Common Law Flashcards
Assault
State definition, essential elements and powers/disposal options
Definition
A crime at common law, and is every attack directed to take effect physically on the person of another, whether or not actual injury is inflicted.
Essential Elements
- Criminal intent (Mens Rea)
- Criminal action (Actus Rea)
- Actual injury is not a requirement
Power/Disposal
- RPW (non-injury)
- Caution & charge
- Arrest under S1 Criminal Justice (Scotland) Act 2016
Attempt to pervert the course of justice
State definition, essential elements and powers/disposal options
Definition
A crime at common law which can be described as any overt and intentional action calculated to interfere with either the normal investigation of a crime, or the bringing of an offender to justice.
Essential elements
- The action must be overt and intentional
- The action must be calculated to interfere with the normal investigation of a crime, or the bringing of an offender to justice
Power/disposal
- Caution & charge
- Arrest under S1 Criminal Justice (Scotland) Act 2016
Attempted subornation of perjury
State definition, essential elements and powers/disposal options
Definition
Crime at common law, committed by any person who counsels or induces, by any means, a person to give false testimony in judicial proceedings.
Essential elements
- Threats or other inducement must be made to in order to convince another to commit perjury
Power/disposal
- Caution & charge
- Arrest under S1 Criminal Justice (Scotland) Act 2016
Breach of the peace
State definition, essential elements and powers/disposal options
Definition
A crime at common law and is constituted by one or more persons conducting himself or themselves in a riotous or disorderly manner, where such conduct is severe enough to cause alarm to ordinary people and threaten serious disturbance to the community.
Essential elements
- Can be committed by one or more people
- Conduct must be riotous or disorderly
- Conduct must be severe enough to cause alarm and threaten serious disturbance
- Must take place in a public place, or where there is the possibility of said disturbance being overheard or discovered by members of the public
Power/disposal
- RPW
- ASB FPN
- Caution & charge
- Arrest under S1 Criminal Justice (Scotland) Act 2016
Contempt of court
State definition, essential elements and powers/disposal options
Definition
An intentional disrespect or an action against the court’s authority.
Essential elements
- Acting disrespectfully towards the court, either in the courtroom itself, or outwith (i.e. failing to attend when cited)
Power/disposal
- Caution & charge
- Arrest under S1 Criminal Justice (Scotland) Act 2016
Culpable and reckless conduct
State definition, essential elements and powers/disposal options
Definition
Culpable and reckless acts which cause injury to others, or which create a risk of injury.
Essential elements
- The act must be more than a simple accident, however careless
- The reckless behaviour of the accused must show an utter disregard for the consequences
- Need not be an overt act
Power/disposal
- RPW
- Caution & charge
- Arrest under S1 Criminal Justice (Scotland) Act 2016
Culpable and reckless fireraising
State definition, essential elements and powers/disposal options
Definition
Is committed when property is set on fire as a result of a reckless act by the accused.
Essential elements
- Property must be set on fire through a reckless act, not simply accident or simple negligence
- The property must belong to another
Power/disposal
- RPW
- Caution & charge
- Arrest under S1 Criminal Justice (Scotland) Act 2016
Culpable homicide
State definition, essential elements and powers/disposal options
Definition
The killing of a person in circumstances which are neither accidental nor justified, but where the wicked intent to kill or wicked recklessness required for murder is absent.
Essential elements
- The killing of another must be in circumstances which are reckless, but neither accidental nor justified, AND
- The wicked intent (Mens Rea) to kill required for murder is absent
Power/disposal
- Caution & charge
- Arrest under S1 Criminal Justice (Scotland) Act 2016
Extortion
State definition, essential elements and powers/disposal options
Definition
The practice of obtaining benefit through coercion, such as using threat of harm to demand money, property or some advantage from another person. It does not matter whether the demand itself is legitimate (such as for money owed) as the crime can still be committed when illegitimate threats of harm are used.
Essential elements
- The use of threats of harm in order to demand the victim give up money, property, or some other advantage
Power/disposal
- Caution & charge
- Arrest under S1 Criminal Justice (Scotland) Act 2016
Forgery and uttering
State definition, essential elements and powers/disposal options
Definition
A crime at common law, and consists in the making and publishing of a writing feloniously intended to represent and pass for the genuine writing of another person.
Essential elements
- The document tendered is a forged document
- The document was presented with the pretence that it was genuine
- The document was uttered with the intention of disadvantaging another
Power/disposal
- RPW
- Caution & charge
- Arrest under S1 Criminal Justice (Scotland) Act 2016
Fraud
State definition, essential elements and powers/disposal options
Definition
Falsehood - False representation by word of mouth or writing or false conduct
Fraud - Intention to deceive and defraud
Wilful Imposition - What is required is that there is a practical result, i.e. inducing a person to do what they would otherwise have not have done
Essential elements
- Falsehood
- Fraud (intention to deceive)
- Wilful imposition
- There must be some measure of success before the crime is complete
Power/disposal
- RPW
- Caution & charge
- Arrest under S1 Criminal Justice (Scotland) Act 2016
Malicious mischief
State definition, essential elements and powers/disposal options
Definition
A crime at common law constituted by wilful, wanton, and malicious destruction of, or damage to, the property of another.
Essential elements
- There must be malice on the part of the perpetrator
- Damage may be done to the property of another, or financial damage brought about through a criminal act
- Damage must be widespread, or the value of the damage should be considerable (i.e. 10x broken windows is malicious mischief, 1x broken window is vandalism)
Power/disposal
- RPW
- Caution & charge
- Arrest under S1 Criminal Justice (Scotland) Act 2016
Murder
State definition, essential elements and powers/disposal options
Definition
A common law crime and is committed when a person kills another without necessary cause and where there is either:
- An intention to kill, or
- A wilful act so reckless as to show utter disregard for the consequences
Essential elements
- There must exist both wicked intent or recklessness (Mens Rea), as well as the wilful act (Actus Rea)
- The victim has to have died
Power/disposal
- Caution & charge
- Arrest under S1 Criminal Justice (Scotland) Act 2016
Perjury
State definition, essential elements and powers/disposal options
Definition
A crime at common law, committed by any person who wilfully makes a false statement under oath, or affirmation equivalent to oath.
Essential elements
- Falsehood made under oath
- Statement must be false, and known to be false by the accused
- Falsehood must relate to fact, not opinion
- Must be direct and unequivocal
- Must be relevant to the point at issue
Power/disposal
- Caution & charge
- Arrest under S1 Criminal Justice (Scotland) Act 2016
Reset
State definition, essential elements and powers/disposal options
Definition
A crime at common law committed by any person with intent to deprive the owner, to receive and keep property, knowing that it had been appropriated by theft, robbery, embezzlement or fraud.
- Guilty knowledge (including rogue’s bargain)
- Criminal intent
- Receipt of property (does not include proceeds from the sale of stolen goods)
- Property dishonestly obtained
Power disposal
- RPW
- Caution & charge
- Arrest under S1 Criminal Justice (Scotland) Act 2016
