Criminal Cases

Question 1

Hogg v. MacPherson 1928 JC 15

Answer 1

Actus Reus: The forbidden situation
- No voluntary act

The appellant’s furniture van was blown over by a strong gust of wind, causing damage to a nearby street lamp.
The appellant argued that the damage was not due to negligence but was purely accidental, caused by the wind.

Was the appellant liable to pay compensation to the city of Edinburgh for the damage to the lamp?

The court held that the appellant was not liable for the damage.

The breaking of the lamp was not the appellant’s act, either negligent or accidental.

The wind was the sole cause of the damage, and the appellant had not taken any action that led to the lamp breaking.

Question 2

R. v. White [1910] 2 KB 124, CA

Answer 2

Actus Reus: The forbidden situation
- No casual link
Causation
- No casual link

The defendant, White, intentionally put poison into his mother’s evening drink with the aim of killing her.
His mother consumed a few sips of the drink and fell asleep.

Medical evidence revealed that she died of a heart attack, unrelated to the poison.

White had planned to administer multiple doses of poison over time, not a single lethal dose.

Could White be held liable for murder even though his actions did not directly cause the death?

Was his single dose of poison sufficient to constitute an attempt to commit murder?

The court established the ‘but for’ test of causation: White could not be convicted unless it could be shown that ‘but for’ his actions, the victim would not have died.

In this case, the test was not met because the poison did not directly cause the death.

However, the court held that an attempted murder had begun, even if White hadn’t completed his plan.

Therefore, White was convicted of attempted murder.

Question 3

Quinn v. Lees 1994 SCCR 159

Answer 3

Mens rea: the mental element
- A joke: motive

The accused, Lees, set a dog on a group of boys as a joke.
The dog attacked the children, causing harm.
Lees claimed it was merely a jest and not an intentional assault.

Was Lees liable for assault even if the dog’s attack was unintended?
Did Lees’ motive (the joke) affect his criminal intent?

The court held that Lees’ reckless action constituted an assault.
Despite the joke, Lees intended for the dog to attack the children.
The motive did not negate the criminal intent.
Lees was convicted of assault

Question 4

H.M. Advocate v. Kerr & others (1871) 2 Couper 334

Answer 4

Actus Reus: The forbidden situation
- Generally no liability for omissions Exceptions by: statute; contract (employment); family relationships; creation of a dangerous situation?
Art and part liability
- General rule

A group of men engaged in a gang rape.
The accused, George Kerr, was not physically involved in the rape; he stood behind a hedge and watched.
In 1871, this passive observation was deemed insufficient to prove art and part liability.

The court held that mere presence at the scene of the crime did not establish art and part liability.
To be liable, active participation or encouragement was necessary.
George Kerr was not convicted for the gang rape, as his actions did not meet the required standard for art and part liability.

Question 5

Paton v. H.M. Advocate 1936 JC 19

Answer 5

Death caused by reckless driving.
Accused found guilty of culpable homicide.
It is necessary to show gross or criminal negligence amounting to criminal indifference to the consequences.

The Road Traffic Act, 1930 stipulated that driving a motor vehicle recklessly or in a manner dangerous to the public was an offense punishable by imprisonment or fine.
The Road Traffic Act, 1934 allowed the jury, in cases of culpable homicide related to motor car accidents, to find the accused guilty of the statutory offense under the 1930 Act.
The Criminal Appeal (Scotland) Act, 1926 empowered the court to substitute a verdict of a different offense if the jury could have found the accused guilty of that other offense.

Sherriff directed jury to sec. 34 (indictment of culpable homicide), jury retired… recalled after 20 minutes and redirected that in view of sec 37 they couldn’t return a verdict of guilty of a statutory offence in respect that that offence hadn’t been libelled.

The jury didn’t retire again and unanimously found the accused guilty of culpable homicide as libelled.

The appeal court held that there was evidence justifying the jury’s verdict. However, dissenting (Lord Hunter), the court found the second direction by the Sheriff-substitute unsound.

As the jury could have found the appellant guilty of the statutory offense, the court substituted the verdict to guilty of the statutory offense and imposed a lesser penalty.

Sentence quashed, substituteda fine of £50.

Question 6

Thabo Meli v. R [1954] 1 WLR 228

Answer 6

Mens rea: the mental element
- Conduct treated as a continuous act

The case involved four appellants who were convicted of murder.
Their plan was to kill a man and then make it appear as an accident.
They took the victim to a hut, beat him over the head, and believed he was dead.
They subsequently took his body to a cliff and threw it off.

The appellants argued that the actus reus (the physical act) and mens rea (guilty mind) of the crime did not coincide.
Specifically, they claimed that when they formed the intention to kill, the man was still alive. When they threw him off the cliff, they believed he was already dead.

The appellants argued that the actus reus (the physical act) and mens rea (guilty mind) of the crime did not coincide.
Specifically, they claimed that when they formed the intention to kill, the man was still alive. When they threw him off the cliff, they believed he was already dead.

The court upheld their convictions.
Lord Reid emphasized that the acts of beating the victim and throwing him off the cliff constituted one continuing act.
The misapprehension about the victim’s death did not absolve them from legal consequences.
The court rejected the notion that separate acts should be treated independently, as they were all part of the same criminal plan.

In summary, the case established that acts forming part of a pre-conceived plan are considered a connected sequence, and the final blow need not coincide in time with the guilty intent.

Question 7

Roberts v. Hamilton 1989 JC 91

Answer 7

Mens rea: the mental element
- Transferred intent
Assault
- Transferred intent

The charges stemmed from events at a “funeral tea” in Dunfermline following a funeral.

Transferred consent - NOT PART OF SCOTS LAW (ONLY ENGISH)

Two men fighting, woman tired to intervene
She wanted to hit one of the men, and hit the other man
Could she still be guilty of assaulting the unintended victim
Could the mens rea be transferred between party A and B

Transferred Intent: The court had to consider whether the doctrine of transferred intent applies in Scotland in relation to assault.
Reckless Conduct vs. Assault: The defense argued that the evidence showed reckless conduct, not assault.

