Criminal Legislation Flashcards

1
Q

Sexual Offences (Scotland) Act 2009, s 1

A

(1) If a person (“A”), with A’s penis—(a) without another person (“B”) consenting, and (b) without any reasonable belief that B consents, penetrates to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B then A commits an offence, to be known as the offence of rape.(2) For the purposes of this section, penetration is a continuing act from entry until withdrawal of the penis; but this subsection is subject to subsection (3). (3) In a case where penetration is initially consented to but at some point of time theconsent is withdrawn, subsection (2) is to be construed as if the reference in it to acontinuing act from entry were a reference to a continuing act from that point of time.(4) In this Act— “penis” includes a surgically constructed penis if it forms part of A, having been created in the course of surgical treatment, and “vagina” includes— (a)the vulva, and (b) a surgically constructed vagina (together with any surgically constructed vulva), if it forms part of B, having been created in the course of such treatment.

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2
Q

Sexual Offences (Scotland) Act 2009, s 2

A

(1) If a person (“A”), with any part of A’s body or anything else— (a) without another person (“B”) consenting, and (b) without any reasonable belief that B consents, penetrates sexually to any extent, either intending to do so or reckless as to whether
there is penetration, the vagina or anus of B then A commits an offence, to be known as the offence of sexual assault by penetration. (2) For the purposes of this section, penetration is a continuing act from entry to withdrawal of whatever is intruded; but this subsection is subject to subsection (3). (3) In a case where penetration is initially consented to but at some point of time the consent is withdrawn, subsection (2) is to be construed as if the reference in it to a continuing act from entry were a reference to a continuing act from that point of time.(4) Without prejudice to the generality of subsection (1), the reference in that subsection to penetration with any part of A’s body is to be construed as including a reference to penetration with A’s penis.

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3
Q

Sexual Offences (Scotland) Act 2009, s 3

A

(1) If a person (“A”) - (a) without another person (“B”) consenting, and (b) without any reasonable belief that B consents, does any of the things mentioned in subsection (2), then A commits an offence, to be known as the offence of sexual assault. (2) Those things are, that A - (a) penetrates sexually, by any means and to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B, (b) intentionally or recklessly touches B sexually, (c) engages in any other form of sexual activity in which A, intentionally or recklessly, has physical contact (whether bodily contact or contact by means of an implement and whether or not through clothing) with B,(d) intentionally or recklessly ejaculates semen onto B, (e) intentionally or recklessly emits urine or saliva onto B sexually…. (3) For the purposes of paragraph (a) of subsection (2), penetration is a continuing actfrom entry until withdrawal of whatever is intruded; but this subsection is subject to subsection (4). (4) In a case where penetration is initially consented to but at some point of time the consent is withdrawn, subsection (3) is to be construed as if the reference in it to a continuing act from entry were a reference to a continuing act from that point of time.12
(5) Without prejudice to the generality of paragraph (a) of subsection (2), the referencein that subsection to penetration by any means is to be construed as including areference to penetration with A’s penis.

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4
Q

Sexual Offences (Scotland) Act 2009, s 12

A

In Parts 1 and 3 [of this Act] “consent” means free agreement (and related expressionsare to be construed accordingly)

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5
Q

Sexual Offences (Scotland) Act 2009, s 13

A

(1): For the purposes of section 12, but without prejudice to the generality of that section, free agreement to conduct is absent in the circumstances set out in subsection(2). (2) Those circumstances are—(a) where the conduct occurs at a time when B is incapable because of the effect of alcohol or any other substance of consenting to it,(b) where B agrees or submits to the conduct because of violence used against B or any other person, or because of threats of violence made against B or any other person, (c) where B agrees or submits to the conduct because B is unlawfully detained by A, (d) where B agrees or submits to the conduct because B is mistaken, as a result of deception by A, as to the nature or purpose of the conduct, (e) where B agrees or submits to the conduct because A induces B to agree or submit to the conduct by impersonating a person known personally to B, or (f) where the only expression or indication of agreement to the conduct is from a person other than B.

