Part 2: Foundations of Criminal Law

Question 1

What is the concept of “Actus non facit reum nisi mens sit rea”?

Answer 1

“Actus non facit reum nisi mens sit rea” means an act is not criminal unless the mind is criminal too, i.e., the intention (mens rea) is required for all common law offences and many statutory offences, with some exceptions (see week 8 for more details).

Question 2

What is the difference between mens rea and actus reus?

Answer 2

Mens rea refers to the mental state of the offender at the time of the crime (their intention), while actus reus refers to the physical act of committing the crime.

Question 3

What is actus reus?

Answer 3

Actus reus is the forbidden situation or physical element of a crime. This can include:

Acts - The physical actions committed.
Omissions - Failing to act when required.
State of affairs - Rare situations, such as a statutory offence where it’s illegal to be drunk and incapable of caring for yourself in public.

Question 4

What are conduct crimes in criminal law?

Answer 4

Conduct crimes are crimes where only the forbidden conduct needs to be proven, without the need to prove harmful consequences. For example, someone accused of dangerous driving doesn’t need to prove harm, just the dangerous driving itself.

Question 5

What are result crimes in criminal law?

Answer 5

Result crimes require proof that the crime caused or resulted in consequences. For example, in a murder charge, it must be proven that someone was killed. If the victim survives, the accused cannot be charged with murder, only attempted murder.

Question 6

What is the link between conduct and result in criminal law?

Answer 6

In result crimes, the link between conduct and the result is crucial. The cause of the result must be proven; for example, in a murder case, the accused’s actions must be shown to have caused the death of the victim.

Question 7

What was the ruling in Hogg v Macpherson (1928 JC 15)?

Answer 7

In Hogg v Macpherson (1928 JC 15), the High Court of Justiciary (3 judges) ruled that there was no voluntary act. The driver of a horse-drawn carriage was accused of knocking over a lamp, but the court found that it was the wind, not the driver’s actions, that caused the incident. Therefore, the driver was not liable as there was no actus reus or mens rea present.

Question 8

What was the ruling in R v White [1910] 2KB 124 (CA)?

Answer 8

In R v White [1910] 2KB 124, the defendant White attempted to kill his mother by poisoning her drink. However, the drink was untouched, and medical evidence showed that the mother’s death was due to a heart attack. Since there was no causal link between White’s actions and her death, he was found not guilty of murder. He had the mens rea (intent to kill), but there was no actus reus, making it a case of attempted murder, not murder.

Question 9

What is the significance of HM Advocate v Kerr and Others (1871) 2 Couper 334?

Answer 9

In HM Advocate v Kerr and Others (1871), the High Court of Justiciary ruled on the general rule that there is no liability for omissions unless there is a duty to act. In this case, Mr. Donald did not participate in the rape but watched the incident and did nothing to intervene. He was charged alongside the rapists but acquitted on appeal because he had no legal duty to intervene. Although it was immoral to watch, it was not a criminal offense. Therefore, he had no liability for the omission.

Question 10

What are some exceptions to omissions in criminal law?

Answer 10

There are several exceptions to omissions where a person may be held liable for failing to act, including:

1.Statutory Duty – e.g., road traffic legislation (failure to display a tax disk or failing to repair tires can be an offence).

2.Contractual Duty – e.g., a babysitter has a duty to care for children, or a lifeguard has a duty to save people. Failure to act can lead to criminal consequences.

3.Family Relationships – Parents have legal duties, such as ensuring children receive necessary medical care.

4.Creation of a Dangerous Situation – If a person creates a dangerous situation and fails to remedy it, they can be held criminally liable for the crime that results.

Question 11

What are the different mental elements of mens rea in criminal law?

Answer 11

The mental elements of mens rea include:

Intention – The person aims to bring about a particular result.

Recklessness – The person is aware of the risk but chooses to take it.

Negligence – The person fails to be aware of a risk that they should have been aware of.

Question 12

What is the difference between subjective and objective mens rea?

Answer 12

Subjective mens rea focuses on what the accused person actually knew and intended. It asks if they knew the result would occur and if it was their intention to bring it about.

Objective mens rea is assessed using the reasonable person test, asking if a reasonable person would have foreseen the risk. It is generally easier to prove objective mens rea than subjective mens rea.

Question 13

What is the difference between mens rea and motive?

Answer 13

Mens rea is the intention to commit a crime, whereas motive is the reason why the crime was committed. They are not the same. A person’s motive doesn’t necessarily affect their mens rea.

Question 14

What was the ruling in Quinn v Lees (1994) SCCR 159 regarding motive and mens rea?

Answer 14

In Quinn v Lees (1994) SCCR 159, the accused was charged with assault for telling a dog to attack 3 boys, claiming it was a joke. The appeal court upheld the conviction, ruling that even though the accused’s motive was a joke, his mens rea (intent to cause injury) was present, making it assault.

Question 15

What was the ruling in Paton v HM Advocate (1936) JC 19 regarding recklessness?

