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CRIMINAL LAW > Criminal: w 1-2 > Flashcards

Criminal: w 1-2 Flashcards

Actus Reus

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1
Q

What is Summary procedure?

Who judges?

A

Summary:

  • Judge, NO jury.
  • Sheriff or Justices of the Peace
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2
Q

What is Solemn procedure?

Who judges?

A

Solemn procedure (or trial on indictment):

  • Judge + jury of 15 (sole judges of fact.)
  • High Court or Sheriff Court.

If an accused is acquitted by a jury, the prosecution cannot appeal against that verdict

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3
Q

What are the 3 verdicts and what does each result in?

A
  1. Guilty > conviction
    2, Not Guilty > acquittal
  2. Not Proven > Acquittal
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4
Q

Is Criminal law reserved?

A

Not reserved per se, but criminal legislation may touch on reserved matters, e.g. drugs, firearms, terrorism

Both UK and Scotland can legislate.

Legislation of the Scottish Parliament on reserved matters is invalid unless its purpose is to make criminal law ‘apply consistently to reserved matters and otherwise’.

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5
Q

Who are the criminal institutional writers?

A
  1. Hume (Commentaries on the Law of Scotland Respecting Crimes)
  2. Mackenzie (The Laws of Scotland in Matters Criminal)
  3. Alison. (Principles of Criminal Law of Scotland)

Not institutional (authoritative): MacDonald and Gordon

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6
Q

The prosecution must prove all elements of the offence first.

What 2 things do criminal offences require?

A
  1. Actus Reus - ‘guilty act’

2. Mens Rea - ‘guilty mind’

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7
Q

For a defence, who bears the initial, evidential burden and who must usually then disprove?

A

Accused bears initial, evidential burden, prosecution must (usually) then disprove

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8
Q

Usually some of the actus reus elements must be accompanied by mens rea. Some statutory offences do not, what are they known as?

A

Strict Liability offences

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9
Q

Why are strict liability offences controversial?

A

Because one can commit them accidentally or by mistake

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10
Q

What does Article 7 provide?

A

Article 7: no punishment without law

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11
Q

What was held in R v Brown by the majority (and the minority)?

A

Majority: Consent is not a defence: - Not possible to consent to sadomasochism: immoral and dangerous

Minority: a matter of private morality

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12
Q

Which case laid down the 2 elements required for Breach of the Peace and what are they?

A

Smith v Donnelly

  1. Conduct severe enough to cause alarm to ordinary people, AND
  2. Threaten disturbance to community
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13
Q

What are the 4 different types of actus reus? Which 2 are most common?

A
  1. Result Crimes (causing a result - e.g. murder)
  2. Conduct Crimes (performing an action - e.g. assault)
  3. Omissions
  4. States of affairs (e.g. possession)

Result + conduct crimes are most common.

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14
Q

Why does criminal liability usually requires an act?

A

because we cannot claim that an accused has caused something or done something unless there is some action that can be attributed to him/her.

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15
Q

Criminal acts must be voluntary.

What 4 ways may be used to deny the implicit presumption of voluntariness?

A
  1. Automatism
  2. Reflex Actions - (action, but unintentional)
  3. Innocent Agents
  4. Events beyond the accused’s control
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16
Q

1.What is the defence of automatism?

Which case defines it?

A

Accused has no conscious control over his act because of some external cause. (e.g. sleepwalking).

Requires: total alienation of reason amounting to a complete absence of self-control. (Ross v HM Adv)

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17
Q
  1. Reflex actions are when the action is unintentional

Does the wording of the statute matter?
case

A

Yes.

Hill v Baxter

  • Originally acquitted for driving through red light and hitting another car when blacked out because A wasn’t ‘intentionally’ driving dangerously.
  • Appeal: did fall within statute - statute did not specify it needed to be ‘intentional’.
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18
Q

What was happened in Ryan v the Queen?

A

Ryan v the Queen

  • D was liable for accidentally pulling gun trigger whilst carrying out a robbery after being startled.
  • Although the trigger was pulled involuntarily, the gun was intentionally pointed at the victim.
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19
Q
  1. Are court sympathetic when there is no action at all - accused just gets caught up in causal process?

What happened in Hogg v Macpherson?

A

Yes.

Hogg Macpherson:

  • Van was blown over in the wind, damaged streetlamp.
  • A not liable, no act by him caused the damage.
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20
Q

What are external events cases?

A

Events beyond the accused’s control cause him to commit state of affairs offence.

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21
Q

What was held in English case R v Larsonneur?

A

R v Larsonneur
* French national who left the UK on designated day but was deported back held as guilty - statute prohibited being in the country without permission.

Held: English courts generally unsympathetic.

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22
Q

Actus Reus and Mens Rea must coincide.

What is a continuing act? What case describes it?

A

Continuing act is where the accused’s act is initially accidental, but they later develop the required mens rea.

Fagan v MPC:

  • D was pulled over by the police and asked to park.
  • accidentally ran over police officer’s foot. But then proceeded not to move after being repeatedly asked to.