The appellant’s counsel contended that transferred intent does not apply to assault in Scotland unless there is evidence of evil intent.
The advocate-depute relied on legal authorities and argued that transferred intent could apply.

The court affirmed the sheriff’s finding of guilty of assault against the appellant.
The Lord Justice-General concluded that the appellant was responsible for the assault as one of the men involved was struck, which was a foreseeable event.

Held that transferred intent applies the accused meant to hit someone else, still liable.

Question 8

McDonald v. H.M. Advocate 2007 SCCR 10

Answer 8

Causation
- Victims contribution

The victim was assaulted by the accused and locked in a third-floor flat.
In an attempt to escape, the victim climbed out of a window and fell to their death.
The imprisonment and assault were the direct cause of the victim’s death.
The victim would not have tried to escape if not for the actions of the accused.

The court held that the accused’s actions directly led to the victim’s death.
The chain of causation was not broken by the victim’s subsequent actions.
The imprisonment and assault were integral to the fatal outcome

Question 9

H.M. Advocate v. Fraser & Rollins 1920 JC 60

Answer 9

Art and part liability
- Each liable for ultimate acts reus

The case involved a robbery that resulted in murder.
The accused, Fraser and Rollins, violently assaulted a man while attempting to rob him. The victim died as a consequence of the violence.

The court adopted an objective approach, disregarding the potential consequences of violence.
It was not necessary to prove an intention to kill.
The result of the violence (death) was sufficient for criminal liability.

by Lord Sands that if, in attempting or perpetrating a crime, a person uses serious and reckless violence may be, and if that violence results in death, that person is guilty of murder, although he had no deliberate intention of the accused may be taken into account in determining whether the crime amounts to murder.

Both accused were equally guilty under the principle of “art and part liability”.
When two individuals are conjoined in an enterprise with such consequences, both share responsibility.

Question 10

Gallacher v. H.M. Advocate 1951 JC 38

Answer 10

Art and part liability
- Spontaneous coming together

The case involved a feud between members of a circus and Hamilton residents.
The victim was attacked, and witnesses decided to join in assaulting him.
All parties were charged with murder, despite no prior agreement or common plan.

The central question was whether the accused had been identified as part of a group kicking the deceased in a large, disorderly crowd.
The accused claimed they were not involved in the fatal assault.

The court upheld the convictions for murder.
The spontaneous coming together of the accused for a criminal purpose made them equally responsible.

Question 11

Boyne v. H.M. Advocate 1980 SLT 56

Answer 11

Art and part liability
- Step outside the common plan

The case involved a group of individuals planning robberies through violence and intimidation.
During one incident, one of the accused stepped outside the common plan and stabbed the victim, resulting in the victim’s death.
The critical question was whether the accused knew of the knife prior to the robbery.

The central issue was whether the stabbing was part of the original plan or an unforeseen consequence.
If the accused knew of the knife beforehand, they would have been liable for murder.

The court considered the circumstances and established that carrying a knife was not part of the plan.
Therefore, the stabbing was not foreseeable within the scope of the original criminal enterprise.

Question 12

H.M. Advocate v. The Camerons (1911) 6 Adam 456

Answer 12

Attempted crimes: Where the accused has gone from the preparation of the crime to actual perpetration
- Preparation to perpetration

*Husband and wife pretended they had been robbed
*Intending to commit insurance fraud
- He had staged a robbery but had not yet submitted the insurance form
*jury was directed that its task was to determine whether the couple had advanced from the stage of preparing a fraud to its actual perpetration
*couple = convicted

The court held that the additional evidence did not meet the criteria for a miscarriage of justice.
The appeal was refused.
The case emphasized the court’s function in hearing additional evidence and assessing its impact on the original verdict.

Question 13

Docherty v. Brown 1996 JC 48; 1996 SLT 325

Answer 13

Attempted crimes: Where the accused has gone from the preparation of the crime to actual perpetration
- impossible attempts

The accused, James Docherty, was charged with possession of tablets.
He believed these tablets contained a controlled drug (methylenedioxymethylamphetamine), but they did not actually contain it.
The charge alleged that he intended to supply this controlled drug to others.

The central issue was whether the charge disclosed a crime under Scottish law.
The defense argued that a criminal attempt could not be made if the completed crime was impossible.

The court rejected the argument that non-existent essential facts preclude an attempt to commit a crime.
Intent and positive acts toward executing the purpose are crucial for a relevant charge of an attempt.
Impossibility is irrelevant unless the accused is aware that their attempt is impossible.
The appeal was refused, upholding the conviction for attempted possession with intent to supply a controlled drug.

Question 14

West v. H.M. Advocate 1985 SCCR 248

Answer 14

Loitered outside a shop with weapons for more than 30 minutes, entered the premises with said weapons, with intent to harm, only left when they became aware the police were interested in them, conspiracy to assault and rob - conspiracy (loitering suspiciously with weapons)

*accused charged with conspiracy to assault and robbery
*loitering suspiciously outside a bank, and had a blade and an open razor with them
*charged with conspiracy
*upheld on appeal

Question 15

Baxter v. H.M. Advocate 1997 SCCR 437

Answer 15

Incitement: Inviting another to enter a conspiracy or commit a crime, with the intention that the other will carry out that crime
- it is enough that the accused is serious

The case involved a dispute among various owners of flats in a tenement.
The dispute centered around a scheme for refurbishment and related grants.
The accused, James Patrick Baxter, threatened a complainer obstructing the scheme.
The accused decided to have the complainer killed to remove the obstruction.

The central issue was whether the accused’s actions constituted incitement to murder.
Specifically, whether there was evidence of a definite, final instruction to kill.

The court held that a person could be guilty of incitement without explicitly instructing the other to commit the crime.
The critical factor was whether the accused seriously intended the employee to carry out the murder.
The evidence supported the inference that the accused incited the employee to kill the complainer.
The appeal was refused, and the conviction for incitement to murder was upheld.

