criminal Flashcards
Fraud
inducing person by false pretences to do soemthing they woudl not otherwise have done
- Use of false pretences as to something MATERIAL
- To bring a practical result (not necessarily just loss)
Tapsell v prentice
Sold rug fro higher price, although this was deemed not MATERIAL in the shopowners decsion to buy the goods.
Strathern v Fogul
Saying sons were going to move in once she had left was not material and was irreleevtnt and just part of bargaining.
Richards v HMA
Made false representation to council over who would live int he house- this was deemed as material and significant in the councils decision
To bring about a practical result (fraud)
McKenzie v HMA
Despite their actions not amounting to anything other than the raising of legal action, this action was enough of a PRACTICAL RSULT
Adcock v Archibald
Worked at coal mine adn had claimed another workers coal was his own. Although he had made no actual gain, the fact that there had been some fault in the administartion process as a result.
Mens rea for Fraud
- Knowledge of falsity of representation
2. intention to bring about practical result
Mackenzie v Skeen
worked in abatoire and responsible fro weighing offle but had done it wrong so company lost out on profit. Charged yet on appeal found there was no fraudulent intent.
- no proof of knowledge as to false pretence
- no proof of intetion as to practical result.
RESET
possessing or beign privy to the retention of stolen goods (derived from theft, robbery or embezzlement)
Is mutually exclusive with theft i.e. cannot be charge with both
Actus reus of reset
actual possession
privy to retention (coniving at)
HMA v Browne
even if property doesn;t come into your physical contact you can still be guilty of reset.
Latta
re will full blindess- charged with possession of stole goods
Smith v Watson
3 men in car. One had stolen the metal goods. ALthough the physical handover to the other two men had not yet actually occured their conviction of reset by being privy to the retention of stolen goods was enough.
Malicious Mischeif (common Law)
Actus- destroying or damaging corperal property belonging to another person (physical)
Mens- intention or recklessness as to damaging or destroying the eproperty
Ward v Robertson
Had trampled on feild- they didn’t know they were causing damage- court held even if deosn’t require proof of intention it requires proof of recklessness (indifference as common law)- the conviction quashed
Wilson
established new catorgory extending physical damage to causing patrimonial (economic loss). Alledegd to have gone into power station and pressed emergency stop button shutting down one or turbines- no electricty for 28 hours causing an economic loss of 150,000. Charged with MM. NO physical damage. said interference casuing them to lose profit this could be a form of MM. No legal principle for this and extending the defence casues it to overlap with othree offences i,e. black v carmichael- what about other things re patrimonial loss- only need to interfere.
Vanadalism (section 52 Criminal law consolidation) act 1995. created originally by s.78 criminal justice (s) act 1980
committed by a person who without reaonable excuse wilfully or recklessly destroys or damage the proeprty belonging to another.
Black v Allan
there are two seperate offence differences;
recklessness- generally cameron v maguire( indifference) with vandalism can apply the statuory defintion (standard falling beloow what would be expectated of standered person in situation)
The avaliability of a ‘reasonable excuse’ defence
Application to patrimonial loss- can’t fall within vandalism
Byrne v HMA
distinguished culpable and reckless firewarsing and willful fire raising.
Accused set fire to paper on floor of room, it spread to bed and to walls.. The intention to dmaage the other items was no there.
wilful require proof of intention- must shhow intetnion to set fire to the relevent property
SElf defence
defend your self or another from unlawful aggression.
Docherty
HAs to be imminent danger to life or limb of accused or third party
resonse has to be necessary- no reaonable oppurtunity to escape or retreat from the situation
response has to be proportionate to the threat
Mc Brearty
accused convicted of murder. Both part of gangs in fights. Victim had chased the accused and had backed him into a corner. Then the accused swiped a knife, which killed him. Grounds for appeal should have said that there was lack of reaonable escape, he said there was none so he was justified. Courts didn;t feel given evidence that the conviction should be quashed. there was the possibility of a reasonabale escape
McCluskey
not interpereted too strictly- it mustn;t be cruelly ecessive leaving room that it can be somewhat excessive.