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6
Q

Sexual Offences (Scotland) Act 2009, s 14

A

(1) This section applies in relation to sections 1 to 9. (2) A person is incapable, while asleep or unconscious, of consenting to any conduct

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7
Q

Sexual Offences (Scotland) Act 2009, s 15

A

(1) This section applies in relation to sections 1 to 9. (2) Consent to conduct does not of itself imply consent to any other conduct. (3) Consent to conduct may be withdrawn at any time before, or in the case of continuing conduct, during, the conduct. (4) If the conduct takes place, or continues to take place, after consent has beenwithdrawn, it takes place, or continues to take place, without consent.

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8
Q

Sexual Offences (Scotland) Act 2009, s 16

A

In determining, for the purposes of Part 1, whether a person’s belief as to consent or knowledge was reasonable, regard is to be had to whether the person took any steps to ascertain whether there was consent or, as the case may be, knowledge; and if so, to what those steps were

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9
Q

Criminal law (Consolidation) (Scotland) Act 1995, s 1

A

(1) Any male person who has sexual intercourse with a person related to him in a degree specified in column 1 of the Table set out at the end of this subsection, or any female person who has sexual intercourse with a person related to her in a degree specified in column 2 of that Table, shall be guilty of incest, unless the accused proves that he or she—(a) did not know and had no reason to suspect that the person with whom he or she had sexual intercourse was related in a degree so specified; or (b) did not consent to have sexual intercourse, or to have sexual intercourse with that person; or (c) was married to that person, at the time when the sexual intercourse took place, by a marriage entered into outside Scotland and recognised as valid by Scots law.

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10
Q

Domestic Abuse (Scotland) Act 2018

A

Tutorial

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11
Q

Criminal Justice and Licensing (Scotland) Act 2010, ss 38 and 39

A

Behaving in a threatening or abusive manner and stalking

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12
Q

Criminal Procedure (Scotland) Act 1995, s 51A: mental disorderCriminal Procedure (Scotland) Act 1995, S 51B: diminished responsibility

A

Burdens of proof: Two burdens of proof: “persuasive”, and “evidential“. “Incidence”: who carries burden of proof in criminal cases? Standards of proof: “beyond a reasonable doubt” and “on the balance of probabilities”.

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13
Q

Criminal Procedure (Scotland) Act 1995, ss 101(1) and 166 (3)

A

Previous convictions

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14
Q

Criminal Procedure (Scotland) Act 1995, ss 274, 275 and 275A.

A

Character of complainers

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15
Q

Criminal Procedure (Scotland) Act 1995, s 259 - hearsay evidence

A

Exceptions apply where the person who made the original statement: (1) is dead or physically or mentally unfit (2) is outwith the UK and it is not reasonably practicable to secure his or her attendance at the trial or otherwise obtain their evidence …(3) cannot be found and all reasonable steps have been taken to find him. (4) by leave of the court, refuses to give evidence. (5) refuses to give evidence, having been “directed” by the judge to do so”.

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16
Q

Criminal Procedure (Scotland) Act 1995 s 271(1)

A

A person who is giving evidence in criminal proceedings is a vulnerable witness if—(a) …. under the age of 18…..21
(b) there is a significant risk that the quality of the evidence … will be diminished by reason of(i) mental disorder…(ii) fear or distress in connection with giving evidence …(c) the offence is [certain sexual offences, human trafficking, domestic abuse, or stalking] or (d) there is …. a significant risk of harm to the person [due to giving evidence].

17
Q

Criminal Procedure (Scotland) Act 1995 s 271(2)

A

In determining whether a person is a vulnerable witness … the court shall take into account—(a) the nature and circumstances of the alleged offence (b) the nature of the evidence which the person is likely to give, (c) the relationship (if any) between the person and the accused, (d) the person’s age and maturity, (e) any behaviour towards the person on the part of—(i) the accused,(ii) members of the family or associates of the accused,(iii) any other person who is likely to be an accused or a witness in the proceedings, and (f) such other matters, including—(i) the social and cultural background and ethnic origins of the person, (ii) the person’s sexual orientation,(iii) the domestic and employment circumstances of the person, (iv) any religious beliefs or political opinions of the person, and (v) any physical disability or other physical impairment which the person has, as appear to the court to be relevant.