HELD: guilty.
Must look at whole course of events. there was a connection between the initial act and later mens rea.

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23
Q

What is the default rule on omissions?

What are the 4 exceptions?

A

One cannot commit a crime by omission i.e. failing to act or prevent harm.

Exceptions: when there is a duty to prevent harm:

  1. Duties arising from a relationship
  2. Assumption of responsibility
  3. Creation of a dangerous situation
  4. Contractual duties
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24
Q

What is the case and test for duties arising from a relationship (parent and child)?

A

Bone v HM Adv
* Context of abuse was considered when mother neglected child (born from abusive relationship)

Test: what is reasonable in the circumstances

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25
Q

Can positive duties be acquired by assuming responsibility for another’s care?

Must there be a blood relation?

A

Yes.

R v Instan

  • Aunt’s death accelerated due to neglect in D’s house.
  • Held: D guilty of manslaughter

No, does not need to be blood relation:

R v Stone & Dobinson

  • Sister cared for badly in room with no ventilation or access to bathroom
  • Sister and partner: guilty ( no blood relation needed). Partner had tried to find doctor, indication she had taken voluntary responsibility.
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26
Q

Is there a duty to remedy dangerous situation created (even accidentally)?

A

May be a duty to remedy:

27
Q

What happened in MacPhail v Clark and what was A charged with?

A

MacPhail v Clark

  • Farmer set fire to field (normal practice), but fire spread to neighbouring road and caused bad visibility on road.
  • Farmer did nothing
  • collision on road.

Charged: culpable and reckless endangerment
- farmer created dangerous situation and did nothing to remedy

28
Q

What was the charge and why was the conviction quashed in McCue v Currie?

A

McCue v Currie
* Accused broke into caravan to steal, accidentally burnt it down when using a lighter to see.

Conviction of fire-raising was quashed due to lack of mens rea.

29
Q

Why was the conviction quashed in McCue v Currie but not in MacPhail v Clark?

A

Possibly because McCue was a different charge: fire-raising (MacPhail: reckless endangerment).

30
Q

Can someone be liable for an omission when they fail to fulfil a legal duty? (give case)

A

Yes.

R v Pittwood
* man who left level-crossing open unmanned liable for omission (manslaughter due to collision between train and cart).

31
Q

Result crimes require ____ as an element of the actus reus?

A

Causation

32
Q

What two components make up causation?

A
  1. Factual causation

2. Legal causation

33
Q

What is factual causation?

A

As a matter of fact, was the accused’s act/omission a causal condition of the prohibited result?

34
Q

What is the test for factual causation?

A

‘but for’ test: ‘I sine qua non’

but for the accused’s actions, would the result have occurred?

35
Q

What did the accused do in R v White and did it meet the but for test?

A

R v White
* Accused poisoned mother’s drink
* not enough to be fatal
FAILED but for test, she would still have died but for A’s actions.
- not liable for murder (just attempted murder)

36
Q

Was the but for test satisfied In Hendry v HM Adv?

A

Yes…

Hendry v HM Adv

  • although the Injuries suffered were v. minor and ordinarily by themselves not enough to cause victim’s death, assault stood.
  • victim had heart condition and drunk/ate a lot that day climbing stairs etc.
  • Conviction was upheld, jury properly briefed and convinced that his actions did cause death.
37
Q

Not all factual causes are legal causes.

There is no single test for legal causation.
What are two loose general rules that determine legal causation?

A
  1. Remoteness

2. Thin skull rule

38
Q

What is meant by remoteness?

A

Some ‘but for’ causes are too remote from an ultimate harm to count as legal causes.

To be a legal cause, an act must still be a substantial factor in the occurrence of the result, at the time when it occurs.

39
Q

In reality, do criminal courts find that an action is too remote from the relevant harm to count as a legal cause?

A

Rarely criminal courts find an action is too remote to count as a legal cause.

It is usually enough that the action is one substantial factor amongst others. (e.g. Hendry: assault by accused, but other elements)

40
Q

What is the thin skull rule?

A

“take your victim as you find them”

Victim’s particular sensitivities do not negate causation - no matter how unusual.

41
Q

What happened in Bird v HM Adv?

A

Bird v HM Adv
* Accused chased victim down road, she tried to escape.
* A grabbed V by the shoulder to prevent her getting in car.
* V collapsed and died
Held: A liable for death, despite unforeseeability of collapse

42
Q

Which case shows that the thin skull rule extends to non-physical characteristics?

A

R v Blaue
* Victim stabbed, refused blood transfusion (Jehovah).
Held: Liable for victim’s death

43
Q

What is a Novus Actus Interveniens?

A

A break in causation between an accused’s acts and a prohibited result.

44
Q

What are the 4 categories of novus actus interveniens?

A
  1. Intervening acts of the victim.
  2. Intervening acts of third parties
  3. negligent medical treatment
  4. intervening natural events
45
Q

When do acts of self-preservation break the causal chain?

A

When they are unreasonable or unforeseeable.

