause of death. Intervening medical treatment could only be regarded as excluding the responsibility of the defendant if it was so independent of the defendant's act and so potent in causing the death, that the jury regard the defendant's acts as insignificant. Since the defendant had shot the victim this could not be regarded as insignificant.

Front 21

Mens Rea - Objective recklessness - Statutory offences: Allan v Patterson 1980 JC 57.

Back 21

FACTS: Concerned the interpretation of the concept of recklessness in the context of the repealed statutory offence of reckless driving.

HELD: Defined recklessness for purposes of the (now repealed and replaced) offence of reckless driving as conduct that falls 'far below the standard of driving to be expected of a competent and careful driver'.

Front 22

Mens Rea - Objective recklessness - Statutory offences: Gizzi v Tudhope 1983 SLT 214.

Back 22

FACTS: Two men were clay pigeon shooting and there were men working on the sewer behind the tree line. One of these men was hit in the leg, a member of the public was almost hit and when the police came they had to dive for cover.

HELD: The men were convicted of reckless charge of a firearm (using Allan v Pattterson definition of recklessness).

Front 23

Mens Rea - Objective recklessness - Common law offences i.e. indifference to, or 'utter disregard' of, the consequences of one's actions: Cameron v Maguire 1999 JC 63.

Back 23

FACTS: A man shot a rifle across a grassy bank that had a trail.

HELD: He was convicted of reckless discharge of a firearm, as he had an utter disregard of the consequences (the test for recklessness).

Front 24

Mens Rea - Objective recklessness - Common law offences i.e. indifference to, or 'utter disregard' of, the consequences of one's actions: Transco plc v HM Adv 2004 JC 29.

Back 24

FACTS: a public gas transporter was charged with breaking the Health and Safety at Work etc. Act 1974 s.3 and s.33(1) in respect to a gas explosion, which resulted in the death of four people.

HELD: Transco had "shown a complete and utter disregard for the public," The court ruled that it was possible to prosecute for culpable homicide; However, it is possible to convict of culpable homicide only if the court could identify an individual or group of individuals being a directing mind in the company; therefore, the charges of culpable homicide were irrelevant and subsequently dismissed. The company was later prosecuted on the charge of health and safety and fined £15m.

Front 25

Homicide and partial defences - Murder - Wicked recklessness i.e. (i) intention to cause injury and (ii) wicked disregard of or indifference to possible fatal consequences: Halliday v HM Adv 1999 SLT 485.

Back 25

FACTS: 2 brothers convicted of murder but appealed because the judge told the jury that they could consider events before and after the assault. This was because they beat him up badly, congratulated each other and then went back to the body.

HELD: appeal refused and conviction upheld, up to the jury to decide if the acts before and after the act were relevant in determining the brothers’ mental state (they had been wickedly indifferent to the consequences of their actions).

Front 26

Petto v HM Adv 2012 HCJAC 78.

Back 26

FACTS:

HELD:

Front 27

Homicide and partial defences - Murder - Partial Defences to Murder (Voluntary Culpable Homicide) - Diminished responsibility - Abnormality of mind: Galbraith v HM Adv 2002 JC 1.

Back 27

FACTS:

HELD: the defence requires an 'abnormality of mind' that must be recognised by a relevant profession, but that need not amount to a insanity. The new statutory provisions also add further guidance and clarification e.g. recognised mental disorders.

Front 28

Homicide and partial defences - Murder - Partial Defences to Murder (Voluntary Culpable Homicide) - Provocation: Singleton v HM Adv [2011] HCJAC 70.

Back 28

FACTS: The appellant siblings (S and P) appealed against their conviction for murdering X. S, P and X had become involved in an argument which had escalated into violence and S and P had knocked X to the ground in a joint attack. They were witnessed to repeatedly punch, kick and stamp on X as he lay on the ground. There was no direct testimony that either S or P had suffered a loss of self control at any stage. The trial judge directed the jury that the possibility of returning a verdict of culpable homicide was open to them, and further purported to direct them on what provocation was in law but did not give express directions on how that would affect any possible verdict.

HELD: Appeals refused.. (1) Neither S nor P had suffered a miscarriage of justice as there was no evidential basis before the trial court on which a plea of provocation on the part of either could have been founded. The proper course for the trial judge would have been to withdraw that plea from the jury: there was no worthwhile evidence of significant violence being offered by X towards either S or P at any stage, and no worthwhile evidence on which either could have relied to demonstrate a loss of control, which could not be inferred from the mere fact of a sustained and vicious assault. It followed that the attack was out of all proportion to anything that X might previously have done.