Accused charged with murder having killed a person in so called self defence. He defended himself from attempted rape. Trial jduge said propertionality required and that killing somone would only be proportionate if it was for a threat of death. On appeal held judges directions were correct and accused shouldn;t be allowed a defence of self defence. Thsi is an out of date case.
‘this was not the same as a situation if a WOMAN would be defending themselves from rape’- distinguishing rape agiansta male and rape against a female
Fenning
there was to be no cruel excess of violence. ground of appeal was that direction from judge was not sufficeint and that it should ahve been mentioned that self defence takes place int he heat of the moment. on appeal high court held this was not necessary, jurys didnlt have to be told about
Moore v Macdougal
in fight with victim . accused trying to make peace, she was punched several times, she pulled out scissors and stabbed he victim,, then convicted of assault, she should have been entitled to self defence. The response on appeal still deemed cruellly excessive.
Mistaken self defence
standerd of REASONABLE BELEIF. owen and leiser
Thomson v HMA (coercion)
- immediate daner of death ro great bodily harm
- accuseds will must have been overborn and overcome by threats, inability to resist violence
- Objective test- such threats would oversome the will/ resolution of an ordinarily connstiuted person of same sex and age of accused
- defence excluded wehre they expoose themself to risk of coercion i.e. through gangs.
This instead of agaisnt unlawful agresors but innocent parties
Objective test in coercion- over come will of an ordinary person. same as with provocation
How objective? do we give the ordinary oerson the characteristic of an accused
Cochrane
accused convicted of assualt and robbery, he sadi the co-accused had threatened to burn his house down, accused was on borderline of being mentally handicapped and easily lead. Sheriff said this was irrelevetn and this was upheld by the appeal court. Might maybe lead to a reduction in sentence.
necessity
threat is from nature or circumstance rather than a party. develoved in moss v hardle re driving and speeding
lord adv ref no 1 of 2000
criteria for necessity - the ttident case there was no imminent threat to them- there was perhaps re a breach of international law.
- an immediate danger of death or bodily harm- judge by resonable beleif standard
threat must have constrained the accused to act outside the law- donnelly - sexually assualted- she could have got the bus.
-must have dominated the emind of the accused- Dawson v Dickson- re off duty fireman who had been out drinking- drove the fire e
- objetive test- sober person of reaonable firmness sharing the characteristics of the actor would have responded as he did.
- actor must have reason to think acts would have potential of removing danger
Cardle v Mulrainey
Had drink spiked with amphetimines yet held that ahd not suffered a total alienation of reason. If he knows what he is doing and knows that what he is doing is wrong then he cannot fit under this crieteria
An internal casue for this alienation may not stand as in Quick (english case)
He went into a state of hyperglycemic but this was his own fault and he should have controlled it.
Kay v Buttorworth
If feel drowsy whicle driving should pull over, this was forseeable
Lord Strachen in Kidd
What is required is some alienation of reason
Brenan
court rejected alienation in regards to self induced intoxication
Lord emeslie said that the question of automitism has nothing to do with insanity in the ordinary sense of the word nor is it a question for the medical opinion- this and the legal opinion are sperate. howvere the millan committee and the SLC in the 2004 report have disgareed with this stance- have reccomended thata the common law test for insanity as a defence be abolished
Mcnaughton rules (still largly applied in Endland and formed the basis of scots law on insanity)
To establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing;
In america
“A person is not responsible for criminal conduct
if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to
appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law
Savage re diminsished responsibility
there must
be aberration or weakness of mind; that there must be some form of mental
unsoundness; that there must be a state of mind which is bordering on, though not
amounting to, insanity; that there must be a mind so affected that responsibility is
diminished from full responsibility to partial responsibility
in galbraith this criteria was held not to need to be read too narrowly and not all need to be met
galbraith
removed the bodering on insanity requirement
kirkwood v hma
difficult with the term ‘dimished responsibility’
The defence of impaired responsibility is somewhat inconsistent with the basic doctrine of
our criminal law that a man, if sane, is responsible for his acts, and, if not sane, is not
responsible.”
