Offences Flashcards
Types of Causation
FACTUAL - prove that the result would not have happened “but for” accused’s actions.
LEGAL - prove that the accused’s actions were the direct cause - sometimes the actions may be too remote or their will be a break in causation.
Incitement
ACTUS REUS = committing an act that encourages a crime.
MENS REA = seriously intending to encourage the crime, or aware of likelihood -Baxter v HMA
Incitement is compltete as soon as the offence takes place.
CONSPIRACY
ACTUS REUS = agreement between two+ to commit a crime - Maxwell v HMA
MENS REA = eriusly intend to encourgae crime, or aware of likelihood.
Agreement does not need to be explicit, can be inferred from actions.
Offence is complete when they agree on the crime, no need to do it.
Not a defence to say it was impossible to commit - still had intent.
ATTEMPT
ACTUS REUS = carrying out an act that is more than prepatory for crime.
MENS REA = intention to do crime.
CPSA 1995
ART AND PART - PARTICIPATION
Watching is not participation - HMA v Kerr
Forms include:
- Counsel and instigation - Bazter v HMA
- Provision of materials - R v Bainbridge
- Actual physical assistance - can be spontaneous too.
Assisting after the crime is not participation - HMA v Igoe
ART AND PART - COMMON PURPOSE
Does not have to be explicitly stated - implied - Coleman v HMA
Accused is not lmiable for something that goes beyond the common purpose if it is not foreseeable - Shephard v HMA
RECKLESS INJURY
ACTUS REUS = causing injury to another - HMA v Harris
MENS REA = recklessness or utter disregard to consequences - W v HMA
RECKLESS ENDANGERMENT
ACTUS REUS = act that endangers others.
MENS REA = recklessness, or utter disregard of the conseuences - Normand v Robinson
MURDER
ACTUS REUS = killing the victim.
MENS REA = wicked intention to kill or wicked recklessness - Drury v HMA
Life starts when child has cried and breathed - HMA v Scott
WICKED RECKLESSNESS - test
Drury v HMA
1. intention to injure
2. in a manner that might have resulted in death
3. accused did not care whether victim lived.
CULPABLE HOMICIDE
voluntary, unlawful, lawful
Voluntary culpable homicide - if a murder case is diminished.
Unlawful culpable homicide - assault which results in death but not murder -Bird v HMA
Lawful cuplable homicide - when A recklessly causes B’s death - Transco v HMA
Recklessness is defined as “gross, or wicked, or criminal ngeligence” - Paton v HMA
THEFT
ACTUS REUS = appropriaton of another’s property without their consent - Black v Carmichael
MENS REA = an intention to deprive (indefinitely or temporarily) - Fowler v O’Brien
EMBEZZLEMENT
Dishonest appropriation of entrusted property - accused was originally trusted to deal with this money as trustee, agent etc - HMA v Laing
MENS REA = requires dishonesty.
ROBERRY
ACTUS REUS = theft accomplished by personal violence - Cromar v HMA
MENS REA = intention to deprive, with violence used.
EXTORTION
Consists of a command backed by a threat
ACTUS REUS = commanding someone to do something to gain an advantage through threat.
MENS REA = intending to threaten them and gain advanatage.
Black v Carmichael
FRAUD
Dishonestly made statement, in order to cause a practical result - no requirement of economic conponent.
ACTUS REUS =
1. false pretence - Richards v HMA
2. a definite practical result - Adcock v Archibald
3. a causal link between these
MENS REA = intend, recklessness is not enough - Mackenzie v Skeen
RESET
Dishonest possession of goods obtained by another, knowing they were obtained thorugh theft, robbery, fraud or embezzlement.
ACTUS REUS = posession of the stolen items, or knoweldge that they are stored on your property.
MENS REA = knowledge that the items were obtained illegally - Latta v Herron
MALICIOUS MISCHIEF
Intentionally damaging, destroying or causing financial damage to another person’s property.
MENS REA = recklessness - Wade v Robertson
Damage or destruction to corporeal proeprty - damage can be minor - Wade v Robertson
Interfering with property so as to cause economic loss - HMA v Wilson
VANDALISM
ACTUS REUS = destroying or damaging another person’s property.
MENS REA = willfully or recklessly
Criminal Law Consolidation Scotland Act 1995
FIRE-RAISING
Different to vandalism -
* wilful = setting fire to property intentionally.
* culpable and reckless = setting fire recklessly, utter disregard.
* Byrne v HMA
BREACH OF THE PEACE
ACTUS REUS = conduct severe enough to cause alarm to ordinary people - Smith v Donnelly
MENS REA = no explicit mens rea.