Front 29

Homicide and partial defences - Murder - Partial Defences to Murder (Voluntary Culpable Homicide) - Provocation - Provocation by assault: Thomson v HM Adv 1985 SCCR 448. FACTS: An accused person was charged with murder by stabbing his victim repeatedly with a knife (which he had taken the precaution of bringing with him to a meeting) after a trivial assault, which consisted in no more than the victim’s physically attempting to stop him leaving the room where they both were. HELD: There was a gross disproportion between the violence and the retaliation, and the plea of provocation was ruled out.

Back 29

FACTS: Accused charged with murder by stabbing his victim repeatedly with a knife (which he had taken the precaution of bringing with him to a meeting) after a trivial assault, which consisted in no more than the victim’s physically attempting to stop him leaving the room where they both were.

HELD: There was a gross disproportion between the violence and the retaliation, and the plea of provocation was ruled out. Mere words are not enough- If the accused is provoked to lose his/her self-control, then his/her retaliation must be proportionate to the provoking act or at least, not grossly disproportionate.

Front 30

Homicide and partial defences - Murder - Partial Defences to Murder (Voluntary Culpable Homicide) - Provocation - Provocation by assault: Drury v HM Adv 2001 SCCR 583 (leading case on provocation).

Back 30

FACTS: Stuart Drury had been convicted of killing his wife with a hammer on discovering her affair with another man.

HELD: Drury makes clear that the proportionality test does not apply to provocation by infidelity. The test is whether the ordinary person, having been thus provoked, would have acted in the same way. Until further authority emerges, this should be regarded as an objective test that does not have regard to the accused's particular characteristics.

Front 31

HM Adv v Purcell2008 JC 131

Back 31

FACTS:

HELD:

Front 32

Homicide and partial defences - Murder - Partial Defences to Murder (Voluntary Culpable Homicide) - Provocation - Provocation by assault: Gillon v HM Adv 2007 JC 24.

Back 32

FACTS:

HELD: It is clear that there must indeed be a reasonable or proportionate relationship between the accused’s reaction and the victim’s provocative attack. There must not be a gross disproportion between that reaction and the attack, for it is accepted that an equality or fine balance between the two cannot be overlooked for in such situations where there is loss of control.

Front 33

Homicide and partial defences - Murder - Partial Defences to Murder (Voluntary Culpable Homicide) - Provocation - Immediacy of reaction: Thomson v HM Adv 1985 SCCR 448 (above).

Back 33

HELD: Because the provocation defence is meant to target 'heat of the moment' reactions, it requires that the accused's loss of control follow immediately from the provocation.

Front 34

Involuntary Culpable Homicide - Unlawful act culpable homicide - Lawful act culpable homicide: Transco plc v HM Adv (No 1) 2004 JC 29 (above)

Back 34

Provides definition for …

Front 35

Assault and reckless conduct - Assault - Mens Rea (defined as 'evil intent’ i.e. assault cannot be committed recklessly or negligently): Smart v HM Adv 1975 JC 30.

Back 35

Question of whether or not the consent ruled out assault?

FACTS: Smart argued that he should not be charged with assault because the victim had consented to fight him and thus knew of the risks and consequences.

HELD: The Appeal Court said “If there is an attack on the other person and it is done with evil intent, that is, intent to injure and do bodily harm, then…the fact that the person attacked was willing to undergo the risk of that attack does not prevent it from being the crime of assault.” Modern authority suggests that an intention to do something that amounts to an unlawful attack will be sufficient mens rea for assault.

Front 36

Assault and reckless conduct - Assault - Mens Rea - evil intent - assault cannot be committed recklessly or negligently: Lord Advocate's Reference (No. 2 of 1992) 1993 JC 43 (the leading modern authority on the issue of the mens rea for assault)

Back 36

FACTS: the accused had burst into a shop, held out a handgun in front of him, and given the startled assistants a command to hand over the contents of the till. The assistants were alarmed for their own safety. The accused’s story is that he then announced it was a joke and left the premises. At his trial for (inter alia) assault, he submitted that he had no evil intent and it was a practical joke. The judge told the jury to acquit if they believed the accused’s story, since there would indeed be no evil intent.

