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Y1 S1 LLB LAW > Criminal Law and evidence > Flashcards

Criminal Law and evidence Flashcards

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1
Q

What are the two steps for omissions liability and the relevant authority?

A
  1. Recognised legal duty to act
  2. Failure to discharge that duty

Bone v HM Advocate

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2
Q

Relevant authority for incitement. what is the justification for incitement being criminalised?

A

Baxter v HM Advocate

There is a risk management satisfaction required, the thought is sufficiently dangerous.

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3
Q

What is the relevant authority for conspiracy and the required elements.

A

Carberry v HM Advocate

the accused agrees to achieve a criminal purpose

It is about the intention to commit a crime.

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4
Q

What are the relevant authorities for attempted crimes? the relevant legal test?

A

Cawthorne v HM Advocate for mens rea being the same as the actual crime.

Preparation to perpetration - HM Advocate v Camerons

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5
Q

The two factors and authority for Art and Part liability?

A
  1. Participation
  2. a common purpose, foreseeability test beyond common purpose

McKinnon v HM Advocate

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6
Q

Actus reus and mens rea for Murder and the relevant authority

A

Drury v HM Advocate

the wilful act of causing the destruction of life

The wicked intention to do so or recklessness.

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7
Q

Wicked Recklessness and the required elements for it for murder and culpable homicide.

A
  1. an intention to injure
  2. in a manner that might have resulted in death, evidencing that the accused.
  3. did not care whether the victim lived or died.

Drury v HM Advocate

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8
Q

Two types of culpable homicide and the relevant authority for both…

A

Any assault which causes death is necessarily at least culpable homicide Bird v HM Advocate, Burns v HM Advocate

Lawful act of culpable homicide Transco Plc v HM Advocate.

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9
Q

The requirements for assault and necessary authority

A

An attack carried out with the necessary intention (Smart v Hm Advocate)
Lord Advocate’s reference no 2 of 1992

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10
Q

Transferred intent authority

A

Connor v Jessop 1988

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11
Q

Reckless Injury’s actus reus and mens rea with relevant authority.

A

causing injury to another, utter disregard for the consequences of actions.

W v HM Advocate 1982

HM Advocate v Harris 1993 - Bouncer case…

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12
Q

Reckless endangerment

A

endangering the public with reckless actions

Normand v Robinson 1994, Reynolds v Lockheart 1977

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13
Q

Three specific reckless injury and endangerment crimes

A
  1. reckless discharge of firearms (Gizzi v Tudhope 1983)
  2. reckless administration of harmful substances (Robert Brown and John Lawson 1842)
  3. reckless supply of harmful substances (Khaliq v HM Advocate 1984)
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14
Q

Malicious Mischief actus reus and mens rea with following authority

A

Damage or destruction to corporeal property to cause economic loss Ward v Robertson (Lord Advocate’s reference no1 of 2000)

HM Advocate v Wilson to cause economic loss

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15
Q

Vandalism actus reus and mens rea

A

To intend to vandalise property

Criminal Law (Consolidation) (s) act 1995 s52

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16
Q

Fireraising actus reus and mens rea and relevant authority

A

setting fire to any property wilful or culpable/reckless

Byrne v HM Advocate 2000

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17
Q

relevant authority and requirements for establishing a Breach of the Peace…

A
  1. Cause alarm to an individual
  2. serious disturbance in the community

No mens rea needed - Smith v Donnelly 2002

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18
Q

Threatening or abusive behaviour relevant authority and requirements

A

Criminal justice and licensing (s) Act 2010 s.38
Patterson v Harvey 2014

behaves in a threatening or abusive manner;

Which would cause the reasonable person to suffer alarm;

which would be likely to cause fear or alarm or weer reckless as to whether their behaviour would do so.

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19
Q

Stalking

A

Criminal Justice and Licensing (s) act 2010 s.39

engages in a course of conduct which causes another person to suffer fear or alarm;

and intended to cause that person fear or alarm or knew or should’ve known that their conduct was likely to have that effect.

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20
Q

Necessary requirements for theft and extortion and relevant authority

A

Black v Carmichael 1992

theft: appropriation of property with the intent to deprive the owner of their property. no mens rea since it will be intentional

Aggravated theft

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21
Q

Distinction of embezzlement compared to theft

A

felonious appropriation of property but requires dishonesty (McCrow v Murphy 2016)

If you are trusted to look after it and appropriate it as your own, then it is embezzlement (HM Advocate v Laing)

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22
Q

Robbery Requirements and authority

A

Theft accomplished by personal violence (Cromar v HM Advocate)

Must have violence leading to theft

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23
Q

Extortion relevant authority and requirements.

