crimnal law and evidence CASES

Question 1

1.Hogg v MacPherson 1928 JC 15

Answer 1

horse-drawn cart blows over and damages council property, not criminally liable because there was no voluntary act. NO VOLUNTARY ACT, ACTUS REUS.

Question 2

2. R v White [1910] 2 KB 124, CA

Answer 2

tried to poison mother but she died of a heart attack instead, not guilty of murder because he hadn’t caused the death. NO CAUSAL LINK, ACTUS REUS

Question 3

3. H.M. Advocate v Kerr and Others (1871) 2 Couper 334

Answer 3

man fails to step in and prevent a girl from being assaulted, whilst morally wrong, no criminal motive/convictions, only liable for what you do not others. NO LIABILITY FOR OMISSIONS, ACTUS REUS

Question 4

4. Quinn v Lees 1994 SCCR 159

Answer 4

accused set his dog on three children, said he called the dog to attack as a joke, decided that there was sufficient evidence that he intended dog to attack, the joke was a motive and didnt effect mens rea. MOTIVE, MENS REA

Question 5

5. Paton v H.M. Advocate 1936 JC 19

Answer 5

drove a car at a police officer at excessive speed striking him, gross indifference to the consequences of his actions. RECKLESSNESS, MENS REA

Question 6

6. Thabo Meli v R [1954] 1 WLR 228

Answer 6

4 men beat victim over the head, thought they had killed him so threw him off a cliff, medical evidence showed he hadn’t died from the beating and was in fact still alive when thrown off the cliff. they argued that actus reus was present but mens rea wasn’t but they were convicted because it was one continuing act. INTERACTION OF MENS REA AND ACTUS REUS, CONTINUING ACT.

Question 7

7. Roberts v Hamilton 1989 JC 91; 1989 SLT

Answer 7

accused aimed a blow at someone and ended up hitting her own boyfriend, she had no intention to hit him but because she had intention to injure someone the intention transferred and she was guilty of assault. TRANSFERRED INTENT, INTERACTION OF MENS RE AND ACTUS REUS.

Question 8

8. H.M Advocate v Robertson and Donoghue (1945, unreported)

Answer 8

the two accused struggled with an elderly shop owner, victim suffered a heart attack and died, it was discovered that the victim had a weak heart and that the attack contributed to heart failure. THIN SKULL RULE, TAKE VICTIM AS YOU FIND HIM, CAUSATION.

Question 9

9. McDonald v H.M. Advocate 2007 SCCR 10

Answer 9

victim was assaulted then locked in a third floor flat, tried to escape through a window, the victim fell and later died as a result, the 2 men who committed the assault were charged with culpable homicide. CAUSATION, VICTIMS CONTRIBUTION.

Question 10

10. H.M Advocate v Fraser & Rollins 1920 JC 60

Answer 10

accused woman would lure victims to a park where her two accomplices would jump the men in order to rob them, on this occasion a victim was killed by the accomplices, held that it was reasonably foreseeable that someone could get killed, all parties were held liable as they were all part of the plan. ART AND PART LIABILITY.

Question 11

11. H.M Advocate v Gallacher 1951 JC 38 (also known as hamilton case)

Answer 11

circus came to Hamilton, fued between a member of the circus and some people from the area, victim was mistaken for the circus member and attacked, many more people witnessed this and decided to join the attack, victim died. although no prior plan it was a spontaneous coming together and the individuals were art and part liable. ART AND PART LIABILITY, SPONTANEOUS COMING TOGETHER.

Question 12

12. Boyne v H.M. Advocate 1980

Answer 12

several people involved in a robbery and assault, victim died as a result of being stabbed by one of the accused, if the others knew he possessed the knife they too would be liable, lack of knowledge about the knife meant that only the assailant was charged with murder. STRAYED FROM THE COMMON PLAN.

Question 13

H.M Advocate v Camerons (1911) 6 Adam 456 (also known as the pearl necklace case)

Answer 13

accused faked a robbery to claim insurance money for an expensive pearl necklace, discovered that it was fake, was left to the jury to decide whether it was preparation for a crime or the actual crime itself, jury held that it was fraud and the couple were convicted. PREPARATION TO PERPETRATION, ATTEMPTED CRIME.