HELD: The accused’s argument was a claim as to the motive or ulterior intention. This was irrelevant as he had been acting deliberately. Lord-Justice-Clerk Ross thought that his deliberate actions showed he had the necessary intent for assault.

Front 37

Assault and reckless conduct - Non-Intentional Injury and Endangerment - Culpable and reckless discharge of firearms: Cameron v Maguire 1999 JC 63 (above).

Back 37

Culpable and reckless discharge of firearms is at least a species of culpable and reckless endangerment. It is sometimes considered to be a separate offence. Cameron v Maguire 1999 JC 63 (above).

Front 38

Assault and reckless conduct - Non-Intentional Injury and Endangerment -Culpable and reckless injury: HM Adv v Harris 1993 JC 150 (above).

Back 38

Previously, a charge of reckless conduct was only thought to be relevant if it alleged endangerment of the lieges. Now, it is accepted that recklessly causing injury is itself a criminal offence.

Front 39

Assault and reckless conduct - Non-Intentional Injury and Endangerment -Culpable and reckless supply of harmful substances: Khaliq v HM Adv 1984 JC 23 (above).

Back 39

More recently, courts have controversially held that supply may be treated as equivalent to administration. This applies even when the person supplied is an informed and competent adult.

Front 40

Lord Advocate's Reference (No 1 of 2001) 2002 SLT 466.

Back 40

FACTS:

HELD:

Front 41

Sexual offences - Consent and sexual offences (ss 12-15) - Particular definitions (s 13(2)) - Intoxication: R v Bree [2008] QB 131 (English case).

Back 41

FACTS: D had intercourse with V a 19 year old student at Bournemouth University, she claimed she was too drunk to give consent.

HELD: D was held not guilty. V was still capable of consenting to intercourse, even though she had drunk so much she was sick Sir Igor Judge said, “…when someone who has had a lot to drink is in fact consenting to intercourse, then that is what she is doing, consenting: equally, if after taking drink, she is not consenting, then by definition intercourse is taking place without her consent.

Front 42

Sexual offences - Incest. Webster v Dominick 2005 1 JC 65.

Back 42

FACTS:

HELD:

This case essentially abolishes "shameless indecency", and replaces it with a much narrower crime of "public indecency”.

Front 43

Property Offences - Offences of Dishonesty - Theft - Actus reus: Black v Carmichael 1992 SLT 897.

Back 43

FACTS: The accused affixed a notice to a car which had been parked on private property without permission, where that notice indicated that a wheel clamp had been secured the vehicle, and until a “levy on trespass parking” of £45 had been paid.

HELD: wheel clamping amounted to a demand for payment accompanied by the threat that until payment the vehicle would not be released; (threat + demand = attempted extortion/extortion). Thus, this was attempted extortion, and if the levy was paid, extortion. Appropriation of property belong to another, without consent - an intention to deprive temporarily will now suffice

Front 44

Property Offences - Offences of Dishonesty - Theft - Actus reus: Dewar v HM Adv 1945 JC 5.

Back 44

FACTS: A conviction for stealing coffin lids which had been delivered to a crematorium to be burnt, was uppheld on appeal . There was no discussion which addressed the question of who owned these items at the time. The crematorium manager espoused an honest belief that coffins delivered to his premises to be burnt were ownerless scrap, lawfully able to be appropriated by anyone including himself.

HELD: the Appeal Court rejected his defence of error on the grounds that it did not rest on reasonable grounds. Appropriation of property belong to another, without consent - theft traditionally applies only to corporeal, moveable property.

Front 45

Property Offences - Offences of Dishonesty - Theft - Actus reus - Need for dishonesty? : Kane v Friel 1997 SLT 1274.

Back 45

FACTS: A case of alleged theft where the Appeal Court proceeded on the advocate-depute’s concession that the Crown had to prove that any appropriation by the appellant of the goods in question had been dishonest.

HELD: No Scottish authority conclusively shows that any additional requirement of “dishonesty” has to be shown or inferred.

Front 46

Property Offences - Offences of Dishonesty - Housebreaking and opening lockfast places: Adv v Forbes 1994 JC 71.

Back 46

FACTS:

HELD: Housebreaking and opening lockfast places are not crimes in themselves. Rather, they have two functions. First, they are aggravations of theft. Second, they are criminal when committed with intent to steal.

Front 47

Property Offences - Offences of Dishonesty - Fraud - Actus Reus: Requirement of economic loss? Adcock v Archibald 1925 JC 58.

