Criminal law (semester 1) - Lectures 1-21 Flashcards
What is the harm principle?
Society demands that some acts/omissions are crimes and expect these to be treated as criminal offences. A crime is a situation forbidden by the law under the threat of punishment. Harm can be done not only to people but objects, we need to consider the consequences. Physical harm (the most common and simplest type of harm) harm to oneself, psychological harm etc.
What is the European court of human rights?
Embedded in all acts of legislation in the UK. We signed up to it as a country and are now held accountable for it. The rights should be considered in all decisions within the court of law. All laws must be compatible with the ECHR
What is a crime?
A crime is a situation forbidden by the law under treat of punishment
What are the 5 categories of crime?
Positive conduct
Result conduct
Negative conduct/crimes of omission
Crime of commission by omission
State of affairs
What are positive conduct crimes?
A public wrong. Easiest one to prove and obvious consequences of harm. There is a wide range of positive conduct that can be criminalised. E.g. assault or murder
What are result conduct crimes?
An act or conduct that has a subsequent result. Harm may not be immediate or have a direct consequence. E.g. selling glue to a minor. No harm caused while selling the glue the harm comes afterwards if the minor inhales the glue.
What are negative conduct/ crimes of omission?
Failure to comply with the law. Must be a legal duty to act. If you fail to act or do something you may inflict harm to yourself or someone else. E.g. Failing to wear a seatbelt or failing to provide a breath specimen for driving offences.
What are crimes of commission by omission?
Negative conduct that has a result. failing to act does have an effect and a clear consequence. E.g. starving a child to death.
What are state of affair crimes?
A state of affairs exists or a person is in a particular situation that is unlawful. Tends to be statutory affairs E.g. drunk in charge of a motor vehicle.
What acts ‘ought’ to be a crime?
- If they involve harm to others, they should be considered a crime (e.g. assault)
- If they cause offence to others, they should be considered a crime (e.g. racial aggravation)
- If they are contrary to morality, they should be considered a crime (e.g. incest)
- If they harm the offender himself, they should be considered a crime (e.g. drug taking)
What 5 categories did Cubie categorize crimes?
Crimes against a person
Crimes against a property
Crimes against the state
Public order and public morality crimes
Regulatory offences
What is common law?
The unwritten law that develops overtime based on court decisions. As the result of someone being sentenced for something in court, that case will then become an example for future acts of the same nature. It is developed and applied by the judiciary. E.g. murder is not written down as a crime it is part of common law and understood in the courts as a crime.
What is legislation?
There are English laws that in Scotland we still need to conform with. Laws much more clearly define criminal acts. Within written law it is difficult to change it is very rigid.
What are human rights laws?
The courts are bonded to human rights laws that they must always conform to.
What are legal writings?
Courts still refer to influential books on criminal law.
What is a case authority for common law? (laws adapting)
HM Advocate v Wilson 1984 SLT 117
What is the declaratory power of the high court?
A historic and little used power of the high court. It allows the high court to create new crimes in a quasi-legislative fashion. This power has not been used since the case of Bernard Greenhuff (1838) vs Swinton 236.
What/who is the Lord Chief Justice?
The second most senior judge in Scotland. Currently Lady Dooren, the first female ever.
Who/what is the Lord Advocate?
Dorthy Bain (second ever lady in this position), chief prosecutor for Scotland, head of Crown Office & Prosecution Service (COPS) not a judge.
What is the Solicitor general?
Deputy of the Lord Advocate, advises the Crown and the Scottish Government
What are the 3 legal jurisdictions in the UK?
England & Wales, Scotland and Northern Ireland
What is a solemn procedure?
Involves the most serious of criminal cases and may ultimately lead to a trial on indictment, either before a judge in the High Court or before a sheriff in one of the sheriff courts. Trials under solemn procedure are conducted before a jury.
What is a summary procedure?
95% of procedures are summary. Is used for less serious offences and may ultimately lead to a trial before a Sheriff or a Justice of the Peace. Trials under summary procedure are conducted without a jury. This means that the judge has the say of whether someone is guilty or not.
What are the 2 types of appeal courts?
Sheriff appeal court
High court of justiciary appeal court
What is the Sheriff appeal court?
A single appeal sheriff will review papers for the application for an appeal. To determine whether the person applying has grounds for the appeal. If the single appeal sheriff rejects the appeal it goes to a panel and if they too agree that there are no grounds for an appeal the appeal is dropped. Criminals can appeal on the grounds that they do not believe that the punishment is fair or that they don’t believe that they should have been found guilty. If someone is found not guilty but the crime believes that there is sufficient evidence, they can appeal. Victims of crime do not have the ability to appeal if their attacker was found not guilty.
What is the High court of justiciary appeal court?