Question 16

Drury v. H.M. Advocate 2001 SCCR 583

Answer 16

Murder
- “wicked intent” to kill
Voluntary culpable homicide
- Provocation
Provocation
- provocation from sexual infidelity

convicted of killing his wife with a hammer on discovering her affair with another man.

Held - controversial decision, judge stated that for murder to be established there must be wicked intent or wicked recklessness.

The central issue was whether he had intended to kill the deceased or displayed the necessary degree of wicked recklessness for murder.

The issue for the jury was whether he was guilty of murder or culpable homicide. The defense argued that he should be convicted of culpable homicide only, based on two grounds:

1) Lack of Intent to Kill:
It was contended that Drury did not intend to kill the deceased. The defense claimed that he had not displayed the degree of wicked recklessness required for murder.

2) Provocation: The defense further argued that Drury’s actions were influenced by provocation. They claimed that the sexual infidelity he discovered led to a sudden and overwhelming indignation, affecting his state of mind.

The court upheld the conviction for murder.
The jury found that Drury’s actions met the criteria for murder, despite the absence of a specific intent to kill.
The case clarified the distinction between murder and culpable homicide, emphasizing the requisite intent for each offense

Question 17

H.M. Advocate v. Purcell 2008 JC 131

Answer 17

Murder
- “wicked recklessness”

Motorist knocked down 10 year old boy at pedestrian crossing drove car through red light
*Dangerous driving
*Victim died
*Crown sought to charge accused with murder
*Purcell on wrong side of road overtaking traffic which had correctly stopped at pedestrian crossing
*Appeal court concluded Purcell’s actions not intended - only charged with culpable homicide.

Wicked recklessness for murder requires
1. intention to cause some form of physical injury and
2. wicked disregard of possible consequences (particular high level of disregard)
The central issue was whether reckless driving could found a charge of murder.
The Crown contended that murder could occur without a specific intention to injure.

The court held that the circumstances alleged did not satisfy the requirements for murder.
The accused’s dangerous driving did not libel any wilful act intended to cause injury.
The doctrine of constructive malice was discarded, and the charge did not fit the criteria for murder.
The submission on behalf of the Crown was refused, and the submission on behalf of the accused was upheld.

Question 18

Petto v. H.M. Advocate 2011 SLT 1043

Answer 18

Murder
- foresight of consequences = intent to kill

The appellant killed a man named Arthur Thomas Rawlinson by stabbing him eight times.
On the same day, the appellant and others devised a plan to dispose of Rawlinson’s body.
Co-accused individuals bought petrol canisters, filled them with petrol, and went to the flat.
The appellant and others poured petrol throughout the flat and ignited it, causing an explosion.
The fire spread rapidly, resulting in extensive damage to the building.
A resident, Myra Donachie, died from injuries sustained during the incident.

The central question was whether the appellant’s actions constituted murder or a lesser offense.
The appellant argued that he did not intend to injure anyone and that he was aware people lived on the floor above.

The court upheld the conviction for murder.
The appellant’s actions, including the use of petrol and the resulting explosion, demonstrated a depraved and wicked disposition.
The doctrine of constructive malice applied, and the appellant’s indifference to the safety and life of others led to the murder conviction.

Question 19

H.M. Advocate v. Robertson and Donoghue (1945)

Answer 19

Unlawful act, involuntary culpable homicide
- Take victim as you find him/her

the accused individuals broke into a store and struggled with the elderly shopkeeper. During the struggle, the victim suffered a heart attack and died. It was later discovered that the victim had previous health problems with his heart, which contributed to the heart attack. The court held that the principle of “take the victim as you find them” applied. Therefore, the accused were responsible for the victim’s death, even though the victim’s weak heart condition contributed to the heart attack.

Question 20

Tomney v. H.M. Advocate [2012] HCJAC 138

Answer 20

Lawful act, involuntary culpable homicide

Accused killed his friend by the discharge of a pistol
*Accused, deceased and third party were present in the living room of the accuses home with the gun and some ammunition on the floor
*Ingested alcohol and cannabis
*Accused pick up the gun and exerted pressure on trigger reckless discharge of gun
*Pointing not aiming at deceased
*held to be culpable homicide because the discharge of the gun was culpable and reckless, rather than accidental.

The appellant claimed that he did not intend to kill Ian Langford.
The Crown argued that the charge was properly one of culpable homicide due to either deliberate trigger-pulling or reckless handling of the gun.

The court upheld the conviction for culpable homicide.
The appellant’s actions, whether intentional or reckless, led to the death of Ian Langford.
The doctrine of constructive malice applied, and the appellant’s indifference to safety resulted in culpable homicide.

Question 21

Transco PLC v. H.M. Advocate (No. 1)

Answer 21

Road traffic homicides and corporate homicides
- charge of culpable homicide against a company

A public gas transporter, faced charges related to a gas explosion that resulted in the death of four people in Larkhall. The court held that Transco had “shown a complete and utter disregard for the public.” Although the charges of culpable homicide were dismissed, Transco was later prosecuted for health and safety violations and fined £15 million. This case paved the way for major legislative changes, including the Corporate Manslaughter and Corporate Homicide Act 2007.

Question 22

John Roy 1839 Bell’s Notes 88

Answer 22

Assault
- no intent to cause injury

The accused deliberately broke a window, unaware that a girl was in the area. The broken glass injured the girl’s eye. Although the accused did not intend to hurt the girl and was unaware of her presence, he was acquitted of assault because he did not intend to injure her. The court considered the absence of mens rea (intent) in this case.

Question 23

R v. Brown [1994] 1 AC 212

Answer 23

Assault
- sado-masochism

The House of Lords re-affirmed the conviction of five men for their involvement in consensual, unusually severe sadomasochistic sexual acts over a 10-year period. The court held that consent is not a defense to inflicting actual bodily harm, grievous bodily harm, or wounding under sections 20 and 47 of the Offences Against the Person Act 1861 (OAPA). However, an exception applies to lawful activities such as sports, surgery, and certain sexual acts. The court emphasized that society is entitled to protect itself against a cult of violence, even if the acts are consensual.