Back 47

FACTS: Employee of a mining company was convicted of fraud. Because of the minimum wage agreement, neither the mining company nor any of its employees made any loss as a result of the accused successful deceit.

HELD: At common law fraud occurs where the accused brings about any practical result by means of a false pretence. A sufficient result, according to Lord Hunter, is to the extent that the person deceived must be induced to do what he otherwise would not have done. In the past there was a requirement of economic loss but now it seems that any ‘practical result’ will suffice.

Front 48

Property Offences - Offences of Destroying or Damaging Property - Malicious mischief - Damaging or destroying another’s property: HM Adv v Wilson 1984 SLT 117.

Back 48

FACTS: 'damage' included shutting off a power station thereby stopping power being produced.

HELD: malicious mischief includes interfering with property so as to cause patrimonial (i.e. economic) loss.

Front 49

Property Offences - Offences of Destroying or Damaging Property - Fire-raising: Byrne v HM Adv 2000 SLT 3.

Back 49

FACTS:

HELD: there are two separate offences of fire- raising: wilful fire-raising and culpable and reckless fire-raising. These are distinguished by the mens rea that they require: intention in the former case; recklessness in the latter.

Front 50

General Defences - Self-Defence/Private Defence - Requirements: HM Adv v Doherty 1954 JC 1.

Back 50

FACTS:

HELD: The requirements for the defence of self defence are Imminent danger, Absence of opportunity to escape or retreat and Proportionality, as set out per Lord Keith.

Front 51

General Defences - Coercion and Necessity - Coercion - Requirements: Thomson v HM Adv 1983 JC 69.

Back 51

FACTS:

HELD: The requirements for the defence of coercion are set out;

(i) Imminent threat of death or serious injury against the accused or a third party

(ii) Threat must have “dominated the mind” of the accused

(iii) Objective test

(iv) No voluntary exposure to the risk of coercion.

Front 52

General Defences - Coercion and Necessity - Requirements: Moss v Howdle 1997 JC 123 & Lord Advocate's Reference (No 1 of 2000) 2001 JC 143

Back 52

FACTS: Both these cases set out the criteria that must be satisfied for the defence of necessity:

(i) Imminent threat of death or serious injury against the accused or a third party

(ii) Threat must have constrained the accused to break the law

(iii) Threat must have “dominated the mind” of the accused

(iv) Objective test

(v) The act must have had a reasonable prospect of removing the danger.

Front 53

General Defences - Coercion and Necessity - Requirements - (iii) Threat must have “dominated the mind” of the accused: Dawson v Dickson 1999 JC 315.

Back 53

FACTS: The accuse was carelessly driving under the influence of alcohol.

HELD: He did not carry out this crime because the danger was so pressing that offending was his only option. He had not, in fact, thought about the danger (which, nonetheless did exist) at all and would have driven regardless. The absence of a (personal) dilemma was fatal to the use of the defence.

Front 54

General Defences - Automatism - Criteria: Ross v HM Adv 1991 JC 210.

Back 54

FACTS: The defendant had been charged with violently attacking others in a public house; others in the bar had slipped LSD and other drugs into his beer without him knowing and there was only a small amount of alcohol he had been drinking.

HELD: he was not responsible for his intoxication which led to the violent actions and was allowed to go free on the premise that he was in a state of non-self-induced automatism.This case sets out the requirements for the defence of automatism:

(i) Alienation of reason (see Cardle v Mulrainey 1992 SLT 1152, which shows if the alienation or loss of control is not total this will rule out the defence and prevent acquittal on that ground).

(ii) Caused by an external factor (see Finegan v Heywood 2000 JC 444, below)

(iii) Not self-induced (see Brennan v HM Adv 1977 JC 38 below)

(iv) Accused not bound to foresee (see Finegan v Heywood 2000 JC 444 above).

Front 55

General Defences - Automatism: Brennan v HM Adv 1977 JC 38 below

Back 55

FACTS: Brennan had been convicted of murdering his father during a state of intoxication.

HELD: Voluntary intoxication, whether by drink or drugs, cannot be used to establish defences of automatism or insanity

Front 56

Auxiliary Defences - Inchoate Offences - Conspiracy - Requirement for more than one party?: Howitt v HM Adv 2000 JC 284.

Back 56

FACTS: Two men were convicted of conspiring to set fire to a house and commit murder. The men were trialled separately. One pled guilty after conspiring had been deleted from the charge. In the other trial, the accused was found guilty of the full conspiracy. This accused said it does not make sense if the other conspirator was not found guilty of conspiring he appealed.