Answer 15

In Paton v HM Advocate (1936), the accused was charged with murder after driving at high speeds, displaying a reckless disregard for the consequences. The High Court of Justiciary held that criminal negligence was the same as intent for the purpose of murder charges, even though the accused did not intend to kill.

Question 16

What is the difference between recklessness and negligence in criminal law?

Answer 16

Recklessness is an utter disregard for the consequences of an action. A reasonable person would have recognized the risk but the accused chose to take it anyway.

Negligence occurs when a person fails to be aware of a risk that they should have been aware of. Negligence is required in crimes like involuntary culpable homicide and culpable injury.

Question 17

What happens if both actus reus and mens rea cannot be established in a case?

Answer 17

If both actus reus (the physical act) and mens rea (the mental state) cannot be established, the result will likely be an acquittal, as both elements must be proven for a conviction.

Question 18

What was the ruling in Thabo Meli v R [1954] WLR 228 regarding continuous acts?

Answer 18

In Thabo Meli v R [1954] WLR 228, a group of individuals assaulted a victim and threw what they thought was a dead body off a cliff. However, the victim was not dead and died later from exposure. The defense argued they no longer intended to kill since they thought the victim was already dead. The Privy Council held that the act of throwing the victim off the cliff was part of a continuous act, and since they had the intent to kill at the start, it was still considered murder.

Question 19

What was the ruling in Roberts v Hamilton (1989) JC 1989 SLT 399 regarding transferred intent?

Answer 19

In Roberts v Hamilton (1989) JC, the accused attempted to hit B with a snooker cue but missed and instead struck her boyfriend. Although the accused did not intend to hurt the boyfriend, the court ruled that intent to injure someone was transferred. Therefore, the accused was held liable for the injury to the boyfriend under the concept of transferred intent.

Question 20

What is meant by proximate causation in criminal law?

Answer 20

Proximate causation means that the cause of the result must be directly related to the accused’s act or omission. The causal factor must be close enough to the result for the accused to be held responsible.

Question 21

Why is proving a causal link important in criminal law?

Answer 21

Proving a causal link between the accused’s actions and a particular result is essential in many crimes, such as:

Fraud – Linking false pretenses to the victim’s actions.

Aggravated assault – Proving that the accused’s conduct caused the aggravated assault.

Murder and culpable homicide – Demonstrating that the accused’s actions caused the victim’s death.

Question 22

What was the ruling in HM Advocate v Robertson and Donoghue (1945) regarding “taking the victim as you find them”?

Answer 22

In HM Advocate v Robertson and Donoghue (1945), the accused struggled with an elderly shopkeeper, shaking him, which triggered a fatal heart attack due to the victim’s weak heart. The court applied the “take the victim as you find them” rule, holding that the violence was the cause of the death. The involuntary culpable homicide conviction was upheld, and the accused was held fully responsible for the victim’s death, even though the victim had a pre-existing condition.

Question 23

What was the ruling in R v White regarding causation?

Answer 23

In R v White, the accused attempted to poison his mother, but she died from a heart attack instead, not from the poison. The court found there was no causal link between the poisoning and the death. The court applied the “but for” test, finding that although the accused intended to kill her, he was guilty of attempted murder, not murder, as the poison was not the actual cause of death.

Question 24

What was the significance of McDonald v HM Advocate (2007) regarding the victim’s contribution to their own death?

Answer 24

In McDonald v HM Advocate (2007), two accused seriously assaulted a victim and locked him in a third-floor flat. The victim tried to escape by climbing out of a window and fell to his death. Although the victim’s actions contributed to his own death, both accused were still convicted of culpable homicide because the assault was considered a contributing cause of the death. The court followed the principle of taking the victim as you find them, even though the victim was under the influence of drugs at the time.

Question 25

What is malregimen in the context of causation?

Answer 25

Malregimen refers to bad medical treatment, where negligent or incorrect hospital treatment leads to the victim's death. In such cases, the medical treatment may be considered a cause of the death, and the accused may still be held liable, depending on the circumstances and causality.

Question 26

What is Art and Part Liability in criminal law?

Answer 26

Art and Part Liability means that when people act as a group, the entire group is responsible for the actions of each and every person involved. Each accused is equally guilty and responsible for the whole actus reus (physical act) of the crime, whether planned or spontaneous. It applies to two or more people, and each person is liable for the entire crime, not just their part.

Question 27

Can someone be found guilty of Art and Part Liability without being involved in some part of the offense?

Answer 27

No, a person cannot be found guilty of Art and Part Liability unless they are involved in some part of the crime. The individual must have either a prior plan or a spontaneous agreement to commit the crime.

Question 28

What was the ruling in HM Advocate v Fraser & Rollins (1920) JC 60 regarding Art and Part Liability?