Only sits in Edinburgh does not move around Scotland
Appellate court for decisions of HCofJ, Sheriff Appeal Court and all Sheriff and JP courts. Appeal cases referred to it by the Scottish Criminal Case Review Commission e.g. miscarriage of justice
What is the supreme court’s role in appeal cases?
Can only consider appeal cases on issues of major public interest i.e human rights e.g Cadder v HMA 2010 UKSC 43 Supreme Court.
What is the maximum sentence and fine that can be given by the Justice of the peace court?
Maximum sentence 60 days
Maximum fine £2500
What is the maximum sentence and fine that can be given by the Sheriff Court (Summary, judge only)?
Maximum sentence 12 months
Maximum fine £10,000
What is the maximum sentence and fine that can be given by the Sheriff Court (Solemn, judge + jury)?
Maximum sentence 5 years (or if considered more serious may remit to high court for sentence), unlimited fine
What is the maximum sentence and fine that can be given by the High Court of Justiciary?
Unlimited sentence
Unlimited fine
What is the Scottish Criminal Cases Review Commission?
Considers alleged miscarriages of justice and to refer appropriate cases to the High Court for review
Where a convicted person has lost an appeal against conviction and/or sentence, the Commission is able to look into the matter again
Normally, it will only look into a case after an appeal has already been heard by the High Court or Sheriff Appeal Court.
Where the Commission does refer a case for review, it is up to the High Court to decide whether or not to overturn a conviction, change a sentence or give authority for a new prosecution.
What are the three verdicts that are available in Scotland?
Guilty
Not Guilty
Not proven
What is the Double Jeopardy (Scotland) Act 2011?
In Scotland when a person is found not guilty, he/she cannot be tried again for the same crime (double jeopardy)
What is the rule of precedence?
The rule is that the decision of the higher courts create a precedent which the lower court must follow. Decisions are binding on cases heard before.
What is the ‘constitution of a crime’?
A person’s conduct cannot amount to a crime unless it is carried out with a blameworthy state of mind.
Conduct is not criminal unless it is carried out with criminal intent. There are some exceptions
What are the 2 parts of a crime?
Conduct & Mental state
What are the 3 conduct elements of a crime?
- Doing something wrong
- An omission
- A state of affairs
What are the 3 mental elements of a crime?
- Criminal intention
- Acting recklessly
- Blameworthy
What is the common law definition of murder?
‘Murder is constituted by any wilful act causing the destruction of life, whether wickedly intended to kill or displaying such wicked recklessness as to imply a disposition depraved enough to be regardless of consequences.’
What are the 3 things that must be present for a crime?
- Act
- Intention
- No defense
What is the statutory offence definition of vandalism?
‘Vandalism is defined by statue as wilfully or recklessly destroying property belonging to another without reasonable excuse.’
What is the Actus Reus?
Conduct element of an offence e.g. doing the criminal offence
What is a mens rea?
Criminal intent required for that offence e.g. the mental element
What happened in Drury v HM Advocate, 2001 SLT 1013?
Accused killed his ex-partner with a hammer
Argued a defence of provocation
Held he had not demonstrated the mens rea to murder i.e. ‘wicked intention to kill’
Therefore, anyone who kills under the defence of provocation is not guilty of murder but the lesser crime of culpable homicide.
What happened in the case Galbraith v HM Advocate 2002 JC 1?
The accused was found guilty of the murder of her husband
On Appeal claimed diminished responsibility at the time of
the offence due to the fact that she had been abused by her partner for years. She argued that she was suffering from PTSD from the abuse thus reducing her culpability.
Retrial was allowed
Note: the defence of diminished responsibility was accepted in this case as the ground for retrial.
What is someone required to have in order for a crime of omission to take place?
Legal duty or responsibility to act
What can class as an involuntary act?
State of unconsciousness e.g. sleepwalking
Autonomism e.g. having a spasm and hitting someone
What are the three levels of blameworthiness?
- Intention or knowledge
- Recklessness
- Negligence
What are the 4 forms of mens rea?
Common element
Intention
Recklessness
Negligence
What is transferred intent?
Classic case of transferred intent particularly considering that assault can only be committed intentionally. The doctrine allows for A to be responsible exactly in the same way as if the blow had landed upon the intended victim rather than a bystander
What is recklessness?
Unjustified risk taking to act without regard to the consequences of ones actions
What is subjective recklessness?
Accused was aware of the risks involved in their actions
What is objective recklessness?
The risk should have been foreseen or the accused should have been aware of it, in view of a reasonable person standard.
What is negligence?
A person is said to be negligent when the conduct has failed to reach the standard of the reasonably competent or careful person.
What is wilful ignorance/blindness?
The accused puts themselves in an epistemic position where they don’t know or come to know about facts that are criminally relevant. Entails a normative judgment that the accused, in their circumstances, should have known about those facts.
What is error of law?
It is not a requirement of mens rea that the accused should have been aware of the illegality of their behaviour.