HELD: The Appeal Court did not accept that argument and in deciding accused guilt, the fate of his co-conspirator was irrelevant (reasoning: facts proven in each trial stand alone).

Front 57

Auxiliary Defences - Inchoate Offences - Attempt - Mens rea - Attempt: Cawthorne v HM Adv 1968 JC 32.

Back 57

FACTS: The accused fired a gun into a room but did not intend to hit anyone.

HELD: The court decided killing was not intended but there was wicked recklessness (could be analysed as attempted murder).

(Scots law has departed from the common approach that ‘attempt’ arguably suggests that the mens rea of this offence should be intention to commit the complete offence)

Front 58

Auxiliary Defences - Inchoate Offences - Impossibility in inchoate offences - Attempts: Docherty v Brown 1996 SLT 325.

Back 58

FACTS: The accused had been charged with attempting to possess drugs with intention to supply, contrary to the Misuse of Drugs Act 1971. The appellant had taken possession of some tablets in the mistaken belief that they contained a controlled drug, when they did not in fact do so.

HELD: In such circumstances an attempt charge was relevant (impossible attempts can still be considered attempts).

Front 59

Auxiliary Defences - Art and Part Liability - The common purpose: HM Adv v Kerr (1871) 2 Couper 334.

Back 59

FACTS:

HELD:

The basis of liability is a common purpose to commit a crime. Proof of such a purpose is therefore crucial.

Front 60

Auxiliary Defences - Art and Part Liability - Contribution to the common purpose: HM Adv v Kerr (1871) 2 Couper 334 above.

Back 60

All parties are equally responsible for the intended offence, regardless of their particular contribution. However, there must be some contribution, merely being present at the scene of a crime, or turning up there, is not sufficient.

It is also helpful to distinguish two kinds of contribution that an accused might make to a common purpose. The first is where the accused is merely an accessory to acts carried out by a principal offender. The second is where the accused are all, in reality, principal offenders. This distinction may be important where the accused is charged along with others who are acquitted. Howitt v HM Adv 2000 JC 284 (above).

Front 61

Auxiliary Defences - Art and Part Liability - Going beyond the common purpose - conditions that can hold the other parties to the common purpose liable for such actions art and part?: McKinnon v HM Adv 2003 JC 29.

Back 61

Where there is a common plan, the responsibility of the co-accused is judged objectively. The court firstly determines what crime has been committed and secondly finds all persons who were party to the common plan guilty of that. In homicide, if there is an obvious risk of life being taken - murder. If the act was unforeseeable and goes out-with the common purpose - may be reduced to culpable homicide.

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Auxiliary Defences - Art and Part Liability - Dissociation from the common purpose - Can a person dissociate himself from that common purpose so as to avoid conviction?: MacNeil v HM Adv 1986 SCCR 288.

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FACTS:

HELD:

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What is the Actus Reus of homicide?

Back 63

In Macdonald's classic definition, thisis 'the destruction of life' i.e. 'causing death'. Hence, liability for homicide sometimes turns on whether an accusedmay be said to have caused death.

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What is the objective test for breach of the peace?

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(i) conduct which is severe enough to cause alarm to ordinary people AND (ii) threatens serious disturbance to the community.

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What are the requirements for wicked recklessness?

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(i) intention to cause injury and (ii) wicked disregard of orindifference to possible fatal consequences.

Front 66

What is the mens rea for murder?

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Two kinds of mensrea are sufficient for murder: wicked intent (intention to kill) and wicked recklessness.

Front 67

Paterson and others v PF Airdrie [2014] HCJAC 87

Back 67

FACTS:

HELD:

Front 68

General Defences - Automatism: HMAv Fraser

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FACTS: The defendant claimed that he was having a dream that he was being attacked by an animal and in fact killed his son. He had a history of sleepwalking.

HELD: The court didn’t want to acquit him for murder, but were worried that it would happen again. They acquitted him based on promise that he would only sleep alone, and confine himself so it wouldn’t happen again.

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Voluntary intoxication: Windsorv Chief Const Kent

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FACTS: The accused had been in the waiting room of a hospital drunk, she was moved and dumped on the street. She was then arrested for being drunk on a public highway.

HELD: She could not use voluntary intoxication as a defence; if you’re doing something reckless you have to take responsibility.