finegan
sleepwalking- own fault no automitism, should have forseen consequences much like buttorworth case fe falling asleep at wheel.
s.51 criminal justice and lisensing act refomed law on mental disorders
A person is not criminally responsible for conduct constituting an offence, and is to be acquitted of the offence, if the person was at the time of the conduct unable by reason of mental disorder to appreciate the nature or wrongfulness of the conduct.
cardle (accuseds reason not totally alianated) and kidd (by some menatl defect his reason was overturned and he was rendered unable to control his actions)
S 51A(2) provides that:
] person does not lack criminal responsibility for such conduct if the mental disorder in question consists only of a personality disorder which is characterised solely or principally by abnormally aggressive or seriously irresponsible conduct.
Incitement
it is an offence to incite another to commit a crimei i.e. encouraging
Baxter v HMA
one resident of tenement would not move during renovations, thought they should kill him to get rid, approached employee to kill him, employee disagreed, tried to incite the employee, convicted
Conspiracy
Conspiracy is constituted by the agreement of two or more persons to further or achieve a criminal purpose. A criminal purpose is one that if attempted or achieved by action on the part of an individual would itself constitute a crime. It was the criminality of the purpose and not the result that made the crime a criminal conspiracy. The agreement need not be by an express agreement. It is not a defence that the object would have been impossible to achieve.
Maxwell
bribed liscensing trader, bribed him to do somethign impossible
Coleman
Family feud in housing scheme, created olan to take weapons to the house, involved in crime as he picked up the weapon
Howitt
frauds (acting with co-accused) was acitted but there could still be a charge of conspiracy
Duffy
consipracy to set frie to a house, one charge with murder and fire reasing and other just with firwarsiing
criminal procedure (S) act s.51B
convicted of CH rather than murer if can show was substantially impaired by an abnormality of the mind
moss v hardle
The defence requires to be tested by asking whether the accused could have acted to avoid the peril without breaking the law. M had an alternative course of action open to him, namely to pull into the side of the road to ascertain the nature of his passenger’s distress, which would not have involved committing the offence.
r v howe
coercion is not a defence to murder
Reckless endangerment
creation of a dangerous situation
macphail v clark
set fire to hay. no mitigation- recckless endagerment
mallin v clark
this was about omissionto disclose rather than active denial. if had denied then would have been liable
mccue v currie
duty to remove danger once have created it- dropped lighter in caravan- charge with attempted theft not wilful fireraising as no mens rea
R v miller
fell asleep with lit cigarette- didn;t mitgate issue, even though accidental failure to sort issue was a crime by ommission
r v pittwood
failure to perfrom contractual duties- failed close gate- charged with manslaguhter
but for test (factual cuasation)
sine qua non if for actions would it have occured
r v white
poisoned mother- died heart failure, unrelated no liabilty didn;t satisfy test
hendry v hma
although injuries on old man were minor, he was drunk ect still held o have casual connection
woolin
liabily cause shook baby
legal cause
casues to which legal reesponsibilty can be attributed to no single test but look at proximity and remoteness
bird v hma
take victim as you find them thin skull, handbag convicted murder even thoguh unforseeable
r v blaue
jehovas witness
breaks in legal causation
novus actus intervenious
intrevening acts
r v roberts
lift to gri, sexually assaulted, jumped from car- actions not ‘daft’
r v dear
man sexually abusing daighter, re opened stab wound, suicide note- no requirment for treatment
macdonald v hma
revenge attck, jumped from flat to escape- actions deemed completly reasonable
kaliq lord emeslie
wilful and reckless administration of a dangerous subsatnce to another causing injury or death is a crime at common law in scotland
r v kennady
english position- voluntary act of taking drug alwasy breaks causation
mcangus
charged with unlaful supply of ketamine- one died. contrast with KANE as he actually prepare dand injected drugs into victim who was a consenting adult of a sound mind. court held supply alone not criminal unless reckless. although not applicable in these case discussed following kennedy in some circumsatnces i.e.t hat actions may break chain
r v pagett
used grilfriend as a human sheild from police shots- guilty fo manslaughter as police actions not voluntary but acting in self defence
r v jordon
immediate cause of death after stabbing was the negligent medicla treatment- this broke chain. the stab wound was not the operative reason for death
smith
stabbed with bayonette- contrary to jordon, stab wound the operative reason for death.