46
Q

What are the two ‘jumping out of car cases’ (legal causation: NAI)

A
  1. R v Roberts
    * Victim jumped out of moving car to fend off sexual assault
    * Conviction of assault (no NAI)
    * As long as victim’s act not ‘totally daft’ it won’t break chain.
  2. R v Williams
    * Victim hitchhiked in car, was asked for money and jumped out of moving car.
    * NAI: unreasonable - action of jumping out of car totally unreasonable response to being asked for money.
47
Q

Does the victim have a duty to seek treatment? (2 cases)

A

No.

R v Blaue
* victim did not have a duty to have blood transfusion.

R v Dear

  • Victim stabbed by mistress’ husband.
  • He did not want ambulance, tried to reopen wounds and wrote suicide note
  • still no duty on victim, no matter how unreasonable.
48
Q

What has Scots law held in cases where A supplies drugs to C, and C harms himself/herself by using the drugs?

A

Generally, Scottish courts have not found a break in causation in such cases

49
Q

What was held in Khaliq v HM Adv?

A

Khaliq v HM Adv
* Shopkeeper supplied ‘glue-sniffing’ kits to children.
* causal link held: despite voluntary acts of children
(charged with: recklessly causing abuse to children).

50
Q

What was the difference between Khaliq and Ulhaq? Did the cases have the same result?

A

Ulhaq

  • similar facts except it was adults using the glue-sniffing kits.
  • same result as Khaliq: adults actions sniffing the glue did not break chain of causation.
51
Q

What was the original decision that Lord Advocate’s Reference (No 1 of 1994) thought was ‘wrongly decided’?

A

Lord Advocate’s Reference (No 1 of 1994)

  • Original trial judge was wrong to say that voluntary decision of victim to take drugs was a NAI.
  • Held that it was possible for accused to be liable for deaths of victims when harmful substances were supplied.
52
Q

What happened in MacAngus v HM Adv?

A

MacAngus v HM Adv

  • Person who supplies drugs can be liable
  • charged: culpable homicide
53
Q

How does the English case R v Kennedy differ from MacAngus v HM Adv?

A

R v Kennedy
* Voluntary decision of taking harmful substance WILL break chain in causation.

(MacAngus: no break in causation).

54
Q

Do deliberate acts of self-harm, to which accused contributed, break the chain of causation?

Which English cases discussed this?

A

Law uncertain in this area - but it will not necessarily break the chain of causation.

R v Dhaliwal
* did not rule out possibility that person could be liable for homicide by causing another’s suicide.

R v Wallace
* suicide does not necessarily break the chain of causation.

55
Q

Do intervening acts of third parties break the causal chain?

A

Yes if they are voluntary.

56
Q

What did R v Pagett state about whether an act was ‘free and voluntary’ (as to constitute an NAI)

A

R v Pagett

  • Man used girlfriend as human shield
  • police officer killed her accidentally after shooting when he heard a shot.
  • conviction of manslaughter upheld
  • Chain NOT broken:
    1. Police officer’s actions were not ‘voluntary’ (legal duty)
    2. PO acting in self-defence.
57
Q

When does negligent medical treatment break the chain of causation?

A

When it is so negligent that the earlier act ceases to be an operative and substantial cause.

58
Q

What did R v Jordan hold re: negligent medical treatment?

A

R v Jordan

  • Man stabbed, his wound almost healed.
  • was given v negligent treatment: allergic drugs, too much fluids etc.
  • Treatment WAS NAI: since stab-wound had nearly healed, court could not possibly conclude it was cause of his death.
  • rare
59
Q

Was medical negligence held to be a NAI in R v Smith

A

No

R v Smith

  • man was stabbed.
  • Then dropped twice, given wrong treatment by medical staff.

held: not sole cause of victim’s death. the wound was still a contributing factor.
(contrast with R v Jordan).

60
Q

When would freak natural accidents break the chain of causation?

A

If so powerful and unforeseeable that accused’s act ceases to be a substantial cause.

e.g. struck by lightning.

61
Q

Was there a breach of the peace in Harris v HM Adv?

A

No.

Harris v HM Adv

  • A told police he knew the names and addresses of their family.
  • No BoP = no public element
62
Q

How did a taxi driver breach the peace in Bowes v McGowan?in Bowes v McGowan?

A

Bowes v McGowan

  • taxi driver made sexually explicit comments to 14 year-old school girl alone in taxi
  • BoP held: was a public element - taxi publicly licensed, real risk conduct would be discovered
63
Q

Was there a breach of the peace in Hatcher v Harrower?

A

No.

Hatcher v Harrower

  • Husband interrogated wife in family home for hours with children upstairs
  • No BoP:no public element - no disturbance to the community and no evidence that children upstairs were aware.
64
Q

What did the accused do in Borwick v Urquhart and was it a breach of the peace?

A

Borwick v Urquhart

  • accused supplied underage alcohol to teenage girls and filmed it
  • showed video to 1 other person

held: No BoP: no public element - only 1 person saw the video.

CRIMINAL LAW (8 decks)

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