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What is automatism?

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An automatic action by a person whose not aware/conscious control overwhat they’re doing. E.g. concussion.

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Situations in which there is a duty to act (i.e. liable for an omission)?

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1. Relatives e.g. if you are a parent, you areunder legal responsibility towards your child. The exact scope of this duty isnot clear.

2. Where you assume responsibility for someone.NB. You cannot be guilty of an omission,you have to say guilty of… by omission.

3. Contract; if you are under contract e.g. a Dr who fails to respond to a medical emergency.

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How is legal cause established?

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The accused cannotbe too remote from the result.

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Legal cause: Where do you draw the line in the chain of causation?

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The line is usually drawn between consequences that are reasonably foreseeable and consequences that are not.

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Actus Reus - Causation - Breaks in legal causation - novus actus interveniens of a third party: CASE R v Pagett.

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FACTS: Man shooting at police officers, he used his pregnant girlfriend to shield himself from the bullets.

HELD: Although the cause of death was the shot from the officer, the court said the man put the woman in the dangerous situation, and imposed liability on the man. This is an example in which a third party can break the chain or arguably the man himself.

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What is strict liability?

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Where a mensrea is not required to be convicted. Sometimes a defence is built in, e.g. a chef may carryaround knives.

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Strict liability: Lockheat vMCV.

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FACTS: A mine was filled with water which became polluted. The water overflowed into the local stream and polluted it. There is a strict liability that companies don’t affect local environment.

HELD: Convicted of statutory offence, although they didn’t knowingly allow the stream to be polluted, polluting local water was a strict liability offence. Position taken is the person involved OUGHT TO KNOW what is going on.

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What is mala prohibita?

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Something that is prohibited for public policy reasons e.g. not wearing a seatbelt. The activity itself may not necessarily be dangerous but it could lead to danger. Strict liability cases are usually mala prohibita sohave a less harsh punishment.

Front 78

What are the two defences which reduce murder to culpable homicide?

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Diminished responsibility and provocation.

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What is the statutory basis for diminished responsibility?

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CriminalProcedure (Scotland) Act 1995 s. 51B (inserted by the Criminal Justice and Licensing(Scotland) Act 2010 s. 168):

"(1) Aperson who would otherwise be convicted of murder is instead to be convicted ofculpable homicide on grounds of diminished responsibility if the person'sability to determine or control conduct for which the person would otherwise beconvicted of murder was, at the time of the conduct, substantially impaired byreason of abnormality of mind."

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Considerations in determining whether theaccused has a valid plea of provocation?

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Did the accused lose their self control? If an ordinary person having been provoked in the same way acted the same way? Scots law traditionally required that provocation had to be an assault. Except in the situation where a husband hears that his wife has committed adultery.

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What is necessary for imposing liability for conspiracy?

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Essential elements= an agreement + a criminal purpose(nothing else is needed for conspiracy). Of evidence of conspiracy is takenfrom other charges that those involved are found guilty of.

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Requirement of being guilty of an attempt?

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To be guilty of an attempt,somebody has to have moved on from preparing the crime to perpetrating thecrime.

Front 83

Auxiliary liability - Attempts - Preparation to perpetration - HM Adv v Camerons 1911 SC (J) 110:

Back 83

FACTS: husband and wife lied topolice that pearl necklace had been stolen and their insurance but had not madefalse claim yet.

HELD: The actions had gone from simply preparingto perpetrating so the accused were convicted of try to commit fraud against theirinsurers.

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Guthrie v Friel 1992SCCR 932.

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FACTS: The accused had been drinking and was going to drink and drive. He was found sleeping in his car at 3am.

HELD: The court said the factors showed that he was preparing to drive but not that he was attempting to drive. It would have been different if further steps had been taken.

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Trial procedure: What is the summary procedure?

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Cases are tried by a judge sitting without a jury.This may be a sheriff or lay Justices of the Peace, who sits with alegally qualified clerk.

Front 86

Trial procedure: What is the solemn procedure(or trial on indictment)?

Back 86

Cases are tried by a judgewith a jury of 15 people, who are the sole judges of fact. Cases may beheard in either the High Court or sheriff court.

Front 87

Factors included for wicked recklessness as a mens rea for murder?

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(i) the accused should have meant to perpetrate some great and outrageous bodily harm

(ii) that harm was such as might well have resulted in death

(iii) the harm showed an absolute or utter indifference as to whether the victim lived or died. (Hume)

Front 88

Cumulative Provocation as a defence for murder?