A

making threats for money owed to back up your claim for owed finances.(Black v Carmichael 1992)

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24
Q

Fraud’s requirements and authority

A

false pretence which is made to cause a definite practical result (Adcock v Archibald 1925)

Needs:
A false pretence as to future conduct - Richards v HM Advocate 1971

Definite practical result - Adcock v Archibald 1925

A causal link between the two - Mather v HM Advocate 1914

Mens rea - intent, not recklessness (Mackenzie v Keen 1971)

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25
Q

Uttering as Genuine requirements and relevant authorities

A

forging documents unless prohibited by statute,

  1. distinct act of uttering
  2. knowledge that it is fake
  3. made off as genuine
  4. towards the prejudice of one person
  5. writing passes beyond utterer’s control

(John smith 1871)

once the document is exposed, it is a crime (William Jeffery 1842)

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26
Q

Relevant requirements and authority for Reset

A

Reset is where you knowingly take property illegally procured. McDonald 67

Mens rea is knowledge that the items have been dishonestly obtained or being wilful to ignore it. (Lotta v Heron 1967)

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27
Q

What evidence must be corroborated?

A

Crucial facts - Lord Advocates reference no.1 of 2023

Identification evidence - Ralston v HM Advocate 1987

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28
Q

What special means are there of offering corroboration?

A

Special knowledge confessions - only things the accused would know: Manuel

Moorov doctrine - sufficiency of evidence through different accounts to show course of conduct: MR

Distress in sexual offences -
corroboration of sexual offences where distress is seen, doesn’t need to be distress anymore (no.2): Lord Advocate’s Reference (No 1 0f 2023)

Howden doctrine: Howden

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29
Q

How can real evidence be obtained lawfully?

A

With a valid warrant - Hay v HM Advocate 1968

The search is permitted by statute - Misuse of Drugs Act 1971 s 23(2): “If a constable has reasonable grounds to suspect that any person is in possession of a controlled drug in contravention of this Act or of any regulations or orders made thereunder, the constable may (a)search that person, and detain him for the purpose of searching him…”

The search is under circumstances of urgency - HM Advocate v McGuigan 1936

Evidence obtained by consent - Unless the police are using statutory powers to search or have a warrant, they cannot search with only consent. (Criminal Justice (S) Act 2016)

30
Q

How can real evidence be obtained unlawfully?

A

Lawrie v Muir 1950 - Balancing test

Seriousness of the crime

Seriousness of irregularity

Good faith (or trickery)

Circumstances of urgency

31
Q

Admissibility of confessions factors…

A

Fairness test: Brown

Access to legal advice: Cadder; s.32 Criminal Justice (S) Act

Lack of caution: Tongue

Undue pressure: Hawkins

Inducements: Harley

Deliberate eavesdropping: Higgins

32
Q

Fairness test authority for unfairly obtained confessions…

A

Brown v HM Advocate 1966 - has what has taken place been fair or not?

33
Q

Lack of cautioning authority for unfairly obtained confessions…

A

Tonge v HM Advocate 1982, caution must be given once a person is a suspect.

34
Q

Undue pressure authority for unfairly obtained confessions…

A

HM Advocate v Hawkins 2017 - improper forms of bullying or pressure designed to break the will of the suspect or to force from him a confession against his will…

35
Q

Inducements authority for unfairly obtained confessions…

A

threats are not allowed in questioning - Harley v HM Advocate 1996

36
Q

Deliberate eavesdropping authority for unfairly obtained confessions…

A

it might be unfair if the police had engineered the situation: HM Advocate v Higgins 2006

37
Q

What must admissibility of confessional statements be decided upon?

A

Admissibility must be proven on the balance of probabilities by the judge: Platt v HM Advocate 2004.

38
Q

is Character evidence allowed for the witness?

A

Character evidence is only allowed if to indicate that the witness is prone to lying Griffith (unsure on authority)

39
Q

Usually the accused cannot have character evidence led, when is there an exception?

A

Prior Misconduct

Previous convictions of the accused

Sexual history evidence

40
Q

Prior Misconduct by the accused in character evidence authority…

A

Prior misconduct by the accused may corroborate the charge which they face - HM Advocate v Joseph 1929

41
Q

Previous convictions of the accused authority…

A

The general rule: previous convictions shall not “be laid before the jury, nor shall reference be made to them in presence of the jury before the verdict is returned” (Criminal Procedure (Scotland) Act 1995 s 101(1))

Unless impossible to avoid in court s266 and s270 of CPSA

42
Q

Sexual history evidence authority…

A

S 274 and 275 of the CPSA

Very difficult to lead sexual history evidence

XY v HM Advocate - evidence is collateral if it does not “have a reasonably direct bearing on the subject matter of the prosecution.”

43
Q

Definition of hearsay and authority…

A

an assertion other than one made by a person while giving evidence in the proceedings is inadmissible as evidence of any fact asserted” (Morrison v HM Advocate 1990)

44
Q

What is a de recenti statement?

A

A de recenti statement is a statement made by the alleged victim of (normally) a sexual assault shortly after the alleged offence.

it is corroborative on its own and no longer needs stress to be proven.

(Lord Advocate’s reference no 2 and 3 of 2023)

45
Q

Res Gestae statements and the authority…

A

A res gestae statement is one which is ”part of the event” or closely associated with it (O’Hara v Central SMT Co 1941)

46
Q

Evidence of prior identification from the police and it’s authority…

A

If A gives a statement to the police and by the trial cannot remember it, but confirms that they made a true statement, the police officer may give evidence of the contents of the statement: Muldoon v Herron 1970

47
Q

Expert witness test and authority…

A

Kennedy v Cordia

1. Whether the expert evidence will assist the court in its task

2. Whether the expert witness has necessary knowledge & experience

3. Whether the witness is impartial in his or her presentation and assessment of the evidence

4. Whether there is a reliable body of knowledge or experience to underpin the expert’s evidence
48
Q

How much time must you give the court for lodging a defence statement?