Question 14

14. Docherty v Brown 1996 JC 48; 1996 SLT 325

Answer 14

accused charged with possessing a controlled drug with intent to supply, he thought he had ecstasy tablets but when analysed by a forensic scientist it was found to be wallpaper paste and flour, couldn’t be charged with intent to supply or possession because he didn’t actually have drugs but was instead charged with attempting to commit a crime as he had mens rea. IMPOSSIBLE ATTEMPTS, ATTEMPTED CRIMES, MENS REA.

Question 15

15. West v H.M. Advocate 1985 SCCR 248

Answer 15

accused was charged along with another with conspiracy of committing assault and robbery when they were found sat outside a bank with a scissor blade and a razor the charge was convicted and upheld when they tried to appeal. CONSPIRACY, LOITERING SUSPICIOUSLY WITH WEAPONS.

Question 16

16. Baxter v H.M Advocate 1997 SCCR 437

Answer 16

a dispute arose in a block of flats as one person wanted to renovate, everyone agreed bar one person preventing the renovations from happening. Baxter began to talk about how much it would cost to have him killed. the tenant was killed despite there being no explicit instructions to kill him. the jury held that incitement could be charged where the accused was serious in inviting another to commit a crime. INCITEMENT

Question 17

*17. Drury v H.M. Advocate 2001 SCCR 583

Answer 17

accused murdered his ex-wife after finding out she had slept with another man, brought about the new definition for murder, this case accepted that there was provocation in the form of sexual infidelity. MURDER, WICKED INTENT TO KILL.

Question 18

*18. H.M Advocate v Purcell 2008 JC 131

Answer 18

the accused killed a 10 year old boy when he drove through a red light, was convicted beacuse of his recklessness and indifference towards human life. was charged with culpable homicide. MURDER, WICKED RECKLESSNESS.

Question 19

*19. Petto v H.M. Advocate 2012 JC 105

Answer 19

accused pled guilty to murder after setting fire to the floor of a tenement, the fire rose and caused an explosion killing someone on floor 2, he then tried to revoke his plea and have it reduced to culpable homicide, it was held that he was guilty of murder due to his indifference to human life. MURDER, FORESIGHT OF CONSEQUENCES.

Question 20

*20. Tomney v H.M. Advocate [2012] HCJAC 138

Answer 20

accused unintentionally killed his friend with a licensed gun after the group of friends had been drinking together, was held to be culpable homicide because the discharge of the gun was culpable and reckless, rather than accidental. LAWFULL ACT, INVOLUNTARY CULPABLE HOMICIDE.

Question 21

21. Transco PLC v H.M Advocate (No. 1)

Answer 21

involved a gas company licensed to provide gas for houses, there was a fatal explosion in one house that killed all occupants. the indictment showed that the company demonstrated disregard to the safety of the public and that they were aware of the risks of corrosion to their pipes and others in the company knew of complaints from the family of a smell of gas. the whole company was charged because multiple people knew of different factors and nothing was done. CORPORATE LIABILITY, CULPABLE HOMICIDE.

Question 22

22. John Roy 1839 Bell’s Notes 88

Answer 22

accused deliberately broke a window but was unaware that there was a girl on the other side who got glass in her eye, was acquitted of assault because although he intended to break the window, he had no intent to cause her any harm. ASSAULT, NO INTENT TO CAUSE INJURY

Question 23

23. Smart v H.M Advocate 1975 JC 30; 1975 SLT 65

Answer 23

the accused and the victim agreed to have a ‘square go’ fight without weapons, smart got the upper hand and inflicted injuries, he argued that he couldn’t be convicted of assault because the other party agreed to fight, the appeal court rejected this and said that consent is not a defence. ASSUALT, CONSENT IS NOT A DEFENCE.

Question 24

*24. R v Brown [1994] 1 AC 212

Answer 24

police found videos in which gay men were engaging in sadomasochism activities, the HoL determined that the consent of the participants to these activities was not a defence, they appealed to the court of human rights based on the fact that it was an alleged breach of article 8 however the court wasnt persuaded that these were private acts. ASSAULT, SADO-MASOCHISM.