Question 24

Smart v. H.M. Advocate 1975 JC 30

Answer 24

Assault
- consent is no defence

The accused, William Smart, was charged with assault. The case is notable because Smart claimed that his victim, Issac Wilkie, had consented to a “square go” (a fight). Smart argued that he could not be charged with assaulting Wilkie or any injuries arising from the fight. However, the court ruled that consent was not a defense against an attack. The court held that if the act is criminal, it cannot lose its criminal character because the victim consented. Smart was found guilty of assault and sentenced to three months’ detention. The court clarified that consent to a “square go” is not a defense to a charge of assault based on that agreed combat.

Question 25

Stewart v. Nisbet 2013 SCL 209

Answer 25

Assault
- error as to consent
Error
- Error as to consent

A police officer was convicted of assault after wrapping Sellotape around a woman’s face, restricting her breathing. Although he claimed she consented to it, the court held that even if she had consented, it would not be a valid defense. The case clarified the concept of reckless conduct and the limits of consent in assault cases.

Question 26

Black v. Carmichael 1992 SLT 897

Answer 26

Theft
- temporary appropriation
Extortion
- demanding payment

The accused, Alan Black and James Green Penrice, were charged with extortion and theft related to wheel clamping on private land. The court held that private wheel clamping constituted extortion and theft. The accused had attached wheel clamps to cars parked in a private car park, immobilizing them, and demanded a release fee of £45. The court clarified that consent to wheel clamping did not serve as a valid defense against charges of extortion and theft.

Question 27

Adcock v. Archibald 1925 JC 58; 1925 SLT 258

Answer 27

Fraud
- Even a small practical result will suffice

The accused, Edward Adcock, tampered with a “pin” on a fellow miner’s hutch to fraudulently represent that the coal contained therein had been worked by him. As a result, he induced his employers to pay him (instead of his fellow miner) for getting the coal. The court held that this constituted an unexceptionable charge of fraud. Although the increase in wage did not exceed the minimum shift-wage, the fraudulent tampering with the pins resulted in a definite practical outcome, justifying the charge of fraud.

Question 28

H.M. Advocate v. Harris 1993 JC 150

Answer 28

Recklessly causing injury, culpable and reckless injury /conduct, reckless endangerment
- assault requires intent, but causing real injury by reckless conduct is also a crime.

Bouncer pushed a female patron down stairs into a street. She was then hit by a car. Previously, only recklessly endangering the public was a crime.

Held: He was guilty of recklessly causing injury as the public element was no longer necessary, it is a criminal offence on its own

The court considered whether the alternative charge of reckless conduct causing injury is relevant and constitutes a crime under the law of Scotland. The respondent raised a preliminary plea regarding the relevancy of the alternative charge, arguing that reckless conduct causing injury should be considered criminal even if not explicitly endangering the public. The court held that the charge of reckless conduct causing injury is indeed a crime under Scottish law, even without specific reference to endangerment of the public. The court found the alternative charge to be relevant and overturned the sheriff’s decision. The case clarified the legal standards for charging reckless conduct causing injury in Scotland, emphasizing the need for a clear and relevant indictment without unnecessary or confusing language.

Question 29

Smith v. Donnelly 2001 SCCR 800

Answer 29

Breach of the peace
- important case- definition given above

Pamela Smith was charged as follows: “On 15 February 1999 on the A814, north gate entrance to HM Naval Base, Clyde, District of Argyll and Bute, you Pamela Smith did conduct yourself in a disorderly manner, lie down on the roadway, disrupt the free flow of traffic, refuse to desist when requested to do so and commit a breach of the peace.”
Smith was protesting against nuclear weapons at the Faslane naval base. She argued that she had engaged in this sort of conduct before, and it appeared to be arbitrary whether she would be arrested for it or not. Article 7 ECHR requires that citizens know what actions will break the law. Therefore, the crime of “breach of the peace” was so vague that prosecuting her for it was contrary to her human rights.

The High Court concluded that “The crime of breach of the peace can be committed in a wide variety of circumstances, and, in many cases, it is a relatively minor crime. It has therefore been said, more than once, that a comprehensive definition which would cover all possible circumstances is neither possible nor desirable.“

“if there is no evidence of actual alarm, the conduct must be “flagrant” if it is to justify a conviction. “Flagrant” is a strong word and the use of that word points to a standard of conduct which would be alarming or seriously disturbing to any reasonable person in the particular circumstances.”

Ms Smith’s appeal was refused. On the bright side, we wouldn’t have the clear(er) definition of breach of the peace without her, so…every cloud, amirite

Question 30

Byrne v. H.M. Advocate (No. 2) 2000 JC 155

Answer 30

Culpable and reckless fire-raising
- leading case on wilful fire-raising

The appellant, Joseph Byrne, faced an indictment for wilful fireraising.
The libel (charge) accused him of intentionally setting fire to a building.
The trial took place before Sheriff A.C.W.A. Eccles and a jury in the sheriff court at Dundee.

The central issue was whether Byrne’s actions constituted culpable and reckless fire-raising.
The court needed to clarify the distinction between these two alternative crimes.
Byrne’s state of mind (mens rea) while committing the offense was crucial.

The court held that the directions regarding culpable and reckless fire-raising were clear enough for the jury.
To convict Byrne of wilful fire-raising, specific intention to set fire to the building had to be demonstrated.
Recklessness (complete disregard for potential dangers) was necessary; mere carelessness was insufficient.
Although the sheriff’s mention of “highly reckless” introduced unnecessary complexity, it favored the appellant.
The inference of intent to set fire to the building could be drawn from Byrne’s conduct and the circumstances.
The appeal was ultimately refused.