18
Q

Criminal Procedure (Scotland) Act 1995 S 271H

A

The special measures which may be authorised are—(a) taking of evidence by a commissioner ….(b) use of a live television link ….(c) use of a screen …(d) use of a supporter …(e) giving evidence in chief in the form of a prior statement …(ea) excluding the public during the taking of the evidence ….

19
Q

The Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 amends the1995 Act

A
  • child witnesses in certain solemn cases to give evidence in advance of the hearing
  • evidence to be taken by commissioner
  • use of prior statements
20
Q

the Age of Criminal Responsibility (Scotland) Act 2019, s 1

A

Non-age
A child under the age of 12 years cannot commit an offence.

21
Q

Criminal Procedure (Scotland) Act 1995 - mental disorder

A

(i) Unfitness for trial (ii) Defence of mental disorder (iii) Diminished responsibility

(as amended by the Criminal Justice andLicensing (Scotland) Act 2010)

22
Q

Criminal Procedure (Scotland) Act 1995, s 53F

A

Unfiitness for trial

(1): A person is unfit for trial if it is established on the balance of probabilities that the person is incapable, by reason of a mental or physical condition, of participating effectively in a trial.(2) In determining whether a person is unfit for trial the court is to have regard to—(a) the ability of the person to—(i) understand the nature of the charge,(ii) understand the requirement to tender a plea to the charge and the effect of such a plea,(iii) understand the purpose of, and follow the course of, the trial,(iv) understand the evidence that may be given against the person,(v) instruct and otherwise communicate with the person’s legal representative, and (b) any other factor which the court considers relevant.(2) The court is not to find that a person is unfit for trial by reason only of the person being unable to recall whether the event which forms the basis of the charge occurred in the manner described in the charge.

23
Q

Criminal Procedure (Scotland) Act 1995, s 51 A

A

Criminal responsibility of persons with mental disorder

(1) A person is not criminally responsible for conduct constituting an offence, and is to be acquitted of the offence, if the person was at the time of the conduct unable by reason of mental disorder to appreciate the nature or wrongfulness of the conduct.(2) But a person does not lack criminal responsibility for such conduct if the mental disorder in question consists only of a personality disorder which is characterised solely or principally by abnormally aggressive or seriously irresponsible conduct.25
(3) The defence set out in subsection (1) is a special defence.(4) The special defence may be stated only by the person charged with the offence andit is for that person to establish it on the balance of probabilities.(5) In this section, “conduct” includes acts and omissions.

24
Q

Criminal Procedure (Scotland) Act 1995, s 51B

A

Diminished responsibility

(1): A person who would otherwise be convicted of murder is instead to be convicted of culpable homicide on grounds of diminished responsibility if the person’s ability to determine or control conduct for which the person would otherwise be convicted of murder was, at the time of the conduct, substantially impaired by reason of abnormality of mind.(2) For the avoidance of doubt, the reference in subsection (1) to abnormality of mindincludes mental disorder.(3) The fact that a person was under the influence of alcohol, drugs or any other substance at the time of the conduct in question does not of itself—(a) constitute abnormality of mind for the purposes of subsection (1), or (b) prevent such abnormality from being established for those purposes.(4) It is for the person charged with murder to establish, on the balance of probabilities,that the condition set out in subsection (1) is satisfied.(5) In this section, “conduct” includes acts and omissions.

25
Q

Criminal Justice and Licensing (Scotland) Act 2010, s 26

A

Intoxication (voluntary)

(1) Subsection (2) applies in relation to an offender who was, at the time of the offence, under the influence of alcohol as a result of having voluntarily consumed alcohol. (2) A court, in sentencing the offender in respect of the offence, must not take that factinto account by way of mitigation