Answer 28

In HM Advocate v Fraser & Rollins (1920), the court held that all three involved were liable for the victim’s murder. Miss White lured the victim to a park where two associates attacked, robbed, and killed him. Even though the plan was just to rob, the murder was foreseeable, and because White was involved in the prior agreement, all three were equally liable for the murder under Art and Part Liability.

Question 29

What did the case HM Advocate v Gallacher (1951) C 38 illustrate about spontaneous action and Art and Part Liability?

Answer 29

In HM Advocate v Gallacher (1951), three people were convicted of murder after attacking a victim, mistaken for a circus member, during a feud. There was no prior agreement, but the court found that they were animated by a common principle and had spontaneously come together to commit the crime. The court held them liable for murder under Art and Part Liability.

Question 30

How did the case Boyne v HM Advocate (1980) SLT address the concept of Art and Part Liability when someone steps outside the common plan?

Answer 30

In Boyne v HM Advocate (1980), several people were involved in an assault and robbery. One of them killed the victim with a stab wound. The court ruled that if the rest of the group knew about the knife or if the attack continued after the knife was drawn, they could be liable for Art and Part Liability. However, if the group didn’t know about the knife, only the person who used it was liable, as they stepped outside the common plan.

Question 31

What is an attempted crime?

Answer 31

An attempted crime occurs when the accused has gone from the preparation stage to actual perpetration (commitment) of the crime but has not completed the act. The actus reus (physical act) of the crime is usually missing, but the mens rea (mental state) is present.

Question 32

What was the ruling in HM Advocate v The Camerons (1911) 6 Adam 465 about attempted crimes?

Answer 32

In HM Advocate v The Camerons (1911), Mr. and Mrs. Cameron intended to commit insurance fraud by pretending to be robbed but did not submit the insurance claim. The court held that the jury would decide based on a value judgment, and even though the crime was not fully completed (no claim submitted), they were convicted for the attempted fraud.

Question 33

What did Doherty v Brown (1996) JC 48 establish about impossible attempts?

Answer 33

In Doherty v Brown (1996), the accused attempted to possess ecstasy with intent to supply, but the tablets were fake. The court held that an attempted crime could still be charged, even if the crime was impossible, meaning the defendant was guilty of attempting to commit an offense that could not be completed due to the circumstances.

Question 34

What is conspiracy in criminal law?

Answer 34

Conspiracy is a crime on its own, where two or more people agree to commit a crime with the intention of carrying it out. The actus reus (physical element) is the agreement between the parties, and the mens rea (mental element) is the intent to commit the crime they have agreed upon.

Question 35

Can someone be charged with conspiracy even if the crime has not been completed?

Answer 35

Yes, a person can be charged with conspiracy in three situations: If a crime has been carried out in pursuance of the conspiracy, they can be charged with both conspiracy and other crimes. If no other crime is charged, they can be charged with conspiracy on its own. If the conspiracy charge substitutes an attempted crime, for example, when people agree to commit a crime but don’t reach the perpetration stage—this is too early for an attempt charge but can still be prosecuted as a conspiracy.

Question 36

What was the ruling in West v HM Advocate (1985) SCCR 248 regarding conspiracy?

Answer 36

In West v HM Advocate (1985), two individuals were loitering outside a bank with weapons and were charged with conspiracy to assault and rob the bank. Even though they did not enter the bank and there was no attempt, the court established that conspiracy could still be charged based on their prior agreement to commit the crime. The key to proving conspiracy was the agreement between the parties.

Question 37

What do you need to prove in a conspiracy charge?

Answer 37

To prove conspiracy, you only need to establish the agreement between two or more people to commit a crime, along with the intention to carry it out. There is no need for the crime to be carried out or completed.

Question 38

What is incitement in criminal law?

Answer 38

Incitement is when someone invites another person to enter into a conspiracy to commit a crime, with the intention that the other person will carry out that crime. Actus reus (physical element): Inviting someone to commit the crime. Mens rea (mental element): The intention that the other person will actually carry out the crime.

Question 39

Can someone be charged with incitement even if they don't give explicit instructions?

Answer 39

Yes, in Baxter v HM Advocate (1997), it was held that incitement could still be charged even if the accused did not explicitly instruct the other person to commit the crime. It was enough that the accused was serious about inviting someone to commit the crime, even if the details were not finalized. The court found that the intent was clear.

Question 40

What was the ruling in Baxter v HM Advocate (1997) regarding incitement?

Answer 40

In Baxter v HM Advocate (1997), a dispute arose between tenants of a tenement flat over refurbishment. One tenant was preventing the process. The other tenants incited someone to kill the obstructing tenant. Although the accused did not instruct the killer explicitly, they were found guilty of incitement to murder because they were serious about committing the crime. It was enough that the accused intended to carry out the crime.

Question 41

What is required to charge someone with incitement?

Answer 41

To charge someone with incitement, you need to show that they invited someone else to commit a crime and intended that the other person would carry out that crime. It is not necessary to have final details or explicit instructions; the seriousness of the invitation is enough.