Question 25

25. Stewart v Nisbet 2013 SCL 209

Answer 25

the accused was a police officer who wrapped sellotape around a woman’s head restricting her breathing, he said he thought she was consenting. the appeal court rejected the mistaken bekeif of consent as a defence. ASSAULT, CONSENT.

Question 26

26. H.M Advocate v Harris 1993 JC 150

Answer 26

accused was charged with assault causing severe injury and permanent disfigurement by grabbing a woman and pushing her causing her to fall down a flight of stairs and onto a roadway where she was struck by a vehicle. RECKLESSLY CAUSING INJURY.

Question 27

27. Black v Carmichael 1992 SLT 897

Answer 27

accused wheel clamped a car and stated “if you don’t give me £50 then the car is staying clamped” not intending to keep it forever but they still intended to deprive the owner until the money was paid, the court said that temporary appropriation may be enough when holding goods to ransom. THEFT, TEMPORARY APPROPRIATION, EXTORTION

Question 28

28. Adcock v Archibald 1925 JC 58; 1925 SLT 258

Answer 28

accused was a coal miner, told they’d be paid a bonus if they mined a certain quantity of coal, each miner had a hutch to fill with their coal that the company would weigh at the end of the day, Adcock thought it looked like someone had more than him so he swapped the name tag but when they were weighed, neither of them had enough to qualify for the bonus but the total was noted down and he now had a higher total resulting in a small gain of getting ahead of other employees in the long run. FRAUD, SMALL PRACTICAL RESULT.

Question 29

29. Byrne v H.M Advocate (No. 2) 2000 JC 155

Answer 29

the accused deliberately set fire to paper and then subsequently the whole building goes on fire. FIRE RAISING, LEADING CASE ON WILFUL FIRE RAISING.

Question 30

30. Smith v Donnelly 2001 SCCR 800

Answer 30

the accused, smith, lay on a roadway disturbing traffic and refused to move when asked to do so, was arrested for breach of the peace but she claimed that it wasn’t compatible with article 7 of the ECHR. BREACH OF THE PEACE. ECHR BREACH

Question 31

31. Jones v Carnegie; Tallents v Gallacher 2004 JC 136

Answer 31

Jones was arrested for sitting strapped in a wheelchair on a roadway approach to a naval base, stopping vehicles from going past. Tallents abseiled from the public gallery into the body of the Scottish parliament. Both argued that their rights under articles 10 and 11 of the ECHR had been breached. Articles provide that these rights can be subject to restrictions by countries so long as they are prescribed by law and necessary. BREACH OF THE PEACE. ECHR BREACH

Question 32

*32. Harris v H.M Advocate 2010 SCCR 15

Answer 32

accused was charged with 2 offences of breach of the peace. he was at the police station being processed and began admitting he knew information about officers. whilst it wasn’t a direct threat he knew a lot of information. in the end they weren’t able to say it was a breach of the peace because it was 1-1 basis. BREACH OF THE PEACE, CONDUCT MUST EFFECT THE PUBLIC PEACE.

Question 33

*33. Cadder v H.M. Advocate [2010] UKSC 43

Answer 33

arrested on suspicion of assault, when they questioned him he thought he was being questioned as a witness but the police actually suspected him to be the perpetrator. he confessed to the police that he punched the victim. in trial they used the 2 officers as corroboration, but cadder argued that his confession shoulnt be used as evidence because he wasnt informed that he was entitled to a lawyer. High court held that in Scotland, lawyer not required/this right not effective for a police questioning due to corroboration. cadder appealed to UK supreme court, they said Scotland was wrong and the accused needed/had a right to have a lawyer during police questioning. CORROBORATION, SUFFICIENCY OF EVIDENCE.

Question 34

*34. Moorov v H.M. Advocate 1930 JC 68

Answer 34

full 7 bench decision. Moorov advertised for female employees to work in his shop, he usually hired young women. he would then ask for help in the back room of the shop where he would then sexually assault them. this happened again over 7 years. he was charged with 21 assaults and some attempted rapes. there was no corroboration but the woman were actually able to corroborate for each other. CORROBORATION.