A

at least two weeks

Section 70A Criminal Procedure (s) Act 1995.

49
Q

Plea in Mitigation authority

A

Falconer v Jessop, 1975

Where loss can be taken into account (death of family in the crime you committed)

50
Q

Alibi authority…

A

HM Advocate v Laing 1871

Must give time and place to prove you were not there for when the offence took place.

51
Q

Incrimination authority…

A

Flannigan v HM Advocate 2012

Crime not committed by the accused but by another, named if known

52
Q

Accident authority and reasoning

A

Objectively tested - McGregor v HMA 1973

recklessness is not accidental - HM Advocate v Pearson 1967

53
Q

Error of the law authority…

A

Not knowing the law is not a defence…

Clark v Syme 1957 - sheep killed, charged with malicious mischief.

54
Q

Self-Defence test and authority

A

HM Advocate v Doherty 1954

  1. Imminent danger to life or limb
  2. No reasonable opportunity to escape (retreat rule). This rule is distinct to Scots law.
  3. Force used must be proportionate to the attack
55
Q

Third party self-defence authority…

A

HM Advocate v Carson 1964

The defence can be pled where the accused has acted to protect a third party

56
Q

Escape opportunity for self defence authority…

A

McBrearty v HM Advocate

If you can escape where it does not put you in further risk, then you must.

57
Q

When is lethal force permissible in self-defence?

A

Lethal force is permissible only against a threat of death or great bodily harm:

McCluskey v HM Advocate 1959 JC 39

58
Q

Test for Provocation

A
  1. A recognised provocation (physical violence or sexual infidelity).
  2. A loss of self-control resulting from this recognised provocation.
  3. An immediate retaliation to the recognised provocation. (more narrow than imminent in self-defence)
  4. Which results in either: (a) a response which is not grossly disproportionate to the provoking act, in the case of physical violence or (b) a reaction expected of the ordinary person, in the case of sexual infidelity

Copolo v HM Advocate 2017 SCCR 45

59
Q

Provocation of Infidelity/violence requirements (similar)

A
  1. A loss of self-control resulting from this recognised provocation.
  2. An immediate retaliation to the recognised provocation.
  3. Which results in either a reaction expected of the ordinary person (Infidelity)
  4. Which results in a response which is not grossly disproportionate to the provoking act, (in the case of physical violence)
60
Q

Coercion legal test and authority…

A

Thomson v HM Advocate 1983

  1. Immediate threat of death/great bodily harm
  2. The “ordinary person” condition
  3. The accused must not have risked being subject to coercion
61
Q

Diminished responsibility test and authority…

A

CPSA s51B

  1. An abnormality of mind, which caused
  2. Substantial impairment of the ability to determine or control actions

Only for Murder charges.

62
Q

Abnormality of mind concept…

A

Very wide, no psychopathic personality disorder included

Cannot be intoxication - Rogers v HM Advocate 2019

63
Q

Unfitness for trial due to mental disorder authority…

A

CPSA s53F(1)

only for trial, on balance of probabilities.

need medical report - Murphy v HM Advocate 2017

after needs examination of facts.

64
Q

Mental Disorder defence test

A

CPSA s51A

  1. The accused was suffering from a mental disorder
  2. Because of this disorder she was “unable to appreciate the nature or wrongfulness of the conduct” (in the old insanity case law this used to be called “an alienation of reason”)
65
Q

What happens if a mental disorder plea is successful?

A

an Acquittal followed by an examination of facts s55

66
Q

Automatism requirement and authority

A

Ross v HM Advocate

  1. A total alienation of reason (complete loss of self-control)
  2. Caused by an external factor
  3. Which the accused was not “bound to foresee”
67
Q

Intoxication as a defence authority…

A

Not a defence

Brennan v HM Advocate 1977 JC 38

68
Q

The legal test for Unlawful acts which result in culpable homicide

A

Kane v HM Advocate, MacAngus v HMA Advocate

Acts which pose a foreseeable risk of injury, remember thin skull rule can be a factor.

69
Q

Authority for police stumbling across evidence in a lawful search and Authority for not being allowed to fish for evidence…

A

HM Advocate v Hepper - can stumble across evidence

HM Advocate v Turnbull - cannot be fishing for different incriminating evidence

70
Q

Moorov Test requirements and authority

A

MR v HM Advocate - must have similar time, place and circumstances…

the longer the time gaps, the more similar cases must be (S v HM Advocate)

71
Q

Howden doctrine

A

Howden v HM Advocate 1994 SCCR 19

holds that even where there is no evidence identifying the accused as having committed one crime, if that crime is sufficiently similar to another which he has been proved (by corroborated evidence) of committing, he may be convicted of both

Y1 S1 LLB LAW (5 decks)

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