What is error of fact
A may have been in error about fact that would make their conduct justifiable or excusable, reasonable test
A may have been in error about a fact relevant to an ingredient of the definitions of the crime for which they may have been processed, A shoots B, thinking B was a deer
How do we prove mens rea?
Basic assumption mental states can be proven
Potential source of confusion dualism about the outer world and the mental world
In practice, mens rea doesn’t really look to tract actual mental state but rather it infers mental states from the factual circumstances and the actions of the accused.
What are the two broad approaches to proving mens rea?
Subjective
Objective
What is a motive?
Motive refers to the explanatory reasons for someone’s actions
Traditional view motive is irrelevant to determine mens rea. To a large extent this is true, establishing criminal liability does not require nor depend on the motives of the accused.
What is strict liability?
Statutory offences where one or more of the elements of the offence in the actus reus do not require mens rea to be proven for a conviction.
Vicarious liability
Situation where there is no mens rea on the part of the accused, but said accused can still be held criminally liable. Usually limited to cases of licensing offences and where there is a clear appropriate relationship between the accused and the agent. E.g. A’s employee B sells alcohol to someone underage. A is guilty of the crime because B is in the employ of A
What is corporate criminal liability?
Situation where there is no traditional mens rea, as the person who commits the offence is a corporation. Companies can be convicted of crime
What is ‘Corporate homicide’ and what is the sentences?
When a company is responsible for a death, punishable in high court by a fine
What is causation?
The linking of a particular result or consequence (effect) to a prior action, behaviour, state of affairs or event (cause)
What is the importance of causation?
Creates a link between the actions of the accused and the results of those actions. Hence why causation is especially important for result crimes.
Causation is structurally part of the actus reus of result crimes and is especially important to establish for certain offences
What is the causation of fraud?
False pretense caused the gaining of some advantage
What is the causation of assault?
Causal link between the charge and any aggravations
What is the causation of homicide?
Causing the death of another human being
What are the two elements to determining causation for criminal liability?
Factual causation –> the material link between an action and a result, helps you form a chain of causation
Legal causation –> the principle by which we determine the extent to which liability can be allocated
What are the two main steps when analyzing causation?
Determine factual and legal causation
How to determine factual causation?
But for test
What is the think skull or eggshell rule?
You take your victims as they come’. An accused will be criminally liable even if death or injury results from some pre-existing weakness or condition of the victim.
What can break the chain of causation?
Intervening acts of the victim
Intervening acts of third parties
What are inchoate offences?
Inchoate means not fully formed or developed and, in our context, means the preparation for the commission of an offence.
Backword looking offences, towards the time before the actualising of the criminalised harm/wrong
What are the 3 inchoate offences before a crime is fully formed?
Incitement
Conspiracy
Attempt
What is incitement?
An attempt to form a conspiracy.
Usually through an invitation from the accused to another to enter a criminal conspiracy or to participate in the perpetration of a crime.
What is conspiracy?
Conspiracy is constituted by the agreement of two or more persons to further or achieve a criminal purpose. Actus Reus: entering into the agreement. Mens rea: intention demonstrated by agreeing to a criminal purpose.
What is chain conspiracy?
A agrees which B and then C agrees with B (Chain of agreements). Chain conspiracies it’s difficult to link all the members of the conspiracy especially because C may not be aware of A
What is wheel conspiracy?
Where everyone agrees with one central member, Everyone (spooks) rally around the centre (ringleader)
Why do we criminalize conspiracies?
Instrumental preventative criminalisation power to intervene at an early stage
Special dangers associated to group criminal conduct greater threat to law and order.
What are attempts of crime?
Criminalisation of an endeavour to commit a crime, even if the specific harmful or wrongful result does not come to pass
What are the two types of attempts?
Complete attempts: Act correctly designed to bring about crime (would normally be successful), but the chain of events is interrupted by an unforeseen event fire is raised to destroy a building, but it’s extinguished before it takes hold
Incomplete attempts: Act incorrectly deigned to bring about a crime because of a misjudgment or mistake of the perpetrator gun misfire or a missed shot.
What is the mens rea of attempts?
Men rea of an attempted crime is the same as that of the relevant substantive or completed crime
What is the last act theory?
An attempt is committed once the accused has done everything required of him/her to commit the crime. Associated to an ‘irrevocability’ test (no going back) conduct of an accused can be inferred as preparatory much before the ‘last’ act has been done and would imply that in practice the police cannot intervene until the ‘last’ act has been done.
What is the perpetration theory?
The accused has committed an act which is sufficiently proximate to the commission of the completed crime. The accused must have passed ‘from mere preparation to perpetration’
What is Scotland’s stance on impossible attempts
What if someone attempts to commit a crime which is impossible to complete? E.g. shooting a dead corpse, pickpocketing an empty pocket
Position in Scotland is clear: factual impossibility is no bar to criminal liability. So, it cannot be offered as a general defence to a charge of attempted crime.