Question 35

*35. Lord Advocate’s Reference (No. 1 of 2023) [2023] HCJAC 40

Answer 35

full 7 bench decision. complainer stated she had been raped by the accused. she and her boyfriend had been invited by a neighbour to his flat. they drank lager and the complainer believed her drink to have been spiked. her boyfriend left to go and get tobacco and she stated the accused attacked and raped her. when her boyfriend came back she ran out screaming and shouting she had been raped. the only witness was the complainer herself but the boyfriend said he thought that when he opened the door that the neighbour was seemingly naked. another independent 3rd party stated the girl was hysterical and her makeup and hair were both messed up. there was more evidence from a phone call made to the complainer’s sister. the jury acquitted and found the case not proven. the appeal court overruled 2 of the leading cases that would have proved the accused not guilty. the lord justice stated that incidents like this de recenti statements can be used for corroboration. CORROBORATION

Question 36

36. Gubinas v H.M Advocate [2017] HCJAC 59

Answer 36

5 bench decision sexual assault case. the accused had videoed the assault on their phone. the issue was, how the jury should be directed to approach that evidence. 2 contradictory cases were provided to help decide. in the end they deiced that the jury can look at digital evidence and make up their own mind. DIGITAL EVIDENCE.

Question 37

37. Lawrie v Muir 1950 JC 19

Answer 37

7 bench decision. involved a dairy using someone elses milk bottles, which was illegal. the milk marketing board would do checks at dairys to make sure they were using their own bottles. however, the accused hadnt signed up to the milk makreting scheme so they had no right to check her bottles, therefore although she was in the wrong, the eviddence was wrongfully obtained. IMPROPERLY OBTAINED EVIDENCE.

Question 38

*38. H.M Advocate v Chalmers 1954 JC 66

Answer 38

5 bench decision, a 16 year old boy gave a statement to police officers a few days after he was taken to the police station where he was cautioned and questioned but also cross examined him because they thought he was the murderer. he started crying and took the police to a field where the victims belongings where buried. he confessed saying the victim struck him so he killed him. he was taken to trial and convicted. he appealed and said his trial was unfair due to police practice as at the time of the interview he was already considered to be the perpetrator. CONFESSIONS.

Question 39

*39. Davie v. Edinburgh Magistrates 1953 SC 34

Answer 39

involved the use of explosives by workmen constructing a sewer, the pursuer alleged that the workmen damageed the walls of his house. the defender provided 3 experts evidence but each expert disagreed with each other. the judge rejected the experts opinions and found in favour of the pursuer. an appeal failed. EXPERT EVIDENCE.

Question 40

40. Sweet v. Parsley [1970] AC 132

Answer 40

a school teacher had rented out rooms to students for study. the students were caught smoking weed in the room and the teacher was charged under the management of premises that had been used for drug use. Legislation did not mention whether a mens rea was needed. strict liability not applied and she was not charged because it was a serious offence and could not be a strict liability offence. STRICT LIABILITY, PRESUMPTION AGAINST STRICT LIABILITY.

Question 41

41. Owens v H.M Advocate 1946 JC 119; 1946 SLT 227

Answer 41

the accused thought the victim was threatening him with a knife. Trial judge directed the jury that if the accused believed that his victim was threatening him with a knife and that belief was completely wrong,making an error then his plea of self defence to a charge of murder had to be rejected.Said he was acting in self-defence or thought he was and said he made an error as he was wrong. he thought he defended himself
Appeal court said it was misdirection saying the judge had got it wrong, judge said it
was accused’s fault - too bad for him. Owen’s conviction was quashed, and appeal court made clear that self-defence is made out when the accused establishes that he believed in danger in an attack. ERROR, ERROR MUST BE GENUINE.

Question 42

42. Brennan v H.M Advocate 1977 JC 38

Answer 42

the accused and his father got into an argument over the aesthetics of a pink floyd album cover wherein the accused stabbed his father multiple times and killed him. the accused had had 20-25 pints, a small amount LSD and a small sherry. he tried to argue at the trial that he was insane but would have had to prove that at the time of the crime he was so mentally disoriented that he had no idea what he was doing. court held that there comes a point in the spectrum of someones drinking that they would have to know that if they were to have any more they wouldnt be fully in control of their actions. voluntary intoxication is no defence. DEFENCES, VOLUNTARY INTOXICATION.