Question 31

Cadder v. H.M. Advocate [2010] UKSC 43

Answer 31

Sufficiency of evidence and corroboration
Confessions
- right to an interview with a solicitor

The appellant, Joseph Cadder, was detained by the police on suspicion of serious assault.
He was cautioned in accordance with Sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995.
Despite being informed of his right to have a solicitor informed of his detention, Cadder did not exercise that right and was interviewed without legal representation.
During the interview, he made several admissions that were later used against him in court.
The Scottish statute allowed police constables to detain individuals suspected of offenses punishable by imprisonment for up to six hours. However, detainees had no automatic right of access to a solicitor.

The central issue was whether denying access to legal representation during police interviews violated the detainee’s right to a fair trial under the European Convention on Human Rights (ECHR).
The case considered the tension between the Scottish legal system’s reliance on corroborated evidence and the ECHR’s requirement for access to legal advice during detention.

A unanimous seven-judge panel of the UK Supreme Court allowed the appeal.
The court held that the ECHR mandates that a detained person must have access to a lawyer before being interviewed, unless compelling reasons exist to restrict that right.
The existing Scottish law breached the right to a fair trial under Article 6 of the ECHR.
The decision aligned with the European Court of Human Rights’ ruling in Salduz v. Turkey, emphasizing the importance of legal advice during police custody.

The Cadder ruling fundamentally changed the landscape of criminal procedure in Scotland.
Detainees now have the right to consult with a solicitor before police interviews, ensuring a fair trail and protecting their legal rights.

Question 32

Jones v. Carnegie; Tallents v. Gallacher 2004 JC 136

Answer 32

Breach of the peace
- Five bench decision: interaction of articles 10 and 11 of ECHR.

Jones conducted herself in a disorderly manner by sitting on the south approach roadway to Helensburgh naval base while mechanically fastened to a wheelchair.
She refused to desist when required to do so.
The court upheld Jones’s conviction for breach of the peace.
The test for breach of the peace, based on the standard of conduct genuinely alarming or disturbing to any reasonable person, was deemed sufficiently precise.
The ECHR was not violated.
Jones’s actions disrupted peace and order, justifying the conviction.

Tallents conducted herself in a disorderly manner in the gallery of the Scottish Parliament chambers in Edinburgh.
She tied and bound herself to a railing, sang, and fell to the ground when approached by officials.The court upheld Tallents’s conviction.
Her actions disrupted the orderly proceedings of the Scottish Parliament.
The ECHR rights were not breached.
The law of contempt did not restrict her right to express her views; it merely regulated the manner of expression.

These cases underscore the delicate balance between individual rights and painting public order in Scotland.

Question 33

Harris v. H.M. Advocate 2010 SCCR 15

Answer 33

Breach of the peace
- conduct must affect the public peace

The respondent, Mark Harris, faced an indictment before the Sheriff Court in Dundee.
The charges against him included:
Sending numerous letters and text messages to Nancy Renwick, causing harassment, annoyance, intimidation, and fear.
Conducting himself disorderly and repeatedly communicating with Lisa Renwick, a solicitor, causing alarm and distress.
Persistently using a public electronic communications network to annoy Nancy Renwick.
Sending distressing items to Lisa Renwick.
Fitting a mobile tracking device to Nancy Renwick’s vehicle without her knowledge or consent and following her to various locations.
The case raised questions about the scope of breach of the peace offenses.

The court upheld the relevancy of the charges.
The conduct alleged against Harris fell within the definition of breach of the peace.
The case highlighted the need for a public element in conduct to constitute a breach of the peace.
The decision emphasized that even conduct in an apparently private place could have a public element if it caused annoyance, inconvenience, or needless anxiety.

The ruling clarified the application of breach of the peace offenses and their alignment with human rights principles.
It underscored the importance of considering the impact on public order and peace when assessing such charges.

Question 34

Moorov v. H.M. Advocate 1930 JC 68

Answer 34

Sufficiency of evidence and corroboration
- “Moorov doctrine”, underlying unity of purpose; similar in time, character and circumstance: provide mutual corroboration

Samuel Moorov, a draper and proprietor of Samuel Moorov & Son in Glasgow, was accused of committing seven assaults and nine indecent assaults against his female employees between 1923 and 1930.
The case brought attention to the original view that similar fact evidence was generally inadmissible in court.

Principles of the Moorov Doctrine:
The Moorov doctrine establishes that a series of offenses closely connected in time, character, and circumstance can be grouped together.
Evidence from one witness in a series of separate offenses can corroborate the evidence of a witness in another case.
The doctrine is not restricted to sexual assaults and can apply to other crimes.
The time factor can vary but is usually not more than 3 years apart.
The character of the crime must be the same.

The Moorov doctrine has been used to prove rape by considering a victim’s distressed state as corroboration.
Recent case law emphasizes that distress alone may not be sufficient; it’s up to the jury to decide.

Question 35

Lord Advocate’s Reference (No. 1 of 2023) [2023] HCJAC 40

Answer 35

Sufficiency of evidence and corroboration
- vital case on corroboration

The accused was charged with rape in a trial that took place at Aberdeen High Court in November 2022.
The complainer testified that the accused had invited her and her boyfriend into his flat. Later, when the boyfriend left, the accused attacked and raped her.
The boyfriend returned and witnessed the complainer in a distressed state, crying, shouting, and screaming that she had been raped.

The case raised questions about the corroboration of the complainer’s testimony.
Specifically, the court considered whether evidence from a second witness about the complainer’s distress could corroborate both her lack of consent and her account of what happened.

The High Court overruled the previous decision in Smith v Lees (1997 JC 73).
The unanimous opinion of the seven judges clarified that:
Evidence of the complainer’s distress is capable of corroborating what actually happened to her.
Statements made by the complainer while in a state of distress can also corroborate her account.
This ruling expands the scope of admissible evidence in cases involving sexual assault.

