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