Humes ‘dole’
requires a general wicked disposition
mens rea requires a state of mind specifis to a certian crime
actus non facit reum nisi mens sit rea
there can be no guilty action without a guilty mind
treasferred mens rea
roberts v hamilton
mistakenly hit another with pole- transferred mens rea
burn
didn;t aply doctrine re wilful fireraising
palzzo v copeland
motive shouldnt be confused with intent- his motive only to scare the youths
oblique intention
woolin- he did not mean to kill son but by shaking the result was ferseeable with virtual certainty
petto- block of flats on fire. contrast with purcell where was no intetion to harm anyone. in petto the frie was started eliberatly with no appreciation of the VIRTUAL CERTIANTY of the risk
statutory recklessness
allan v patterson
‘falls below the standered expected of a reasonable person in that situation
followed by gizzi v tuphopr- ‘utter disregard of the consequences
alison defintion of mns rea for murder
intneion to kill or utter disregard as to the life of the sufferer, wether he lives or dies.
Mackintich
threw petrol bombs- convicted on basis that recklessness is enough for mens rea 0 stsatutory satdered
black v allan
broken window- again reckless under statory defintion
lord clark aitchison
to show gross or criminall negligence it is necessary to show something amounting to a crimianl indifference
transeco
re gass explosion- held with a complete and utter disregard for the public. harder test than in allan as is of indifference and disregard
quinn v cunnigham
recklessy riding bike and injuring someone. lord clyde reinstate paton - yet described it as ‘ utter disreagrd fro the consequences of the act or recklessnessa s to invoelve and indifference as to the consequences- an OBJECTIVE VIEW
cameron v macguire
re reckless discharge of friearm again objective approach- no discussion as to wether sbjectivly aware of potential dangers but wether the risk of such that he ought to have realised it.
hma v s
not if subjectivly forseeable but if a reapnable person would have
latta
firearms- solictor- charged with possession of stolen goos- willfull blindeness
carr v HMA
broke into church. conviction quashed as court should distinguish between recklessness and carelessness
callow v tilstone
re selling unfit meat- strict laibilty- didn;t matter that he had taken reaonable care
murder defintion macdonald
wilful act causing the destriction of life wetehr intending to kill or displaying such wicked recklessness as to imply a disposition depraved enough to be regardless of the consequences.
this was approved in scott v hma- deemed a ‘classic and well knwon’ defintion
drury
wicked intention mentioned- lrod rodger said this should be determined with regards to motive (similar to humes definition of dole as wicked and mischevious prupose) Could argue insufficient wickedness- courts had oppurtunity to discuss this in gillon
leiser
fletcher– to allow a defence of a mistaken beleif in self defence is to sanction a thoughtless, negligent over-reaction
in england
r v williams
an unreaonable mistake in self defence is grounds for self defence
halliday
following on from reid wher he stole a car and mowed someone down tryign to stop him. In this they kicked man shock hands, showered then ambuladnce
purcell
hit child with car. deemed not murder- drew on case of nivan- fired cannon down the street killing woman- this can significantly narrowed the scope of murder convictions re wicked recklessness- elft ins ame situation as engladn- not good r v hancock- held only possible to convict (concrete block dropped on road) if could show intention to kill or casue grevious bodily harm- maybe we shoudl chang it to intent to assault fear as opposed to jsut grevious bodily harm)
cawthorne
show at people through the door- held to have WR as intetn sufficient to caus egrevious bodily harm
lord cameron in cawthorn told of 3 elements to murder
- proof of death resulting from certain acts (casuastaion - dear-daughter, roberts -car- brid , blaue macdonald- flat, pagett
- acts are willfull acts fo the accused i.e. are voluntary not automoitism
- proof of neccessary criminal intent- established in scotland by deliberate intetion to cause death or nature of acts- did they display WR
ALison on CH
murder which is committed during commission/ attamept to commit a crime … no peril to life to life could have been foreseable.