Question 36

Gubinas v. H.M. Advocate [2017] HCJAC 59

Answer 36

Competency and compellability of witnesses, and digital evidence
- jury can make up its own mind about video evidence

The complainer had been at the same nightclub as the appellants.
She left with the second appellant, believing they were going to a party in Fraserburgh.
The complainer was already heavily intoxicated, as evidenced by CCTV images from the nightclub car park.
She was driven to a remote farmhouse where both appellants lived.
Forced to drink more alcohol, she was manifestly drunk.
The complainer was coerced into having sex with both appellants.
The events were partially captured in images taken by the appellants’ mobile phones.
The complainer emphasized that appearances in the images could be deceptive and that she was deprived of her ability to consent.
She also had physical injuries.

The court held that once the provenance of the images was established, they became real evidence that the fact finder could use to establish facts.
The judge’s directions to the jury were generally correct.
The same principles applied to proof of identity of persons as they did to proof of events.
This ruling has implications for evidence and procedure in cases involving video evidence.

Question 37

H.M. Advocate v. Chalmers 1954 JC 66

Answer 37

Confessions
- A voluntary statement is one which is given freely, not in response to pressure and inducement and not elicited by cross-examination

Chalmers was accused of assaulting Peter Stevenson Hastings, senior, in a grinding mill in Larbert, Stirlingshire.
The assault involved striking Hastings on the head with a metal scoop and robbing him of a purse containing money.
Hastings was severely injured and later died in Killearn Hospital.

The case raised questions about the admissibility of statements made by Chalmers during police interrogation.
Specifically, it focused on whether evidence related to Chalmers’ statements and subsequent actions was admissible at trial.

The Full Bench held that the act of Chalmers pointing out the whereabouts of the purse (discovered after his statement) was part of the same transaction as the initial interrogation.
Evidence of Chalmers’ first statement was deemed inadmissible due to unfairness.
Evidence related to his subsequent actions was also inadmissible.
Even if his second statement was accepted as evidence, it was insufficient for conviction.
The conviction was quashed.
The case also highlighted the duty of the police toward individuals under suspicion of committing a crime.

Question 38

Lawrie v. Muir 1950 JC 19

Answer 38

Improperly obtained evidence
- evidence, though given in good faith, was improperly obtained, so should be excluded

Jeanie Gunning operated a dairy shop in Portobello.
She was accused of using 24 bottles belonging to the Edinburgh and Dumfriesshire Dairy Company, Limited, and 7 milk bottles belonging to St Cuthbert’s Co-operative Society, Limited, without proper consent.
The charges were brought under Article 16(a) of the Milk (Control and Maximum Prices) (Great Britain) Order, 1947.
The evidence against her came from two inspectors of a limited company formed to restore milk bottles to their rightful owners.

The case raised questions about the admissibility of evidence obtained by the inspectors.
Specifically, it focused on whether the evidence was improperly obtained due to an illegal search of premises.

A Full Bench held that an irregularity in the method by which evidence was obtained does not necessarily make that evidence inadmissible in a criminal prosecution.
The court considered the nature of the irregularity and the circumstances in which it occurred.
The key factor was whether admitting the evidence would be fair to the accused.
In this case, the inspectors had illegally obtained entry into the premises by misrepresentation.
Their evidence was deemed inadmissible, and the conviction was quashed.

Underscores the importance of balancing civil liberties with the need for justice in criminal proceedings.

Question 39

Davie v. Edinburgh Magistrates 1953 SC 34

Answer 39

Opinion evidence and expert evidence
- expert’s role is to provide information on matters outwith normal experience.

The case involved damage to neighboring properties caused by blasting operations during sewer construction.
The pursuer (plaintiff) argued that the explosions from the blasting had caused damage to their houses.
The defenders (respondents) brought in three expert witnesses, but they did not all agree on the cause of the explosions.
The central issue was the weight to be given to the evidence provided by these expert witnesses.

Lord President Cooper emphasized that the duty of expert witnesses is to provide the court with scientific criteria for assessing the accuracy of their conclusions.
Expert witnesses should only offer opinions based on established facts presented in court.
They should not dictate how the trier of fact (judge or jury) assesses the evidence.
The weight assigned to expert testimony is solely the responsibility of the judge (in civil or summary criminal proceedings) or the jury (in solemn criminal proceedings).

Expert witnesses may rely on extracts from literature while giving testimony.
However, the remainder of texts or journals they refer to is not admissible and cannot be used to challenge their opinion.
This prevents false claims of credentials that could affect the reliability of expert testimony.

Clarified the role of expert witnesses, emphasising their duty to provide scientific criteria whole avoiding interference with the trier of fact’s independent judgement.

Question 40

Sweet v Parsley [1970] AC 132

Answer 40

The appellant, Stephanie Sweet (S), was a sub-tenant of a farmhouse, where cannabis resin was found. S no longer lived in the house and had let out several rooms to tenants. She did retain a room but only returned occasionally to collect letters and rent. The appellant was charged and convicted under Section 5(b) of the Dangerous Drugs Act 1965 (1965 Act) with

“being concerned in the management of premises used for the purpose of smoking cannabis resin.”

Issue
Section 5(b) of the 1965 Act makes no reference to the mens rea required for the offence. The issues in question for the appeal court were (1) whether Section 5(b) created an absolute offence and (2) if not, what was the requisite mens rea for the offence. The appellant, S, appealed against her conviction, claiming that Section 5(b) required the mens rea of knowledge of the prohibited purposes which the farmhouse was being used for. While S accepted that the premises had been used for smoking cannabis resin, she had no knowledge of this use.

Decision / Outcome
Section 5(b) of the 1965 Act did not create an absolute offence. Unless it is the clear intention of Parliament that an offence is an absolute or regulatory offence (imposing strict liability), the presumption of mens rea prevails for ‘true’ crime offences. The words ‘being concerned in the management’ under Section 5(b) had to be read as importing a mens rea of knowledge as to the use of the premises for the prohibited purpose, therefore the offence was a ‘true crime,’ not a regulatory crime. The conviction was therefore quashed, as S, did not have the requisite mens rea for the offence under Section 5(b) of the 1965 Act.

