Criminal Law and evidence Flashcards
What are the two steps for omissions liability and the relevant authority?
- Recognised legal duty to act
- Failure to discharge that duty
Bone v HM Advocate
Relevant authority for incitement. what is the justification for incitement being criminalised?
Baxter v HM Advocate
There is a risk management satisfaction required, the thought is sufficiently dangerous.
What is the relevant authority for conspiracy and the required elements.
Carberry v HM Advocate
the accused agrees to achieve a criminal purpose
It is about the intention to commit a crime.
What are the relevant authorities for attempted crimes? the relevant legal test?
Cawthorne v HM Advocate for mens rea being the same as the actual crime.
Preparation to perpetration - HM Advocate v Camerons
The two factors and authority for Art and Part liability?
- Participation
- a common purpose, foreseeability test beyond common purpose
McKinnon v HM Advocate
Actus reus and mens rea for Murder and the relevant authority
Drury v HM Advocate
the wilful act of causing the destruction of life
The wicked intention to do so or recklessness.
Wicked Recklessness and the required elements for it for murder and culpable homicide.
- an intention to injure
- in a manner that might have resulted in death, evidencing that the accused.
- did not care whether the victim lived or died.
Drury v HM Advocate
Two types of culpable homicide and the relevant authority for both…
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.
The requirements for assault and necessary authority
An attack carried out with the necessary intention (Smart v Hm Advocate)
Lord Advocate’s reference no 2 of 1992
Transferred intent authority
Connor v Jessop 1988
Reckless Injury’s actus reus and mens rea with relevant authority.
causing injury to another, utter disregard for the consequences of actions.
W v HM Advocate 1982
HM Advocate v Harris 1993 - Bouncer case…
Reckless endangerment
endangering the public with reckless actions
Normand v Robinson 1994, Reynolds v Lockheart 1977
Three specific reckless injury and endangerment crimes
- reckless discharge of firearms (Gizzi v Tudhope 1983)
- reckless administration of harmful substances (Robert Brown and John Lawson 1842)
- reckless supply of harmful substances (Khaliq v HM Advocate 1984)
Malicious Mischief actus reus and mens rea with following authority
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
Vandalism actus reus and mens rea
To intend to vandalise property
Criminal Law (Consolidation) (s) act 1995 s52
Fireraising actus reus and mens rea and relevant authority
setting fire to any property wilful or culpable/reckless
Byrne v HM Advocate 2000
relevant authority and requirements for establishing a Breach of the Peace…
- Cause alarm to an individual
- serious disturbance in the community
No mens rea needed - Smith v Donnelly 2002
Threatening or abusive behaviour relevant authority and requirements
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.
Stalking
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.
Necessary requirements for theft and extortion and relevant authority
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
Distinction of embezzlement compared to theft
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)
Robbery Requirements and authority
Theft accomplished by personal violence (Cromar v HM Advocate)
Must have violence leading to theft
Extortion relevant authority and requirements.
making threats for money owed to back up your claim for owed finances.(Black v Carmichael 1992)
Fraud’s requirements and authority
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)
Uttering as Genuine requirements and relevant authorities
forging documents unless prohibited by statute,
- distinct act of uttering
- knowledge that it is fake
- made off as genuine
- towards the prejudice of one person
- writing passes beyond utterer’s control
(John smith 1871)
once the document is exposed, it is a crime (William Jeffery 1842)
Relevant requirements and authority for Reset
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)
What evidence must be corroborated?
Crucial facts - Lord Advocates reference no.1 of 2023
Identification evidence - Ralston v HM Advocate 1987
What special means are there of offering corroboration?
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
How can real evidence be obtained lawfully?
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)
How can real evidence be obtained unlawfully?
Lawrie v Muir 1950 - Balancing test
Seriousness of the crime
Seriousness of irregularity
Good faith (or trickery)
Circumstances of urgency
Admissibility of confessions factors…
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
Fairness test authority for unfairly obtained confessions…
Brown v HM Advocate 1966 - has what has taken place been fair or not?
Lack of cautioning authority for unfairly obtained confessions…
Tonge v HM Advocate 1982, caution must be given once a person is a suspect.
Undue pressure authority for unfairly obtained confessions…
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…
Inducements authority for unfairly obtained confessions…
threats are not allowed in questioning - Harley v HM Advocate 1996
Deliberate eavesdropping authority for unfairly obtained confessions…
it might be unfair if the police had engineered the situation: HM Advocate v Higgins 2006
What must admissibility of confessional statements be decided upon?