burns
in voluntary culbable homicide- hits him int he wrong was
macdonald
the amount of recklessness for murder varies with circumsatnce - one blow for a fragile old man or a child may be sufficient- robertson and donoughue
brenan
court rejected that voluntary intoxication accounted to a total alieaion of reason
lawrie
broke into womans house- she died of herat attack-
lord sutherland in HMA v hartley
if you act in such a way that you do not care wether the person live or dies
in england lord sands fraser and rollins
if a person accepts a crime of serious violence althoug his object may not be murder, if it result sin death jury should convict of murder
s.51 B criminal procedure- now inserted into 20120 crimianl procedure act s.168
reduced form murder to CH if control and conduct atthe time was subsatntially impaired by an abnormality of mind - for accused to prove on the balance of probabilities.
HMA v Alexander Dingway
deemed to have weakness of mind resulting in CH , befroe just seen as way of mitigating punishment rther than reduction of a crime
normand v robinson
endangerment of the leiges had a rave.
kimmons
said he didn;t have syringe contrast to malin
donnall
syringe
first called DR
in MUIR
savage
must be a menatl unsoundness
STATE OF MIND BORDERING ON INSANITY
so only pratially accounatble for actions
Galbraith set out 4 criteria from savage- remove need for bodering on insanity
weakness of mind- brow even case where woman in weak mind from visiting a hospital - brown. clinton
]mental unsoundness- mclinton- man mentally unsettled by wifes cheating
mind affected so responisbility diminshed
harris
nightclub bouncer throws girl down satrs hit by car- charge with culbable and reckless injury- doenst matetr that was inherent iin his job that he would bein situations like.
lord Justice clark in carahar- the object of criminal law is not to make a world safe fro criminals to live in
howver since 2010 covers physcopathy- slc said di seriouslly affect social and meatl control
connally
physciatrist showed th perosnality disorder brought on by deprived childhoos- can give evidence but not opinion
scotland for defence
determine and control conduct
englsih defence
applies also to other incapacies such as loss of rational judgement
onyl if the abnormailty explaines the conduct i.e. if it causes or is a sifnificantly contributory factor
burns
fighting in oub
mattison
set fire by boy
sutherland
isaurance fraud- one died
r v kennedy
the acts of the fully informed and resonsible adult will always break the chain of causation
atkinson- same position as in gilmore re toy gun
breaking into service station counted as assault as made threatenign gestures sufficent to cause alarm
constazna
in england no necessary for proximity- this was re phone call- no need to casue real injury
HMAv Phipps
need for evil intent in assault- cannot be committed recklessly - yet fro reckless discgareg of firearsm the result does not need to be forseeable
lord adv ref no 2
fake gun caused fear and alarm motive not to be ocnfused with intent (palazzon) actions were deliberate so consttuted asault . once established evil must prove intent
judeg petit in r v brown when went to ECHR
the protection of private life means the portectin of intimacy and dignity not the promotion of criminal immoralism
provocations for assault
must not be grossly disproportioanate
thomson
verbal aggrevation not enough for assault- headlock was not enough fro murder
shrff gordon in harris
assault is a criminal intent and cannot be committed recklessly or negligently
section 12
defines cosent as free agreement- in englad- agrees by choice and had capacyt and freedom to make choice
in scotland is a positive and coperative model
befreo act consent had ordinary meanig
marr v hma
r v bree
if have consumed acohol bus till able to give consnet- not rape
threats other than violence- s v volxheck
black woman offered sex or criminal offecne - thrat negtaed her consent
deception- flattery
told was neccesay for medical procedure
s60(1)
if a reaonable person would in those circumstances consider the actions to be sexual