Question 41

Owens v. H.M. Advocate 1946 JC 119; 1946 SLT 227

Answer 41

Error
- error must be genuine and reasonable

The appellant faced charges of murder after assaulting William Falconer with a knife. The central issue revolved around the self-defense plea.

The conviction for murder was quashed.
The appellant was convicted of culpable homicide instead.

The case underscores the importance of understanding self-defence principles and the reasonable belief of imminent danger in criminal proceedings.

Question 42

Thomson v. H.M. Advocate 1983 JC 69; 1983 SLT 682

Answer 42

Coercion
- Hume’s 4 criteria
Provocation
- immediate retaliation

Accused was convicted of armed robbery for having driven the “getaway” van.

He claimed that he was forced to participate, since he was threatened with a gun and indeed injured on the hand.

The trial judge left the issue of coercion to be determined by the jury, directing them in accordance with Hume’s criteria, that there had to be an immediate danger of death or great bodily harm and an inability to resist the threats of violence.

The plea is easier to substantiate if the accused alleging coercion can show that she played a backward and inferior part in the perpetration of the crime, and notified the police and returned any stolen goods as soon as it was safe to do so.

Thomson appealed on the basis that threats of future harm ought to count as coercion, and averred that the trial judge had misdirected the jury in allowing them to consider only immediate threats.

However, the appeal court reaffirmed the requirement of the immediacy of the threats

Question 43

Brennan v. H.M. Advocate 1977 JC 38

Answer 43

Intoxication (voluntary)
- voluntary intoxication: no defence

Accused was found guilty of murdering his father by stabbing him repeatedly. This was despite the fact that he had voluntarily consumed between 20 and 25 pints of beer, a glass of sherry and a quantity of LSD before he did so.
*No mental illness
*Court held against him - convicted of murder

The appellant faced charges of murder after assaulting his father with a knife. The central issue revolved around the self-defense plea.

The appeal was refused, and the conviction was upheld.
The court distinguished Scottish law from English law regarding self-induced intoxication as a defense to murder charges.
The requirements for the defense of insanity and diminished responsibility in Scottish law were clarified

Question 44

Ross v. H.M. Advocate 1991 JC 210

Answer 44

Automatism (involuntary intoxication)
- defence recognised

Established that the relevant judicial outcome of an accepted defence of automatism = accused’s charges dropped = AcquittaloComplete bench of judges held: Successful establishment of the Defence of automatism = accused cannot be said to have the requiste mens rea = acquittal ought to ensue.Lord Justice General Hope (218) stated that defence would apply where an external factor intervenes with a person’s conduct provided that:1. ‘The external factor must not be self induced 1. Must be one which the accused was not bound to foresee, 2. Must have resulted in a total alienation of reason amounting to a complete absence of self control’ (218)Ross v HMA changed the law in relation to the qualifications of the special defence/acquittals expressed in the case of HMA v Cunningham (1963) JC 80. In Cunningham the High Court Justiciary Appeal court held that an accused who commits a crime ought only to be acquitted if they could successfully plead the defence of insanity (347 Clyde LJG) (aka Mental disorder). Reasoning: Bar in relation to defences ought to be high due to concerns over public safety/wellbeing. Now, The Criminal Procedure (Scotland) Act 1995 s 51A(1) governs defence of mental disorder which also affirms that proof of such = acquittal (but likely detention in hospital s57(2). Thus acquittal = Mental disorder established or successful defence of automatism. Defence only applicable in regards to External factors which fulfil all the rules in Ross v HMA and Sorley v HMA.

Question 45

R. v. Dudley and Stephens (1884) 14 QBD 273

Answer 45

Necessity
- no defence to murder

The incident occurred after a shipwreck when the two defendants and a young boy (between the ages of seventeen and eighteen) were stranded in an open boat at sea following a storm.
The boat drifted in the ocean and was considered to be more than one thousand miles from land.
After seven days without food and five without water, one of the defendants suggested drawing lots to decide who would be sacrificed to provide food for the remaining two.
Subsequently, the defendants colluded to kill the boy so that they could survive.
On the twentieth day, one of the defendants killed the boy, and both defendants consumed his flesh for the following four days until rescue.
The central issue in this case was whether there was any justification for killing the boy to ensure the survival of the defendants. Specifically, the question was whether the defendants could plead that the killing was necessary and thereby give rise to a defense to murder.
The decision reached by the court was that the defense of necessity was not available in this context. It is not possible to justify the killing of one individual to save the life of another based on necessity. Although this judgment is generally accepted and followed, it implies that the unavailability of the defense may have resulted from the collusion between the defendants

Question 46

Moss v. Howdle 1997 SCCR 215

Answer 46

Necessity
- danger of death or great bodily harm

On October 31, 1995, the appellant, Mr. Roland Maurice Moss, was driving his car on the A74 (M) Glasgow to Carlisle road.
Moss was driving at an excessive speed of 101.70 mph in a 70 mph zone in an attempt to reach a service area quickly.
He was convicted and fined £100, but he was not disqualified from driving by the sheriff.
Moss appealed his conviction on the grounds of necessity, arguing that Scots law recognizes necessity as a defense to charges of this nature.

The central issue was whether the defense of necessity applies in the case of Mr. Moss’s excessive speeding based on a passenger’s alleged medical emergency.
The court considered the historical caution in Scots law regarding the acceptance of such defenses.
It also examined the distinction between duress and necessity in English law.

The court held that the defense of necessity does not apply to Mr. Moss’s case.
Mr. Moss had a real choice and was not constrained to commit the offense.
The sheriff was correct in rejecting the defense of necessity and finding Mr. Moss guilty.
The court emphasized that the defense of necessity requires that the accused was compelled by immediate danger of death or great bodily harm, and the act must be truly involuntary.