Back 88

There must be such an incident, sufficiently provoking in itself in the eyes of the law, just before the fatal violence was delivered. Even if there are a series of incidents but no final incident to which the accused responded then no provocation exists in law and the crime will be murder.

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What are the requirements for corporate homicide?

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(i)The organisation must have owed a duty of care to the victim

(ii)There must have been a gross breach of that duty

(iii)The breach must have caused the victim's death

(iv)The breach must have resulted from the way in which the organisation'sactivities were 'managed or organised

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What is the offence of reckless injury?

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Unintentionally but recklessly causing injury to another. There must be a casual link established between between the accused's reckless conduct and the complainer's injury (easily drawn).

Front 91

Reckless injury: Kimmins v Normand1993

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FACTS: Prior to commencing a search for controlled drugs, the officer had asked the appellant whether he was in possession of any needles. He denied that he was but there was an unguarded needle in the appellant's pocket, and an injury was caused to the police officer's hand.

HELD: He was charged with reckless endangerment; there was a sufficient casual connection between the appellant's denial and the resulting injury.

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What is the actus reus of assault?

Back 92

The classic definition of the actus reus of assault is an 'attack' on another. Theword 'attack' paradigmatically suggests a direct use of violence towards thevictim. However, the term is understood broadly so that it also includes bothindirectly causing injury and acts creating fear of injury.

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What is the mens rea for assault?

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The mens rea of assault is classically defined as 'evil intent'. This means thatassault cannot be committed recklessly or negligently.

Front 94

Reasonable Chastisement as a defence for assault?

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Conduct that would otherwise amount to an assault might not be criminal if itis performed by a child's parent or guardian as punishment of that child. Thisdefence is governed by the *Criminal Justice (Scotland) Act 2003, s. 51. This defence cannot be used for:

- Blows to the head

- Shaking

- Use of an implement

Front 95

What is rape according to s 1 of the the Sexual Offences (Scotland) Act 2009?

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Rape is intentional or reckless penile penetration ofthe vagina, anus or mouth of another person without that person’s consent

Front 96

What is sexual assault by penetration (section 2 of the 2009 Act)?

Back 96

Actus reus: (non-penile) penetration [or any penetration?] by A of the vagina or anus of B without B's consent.

Front 97

What is sexual assault (section 3 of the 2009 Act)?

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Any of the following acts done by A without B's consent: (a) sexual penetration of B's vagina, mouth or anus [what types of penetration apply here?] (b) sexual touching (c) other sexual contacts (d) sexually ejaculating semen (e) sexually emitting urine or saliva

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s 4 of the Sexual Offences (Scotland) Act 2009?

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Sexual coercion: A causing B to participate in sexual conduct

- overlap with sexual assault provisions

- interaction with defence of coercio

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s 5 of the Sexual Offences (Scotland) Act 2009?

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Coercing person to be present during sexual activity (section 5)

- scope: 'live' sexual activity

- requirement of presence, no need to prove B watched

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s 6 of the Sexual Offences (Scotland) Act 2009?

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Coercing person to look at sexual image

- scope: sexual images

- image need not be 'real'

- images may relate to sexual activity or genitals (but not breasts?)

- images may relate to A or third person (but not B?)

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s 7 of the Sexual Offences (Scotland) Act 2009?

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Making indecent communication: Two separate offences:

(i) communicating indecently (A to B) (ss (1)and (ii) causing person to see or hear indecent communication (A to C) (ss(2))

- communication 'by whatever means'

- communication can be written or verbal (including sounds)

- must be 'sexual' communication

Front 102

s 8 of the Sexual Offences (Scotland) Act 2009?

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Sexual exposure – also a 'no consent' offence.

- Exposure by A of his (or her) genitals to B

- Intentionally In a sexual manner

- With intention that B will see them

- For the purpose of either (a) obtaining sexual gratification or (b)humiliating, distressing or alarming B

Front 103

s 9 & 10 of the Sexual Offences (Scotland) Act 2009?

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(Voyeurism) - a further 'no consent' offence.