Question 43

43. Ross v H.M Advocate 1991 JC 210

Answer 43

the accused was charged with aggravated assault and attempted murder after lashing out at people at a party with a knife. he argued he should be found not guilty because his drink was spiked with LSD and temazepam and that he was in a state of frenzy. when the police arrived he had to be hekd back by them until the drugs wore and he was completely fine and normal again. he also had no prior convictions. until this case you couldnt use a state of semi-conciousness as a defence. AUTOMATISM, DEFENCES.

Question 44

*44. Thomson v H.M Advocate 1983 JC 69

Answer 44

the accused was convicted of armed robbery after driving the getaway van. he said he only took part because he was threatened with a gun. he claimed to have been hurt on the hand by the actual robber. the case was left to the jury that decided they had to apply humes 4 criteria. COERCION, DEFENCES.

Question 45

45. R v Dudley and Stephens (1884) 14 QBD 273

Answer 45

(english case so not an authority in scotland but there is a lack of scottish cases on necessity)
the accused and 2 others were cast adrift on a boat for 20 days surviving on tinned turnips, after several days without food the accused killed the cabin boy and ate him. they were upfront about killing the cabin boy and eating his flesh. they were guilty of murder in the House of Lords, it was stated that its incorrect to say there was necessity to kill the cabin boy. they were both found guilty of murder but only spent 6 months in prison before being allowed to go. NECESSITY, DEFENCES.

Question 46

46. Moss v Howdle 1997 SCCR 215

Answer 46

accused was speeding on a motorway doing excess of 100mph, he argued necessity because his passenger cried out in pain and he thought that the passenger was having a heart attack and needed to get to a service station. when they got there it was discovered he simply had a cramp in his foot. not necessity, needed to be imminent danger of death or great bodily harm. NECESSITY,DEFENCES.

Question 47

47. H.M Advocate v Anderson (2006, unreported)

Answer 47

the accused had run someone over whilst escaping from a group of youths that were attacking the car he and his son were in. he argued that he should be allowed to plead necessity as it was the only way to escape the danger. the youth was run over even though he wasn’t attacking at the time. necessity is a defence in this case. NECESSITY, DEFENCES.

Question 48

48. H.M Advocate v Doherty 1954 JC 169

Answer 48

the accused was charged with culpable homicide for stabbing a man with a bayonet. tried to argue self-defense claiming that the victim attacked him first with a hammer. this defence was rejected and he was convicted. SELF DEFENCE, DEFENCES.

Question 49

49. Fenning v H.M Advocate 1985 JC 76

Answer 49

the accused and victim had been friends, the victim accused fenning of having an affair with his wife whilst waving a fishing knife around. fenning reacted by picking up a boulder and “walloped” him on the head multiple times. fenning tried to argue self-defence but got convicted of murder.SELF DEFENCE, DEFENCES.

Question 50

50. Thomson v H.M Advocate 1986 SLT 281

Answer 50

the accused was defrauded by his business partner and was in financial ruin. tried to talk with partner , this turned into a verbal argument at the office. the partner laughed and said “i dont care” when Thomson made him aware of his position, thomson got up to leave when he claims he was physically restrained by his partner, he is then said to have snapped and stabbed the partner with a knife 11 times. convicted of murder. PROVOCATION, DEFENCES.

Question 51

51. Gillon v H.M Advocate 2007 JC 24

Answer 51

accused commit murder by striking the victim on the head and body with a spade. this was a 5 bench decison to decide whether the test in drury applied to non-sexual cases. the court said no, drury test is only about sexual infidelity. PROVOCATION, DEFENCES.

Question 52

52. Donnelly v H.M Advocate [2017] HCJAC 78

Answer 52

the accused stated that seeing their friend being assaulted made them so angry that they snapped and acted out of provocation. the courts said that the facts in case didnt satisfy the requirements for provocation but left the question open as to whether you could use provocation as a defence for acting on behalf of a third party. PROVOCATION, DEFENCES.