Admissibility must be proven on the balance of probabilities by the judge: Platt v HM Advocate 2004.
is Character evidence allowed for the witness?
Character evidence is only allowed if to indicate that the witness is prone to lying Griffith (unsure on authority)
Usually the accused cannot have character evidence led, when is there an exception?
Prior Misconduct
Previous convictions of the accused
Sexual history evidence
Prior Misconduct by the accused in character evidence authority…
Prior misconduct by the accused may corroborate the charge which they face - HM Advocate v Joseph 1929
Previous convictions of the accused authority…
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
Sexual history evidence authority…
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.”
Definition of hearsay and authority…
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)
What is a de recenti statement?
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)
Res Gestae statements and the authority…
A res gestae statement is one which is ”part of the event” or closely associated with it (O’Hara v Central SMT Co 1941)
Evidence of prior identification from the police and it’s authority…
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
Expert witness test and authority…
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
How much time must you give the court for lodging a defence statement?
at least two weeks
Section 70A Criminal Procedure (s) Act 1995.
Plea in Mitigation authority
Falconer v Jessop, 1975
Where loss can be taken into account (death of family in the crime you committed)
Alibi authority…
HM Advocate v Laing 1871
Must give time and place to prove you were not there for when the offence took place.
Incrimination authority…
Flannigan v HM Advocate 2012
Crime not committed by the accused but by another, named if known
Accident authority and reasoning
Objectively tested - McGregor v HMA 1973
recklessness is not accidental - HM Advocate v Pearson 1967
Error of the law authority…
Not knowing the law is not a defence…
Clark v Syme 1957 - sheep killed, charged with malicious mischief.
Self-Defence test and authority
HM Advocate v Doherty 1954
- Imminent danger to life or limb
- No reasonable opportunity to escape (retreat rule). This rule is distinct to Scots law.
- Force used must be proportionate to the attack
Third party self-defence authority…
HM Advocate v Carson 1964
The defence can be pled where the accused has acted to protect a third party
Escape opportunity for self defence authority…
McBrearty v HM Advocate
If you can escape where it does not put you in further risk, then you must.
When is lethal force permissible in self-defence?
Lethal force is permissible only against a threat of death or great bodily harm:
McCluskey v HM Advocate 1959 JC 39
Test for Provocation
- A recognised provocation (physical violence or sexual infidelity).
- A loss of self-control resulting from this recognised provocation.
- An immediate retaliation to the recognised provocation. (more narrow than imminent in self-defence)
- 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
Provocation of Infidelity/violence requirements (similar)
- A loss of self-control resulting from this recognised provocation.
- An immediate retaliation to the recognised provocation.
- Which results in either a reaction expected of the ordinary person (Infidelity)
- Which results in a response which is not grossly disproportionate to the provoking act, (in the case of physical violence)
Coercion legal test and authority…
Thomson v HM Advocate 1983
- Immediate threat of death/great bodily harm
- The “ordinary person” condition
- The accused must not have risked being subject to coercion
Diminished responsibility test and authority…
CPSA s51B
- An abnormality of mind, which caused
- Substantial impairment of the ability to determine or control actions
Only for Murder charges.
Abnormality of mind concept…
Very wide, no psychopathic personality disorder included
Cannot be intoxication - Rogers v HM Advocate 2019
Unfitness for trial due to mental disorder authority…
CPSA s53F(1)
only for trial, on balance of probabilities.
need medical report - Murphy v HM Advocate 2017
after needs examination of facts.
Mental Disorder defence test
CPSA s51A
- The accused was suffering from a mental disorder
- 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”)
What happens if a mental disorder plea is successful?
an Acquittal followed by an examination of facts s55
Automatism requirement and authority
Ross v HM Advocate
- A total alienation of reason (complete loss of self-control)
- Caused by an external factor
- Which the accused was not “bound to foresee”
Intoxication as a defence authority…
Not a defence
Brennan v HM Advocate 1977 JC 38
The legal test for Unlawful acts which result in culpable homicide
Kane v HM Advocate, MacAngus v HMA Advocate
Acts which pose a foreseeable risk of injury, remember thin skull rule can be a factor.
Authority for police stumbling across evidence in a lawful search and Authority for not being allowed to fish for evidence…
HM Advocate v Hepper - can stumble across evidence
HM Advocate v Turnbull - cannot be fishing for different incriminating evidence
Moorov Test requirements and authority
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)
Howden doctrine
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