A commits voyeurism:

- (1) where A observes B doing a 'private act' for the purpose of A obtainingsexual gratification, or humiliating, distressing or alarming B;

- (2) where A operates equipment with the intention or enabling A or anotherperson (C) to observe B doing a private act, for the purpose of obtainingsexual gratification (for A or C), or humiliating, distressing or alarming B; - (3) A records B doing a private act with the intention that A or another person(C) will look at an image of B doing the act, for the purpose of obtainingsexual gratification (for A or C) or humiliating, distressing or alarming B

- (4) A installs equipment or constructs or adapts a structure or part of astructure with the intention of enabling A or another person to do any of theabove acts

Front 104

What is a 'private act' in relation to s 9 of the Sexual Offences (Scotland) Act 2009?

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For the purposes of s 9, a person is doing a private actif the person is in a place which in the circumstances would reasonably beexpected to provide privacy, and

- The person's genitals, buttocks or breasts are exposed or covered onlywith underwear

- The person is using a lavatory, or

- The person is doing a sexual act of a kind not ordinarily done in public

Front 105

What was the amendment made to section 9 of the 2009 Act to combat the menace of 'upskirting'and 'downblousing'?

Back 105

It is a criminal offence to look/take a photo of another's genitals/buttocks where these would not otherwise bevisible.

Front 106

What are defences in relation to older children (sexual) offences (s 39 of the 2009 Act)?

Back 106

-Reasonable belief that the child was 16 or older (but not if (i) A hasbeen previously charged by the police with a 'relevant' sexual offenceor (ii) there is a risk of sexual harm order against him) - (Except for offences involving sexual penetration) proximity of age of 2years

Front 107

What are the 2 elements of the actus reus of public indecency?

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(i) indecent conduct e.g. exposure to genitals or sexual intercourse

(ii) the effect of that conduct on the minds of the public (fulfilled if the indecent conduct occurs in public or in private with an unwilling witness and causes public offence or affronts public sensibility.

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What is the actus reus of theft?

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Appropriation of property belong to another, without consent.

Front 109

What is the mens rea for theft?

Back 109

An intention to permanently/temporarily deprive the owner oftheir property.

Front 110

What is extortion?

Back 110

It involves making demands of another, backed bythreats. It is not restricted to making demands of an ‘economic’ nature, nor is itrestricted to threats of violence.

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What is the mens rea for fraud?

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The mens rea of fraud is knowledge of the falsity of the representation, andintention to bring about the practical result.

Front 112

What is reset?

Back 112

Reset involves taking or retaining possession of stolen goods, knowing them tobe stolen, or being ‘privy to the retention’ by a third party of stolen goods.

Front 113

What is the actus reus for reset?

Back 113

Actual possession of stolen property is no longer necessary for the actus reusof reset. Being ‘privy to the retention’ of property by another will suffice.

Front 114

What is the mens rea for reset?

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Notionally, the mens rea of reset is knowledge that the goods were stolen:mere suspicion will not suffice. However, this demanding requirement ismitigated by the rules concerning how such knowledge may be establishedand the concept of wilful blindness.

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What is malicious mischief?

Back 115

intentionally or recklessly damaging or destroying another’s corporealproperty.

Front 116

What are the actus reus and mens rea for malicious mischief?

Back 116

Actus reus: damaging or destroying another’s property.

Mens rea: intention or recklessness.

Front 117

What are the requirements for the defence of self defence?

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(i)Imminent danger (immediate harm)

(ii)Absence of (a reasonable) opportunity to escape or retreat

(iii)Proportionality

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What happens if someone mistakenly self defends themselves because they misjudge a situation?

Back 118

Self-defence may still be available where the accused was mistaken about therelevant circumstances: for example, if the person attacked did not actuallypose any threat. Such mistakes are to be judged by a standard of reasonablebelief.

Front 119

General Defences - Automatism - Requirements:

Back 119

This case shows two requirements of autmatism as a defence:

(i) An alienation of reason, caused by an external factor, will not result in anacquittal where the accused should have foreseen it.

(ii) The alienation of reason must have been caused by a factor external to theaccused.

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What is the test for being unfit for trial?

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The relevant test is that theaccused must be “incapable, by reason of a mental or physical condition, ofparticipating effectively in a trial”. The Criminal Law (Consolidation)(Scotland) Act 1995 sets out criteria to be taken intoaccount in making this assessment.

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What are inchoate offences?

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‘Inchoate offences’ is the general term which is used to refer to three auxiliaryoffences: incitement to commit an offence, conspiracy to commit an offenceand attempt to commit an offence. ‘Inchoate’ means imperfect or incomplete;what is ‘inchoate’ about these offences is that they do not require thecommission of the relevant complete offence.