Actual alarm is not required, objective test - Montgomerie v PF Kilmarnock
Conduct can be carried out in public, must have reasonable risk of being discovered - Jones v Carnegie
IMPROPER USE OF PUBLIC ELECTRONIC COMMS
Communications Act 2003
Includes sending an offensive/indecent message online, persistently using public comms - or cause this.
MENS REA = intention to cause annoyance, inconvenience or anxiety.
Objective test - reasonable person reaction - Sutinye v PF Glasgow
HATE CRIME
HCPO(S)A 2021
Covers any crime motivated by malice towards a protected characteristic.
Can be an aggravation to another offence if malice is discovered.
STRUCTURE OF DEFENCES
alibi, error of law
Alibi = at the time of the offence, accused was not at the place libeled - time+place specified - HMA v Laing
Ignorance of the law is not a defence - Clark v Syme
DEFENCES - SELF-DEFENCE
Complete defence.
Accused acted to protect themself or third party - HMA v Carson
REQUIREMENTS - HMA v Docherty
1. imminent danger
2. no reasonable escape opportunity
3. proportionate force
DANGER
Attack must be in progress/about to happen.
ESCAPE
Must not put you at risk - McBrearty v HMA
FORCE
Can be lethal to prevent rape or death or great harm - McCluskey v HMA
DEFENCES - PROVOCATION
Murder changed to culpable homicide.
REQUIREMENTS - Capolo v HMA 2017
1. recognised provoation (violence or infidelity)
2. loss of self-control due to this - IMMEIDATE retaliation.
3. results in either (a) a response that is not disproportionate for violence, or (b) a response expected of ordinary person for infidelity.
VIOLENCE
Accused must not be disproportionate - Gillon v HMA
Cumulative provocation does not count - McKay v HMA
INFIDELITY
Do not need to catch in act - Hill v HMA
Couple need to have relationship of fidelity - McKay v HMA
DEFENCES - NECESSITY
Complete defence.
Plea that a crime was done because it was least harmdul option.
REQUIREMENTS:
1. immediate danger of death/great harm - *Moss v Howdle *
2. no reasonable alternative - *Moss v Howdle *
3. conduct must have reasonable chance of removing danger - LAR 2000
DEFENCES - COERCION
Complete defence
Plea that crime was done because of a threat of harm.
REQUIREMENTS - Thomson v HMA
1. immediate threat of death/great harm.
2. ‘ordinary person’ ?
3. accused must not have risked coercion.
Threat does not have to be personal - HMA v Docherty
DEFENCES - INTOXICATION
Voluntary intoxication is not a defence - Brennan v HMA
DEFENCES - DIMINSHED RESPONSIBILITY
Partial defence - murder changed to culpable homicide.
REQUIREMENTS
1. Abnormality of the mind
2. this causing impairment of ability to determine/control actions.
Unfit for trial if their disorder means that cannot understand nature of charge or evidence, or cannot participate with legal rep.
Decided by judge before trial - CPSA 1995
Need a medical report for medical unfitness - Murphy v HMA
If plea is allowed, will examine facts and then maybe go to trial later.
DEFENCES - MENTAL DISORDER
Complete defence.
REQUIREMENTS - CPSA s51
1. Accused was suffering from a mental disorder.
2. Disorder meant they were unable to appreciate wrongness.
Means any mental illness, personality disorder or learning disability EXCEPT psychopaths - Mental Health (Care and Treatment) SA 2003
If plea is successful, court will examine facts and may make a disposal - s57
DEFENCES - AUTOMATISM
Complete defence.
Plea that the accused was acting while unconscious.
REQUIREMENTS - Ross v HMA
1. A total alientation of reason - “unable to appreciate the nature and wrongness”.
2. Caused by external factor - drink spiked, concussion etc.
3. Which the accused was not ‘bound to foresee’, otherwise defence is ruled out.
ASSAULT
ACTUS REUS = an attack
MENS REA = intention to attack, or to place them in fear or an attack - LAR 1992
Can also be attacks producing fear - Atkinson v HMA
Intention can be transferred - Connor v Jessup
DEFENCES
Consent is not a defence - Smart v HMA
Reasonable chastisement is not a defence - Children Equal Protection Act 2019
ASSAULT - AGGRAVATIONS
Aggravated by:
* Using a weapon
* Severe injury or danger to life
* Committed in the victim’s home
* Intention to do a secondary crime like rape/rob.
* Hate crime
* Abuse by partner or ex-partner
OMISSIONS LIABILITY
No general duty to intervene in a crim - HMA v Kerr
SOME SHOULD
Special or Personal Relationship
* Parent/child - Bone v HMA
* Spouse - R v Russel
* Siblings - R v Evans