Question 47

H.M. Advocate v. Anderson (2006, unreported)

Answer 47

Necessity in a murder case
Accused was charged, inter alia , with murder by having driven his car at, and over, the victim.
*The trial judge, Lord Carloway, directed the jury that necessity is “a complete defence to the charges of murder, culpable homicide and assault”, and that a person is “entitled . . . to use reasonable means to escape from a life-threatening or serious injury-threatening situation, even if he knows that what he has to do to escape might cause serious injury or even potentially death to . . . someone.”
*Trying to escape from riot, drove and killed someone. Court said yes

Mr Anderson was charged with murder by running someone over with his car, there had been a fight with youths and thought if him and his son didn’t drive away, they would be killed by these youths. The only way to escape was to run someone over but the person was a third party. Mr Anderson was acquitted.

Question 48

H.M. Advocate v. Doherty 1954 JC 169

Answer 48

Self-defence
- must be no alternative, reasonable force, only

The accused, Patrick Doherty, faced an indictment in the High Court of Justiciary.
The indictment alleged that Doherty, along with others, broke into premises and stole various items.
During the incident, Doherty assaulted Ronald Smith Cairns with a bayonet, resulting in severe injuries that led to Cairns’ death.
Doherty pleaded self-defense as a special defense.

Doherty had been attacked by a man with a hammer. One of his friends handed him a bayonet, which he used to stab the man attacking him, which killed him.
Doherty argued that his actions were in self-defence, but this was rejected, and he was convicted.
In this case, there had been a means of escape available to Doherty, so he ought to have escaped rather than stabbed his attacker.

Question 49

Fenning v. H.M. Advocate 1985 JC 76

Answer 49

Self-defence
- no cruel excess of violence

*accused was charged with murdering a man by the name of Paterson by hitting him repeatedly with an air-rifle and striking his head against a stone.
*He pled self-defence, alleging that the deceased had threatened him with a knife.
*According to the statement Fenning gave the police, the two men had gone on a fishing trip, in the course of which Paterson had revealed that he suspected his wife of having an affair with Fenning, and that he was going to “do” (i.e. assault) him.
*The trial judge had pointed out to the jury that in considering the defence they had to be satisfied that there had been no cruel excess of violence on the accused’s part.
*The jury convicted Fenning of murder, presumably on the basis that his repeated blows constituted a “cruel excess”

Question 50

Owens v. H.M. Advocate 1946 JC 11

Answer 50

Self-defence
- error must be genuine and reasonable

The appellant, Hugh Owens, was charged with murder.
The incident occurred on December 16, 1945, in a room occupied by William Falconer at 70 Shamrock Street, Glasgow.
Owens lodged a special defense of self-defense.

Owens was tried before Lord Mackay and a jury.
The jury unanimously found him guilty of murder.

The trial judge’s directions on self-defense were inadequate.
The jury needed to be satisfied that Owens believed he was in imminent danger and held that belief on reasonable grounds.
However, the direction given did not fully convey this essential element of self-defense.

The onus of proving a special defense lies with the Crown throughout the trial.
The Crown must demonstrate that the fatal act was the accused’s deliberate action or committed with reckless disregard.
The panel (accused) is not bound to provide complete legal proof for self-defense.
The panel’s uncorroborated testimony may introduce reasonable doubt that the Crown must exclude.

Due to the misdirection on self-defense, the conviction was quashed.
Owens’ belief in imminent danger, even if mistaken, was crucial for self-defense.
The jury should have been properly directed on this aspect.

Question 51

Gillon v. H.M. Advocate 2007 JC 24

Answer 51

Provocation
- different test if not sexual infidelity

Accused involved in fight, continued hitting victim with spade long after he ceased to pose threat. Court reaffirmed provocation requirement following Drury, and held this was not proportionate

Gillon and the victim had been drinking together in bars the previous evening.
The victim chased Gillon, who then struck him repeatedly with a spade.
The blows were targeted and delivered with maximum force, causing the victim’s death.

Gillon was found guilty of murder by a majority verdict.
He was also convicted on other charges related to drug offenses.
The trial judge sentenced Gillon to life imprisonment, with a punishment part of 14 years set later.

The defense sought a verdict of culpable homicide based on provocation.
However, the targeted nature of the blows and the severity of the injuries led to the murder conviction.

Question 52

Donnelly v. H.M. Advocate [2017] HCJAC 7

Answer 52

Provocation
- Where the accused responded to an attack on a third party

Appellant was convicted of murder by repeatedly striking the deceased with a knife. At trial he had lodged a notice of self-defence that he had acted under reasonable apprehension that the deceased was about to attack his friend CF with a bottle. Self-defence was not presented to explain the actual use of the knife as opposed to its presentation, and the Appeal Court indicated that this was not a special defence of self-defence at all. The defence position was that the knife had been presented in apprehension of an attack but the killing was accidental. CCTV footage showed the appellant approach the deceased, who was speaking to CF and holding a bottle by his side, and stab him twice in the chest, though a young witness stated that the deceased had moved towards the appellant. CF said that after they left the locus he had asked the appellant why he had done it and he replied: “I thought he was going to hit you with a bottle.” The appellant’s evidence was that the deceased had been angry and threatening towards CF. The appellant produced a knife, the deceased turned and swung at him with the bottle and he put his hands up to ward off the blow and must have struck him with the knife. He did not explain the stab wounds.

In response to the trial judge, defence counsel confirmed he did not wish to amend the terms of the self-defence; the defence to the stabbing was not self-defence but accident. The trial judge allowed the issue of provocation towards the appellant to go to the jury.

The focus of the appeal was whether provocation could arise from the acts of the deceased towards CF, a third party, or was restricted to where an accused had been assaulted and subjected to substantial provocation. Drury v HM Advocate 2001 SLT 1013 had accepted that provocation could arise where the accused discovered sexual infidelity by a partner. After considering a number of cases dating back to Hume, the court was wary of extending the definition of provocation and the appeal against conviction was refused.

An appeal against the punishment part of the sentence, set at 20 years, was also unsuccessful. Although the incident had not been premeditated, the appellant had been armed with a knife and had a significant record for violence.