Scots Criminal Law and Evidence Flashcards
1
Q
Name the 3 divisions of actus reas.
A
States of affairs, overt acts, omissions.
2
Q
Name and describe the case illustrating the thin skull rule.
A
H.M. Advocate v. Robertson and Donoghue. 2 accused individuals break into store and struggle with elderly shopkeeper. He suffered a heart attack and died. Held that despite pre-existing health conditions, they were still liable for his death as you must take people as you find them.
3
Q
Transferred intent - name the case and the rule.
A
Can only be transferred to offence requiring the same mens rea. Roberts v Hamilton (woman tries to hit person with snooker cue and misses and hits someone else). Charged with assault even though she lacked intent.
4
Q
What is the mens rea for involuntary lawful act culpable homicide?
A
Recklessness.
5
Q
Difference between subjective and objective recklessness?
A
Subjective recklessness – a person who knowingly takes a risk.
Objective recklessness – person did not know her behaviour involved such a risk but ought to have known.
6
Q
Which attempted crime case does - “… the mere intention to commit a crime is not criminal– some act is required, and we do not think that acts towards committing the crime are indictable. Acts remotely leading to the crime are not considered to be attempts but acts immediately connected with it are.” come from?
A
HM Advocate v Camerons. Faked a robbery to claim for valuable pearl necklace.
7
Q
Name the case that considered the criminalisation of “states of affairs”
A
Ramsay v HM Advocate. Judge sentenced man for 4 years after he confessed to possession a small quantity of heroin. Judge justified this as it was a “serious case of addiction”. However, appeal court substituted the sentence to 2 years as addiction is not a crime.
8
Q
Describe the two differences between a state of affairs and an act.
A
Acts tend to be short in duration, states can be long-lasting or even permanent.
Acts involve choice of the individual, whereas states of the individual do not.
9
Q
What do overt acts generally require to be prosecutable?
A
Voluntary actions.
10
Q
Describe the case of Hogg v Macpherson.
A
Horse-drawn van blown over by wind, van hit and flattened lamppost. Council was given power to demand compensation for damage, however since breaking the lantern was not an act, no compensation could be demanded.
11
Q
In terms of overt acts, what is the exception to the voluntary action rule?
A
In cases where there was an overt act but the behaviour was unvoluntary, it is highly unlikely the reasons for the behaviour will exonerate the crime. It is not necessary for the behaviour to be desired or positively embraced. For conduct to be voluntary it is enough that they can control it to some extent.
12
Q
What is the crime of omission?
A
Failure to do something constitutes a crime. Examples – failing to obey a traffic sign
13
Q
What are crimes of commission by means of omission?
A
Commission = actus reas of the result. Omission = what was omitted and becomes the cause of the result.
14
Q
Is there any legal duty to prevent or save others from crime? Name relevant case.
A
No duty to prevent or save others from crime. – HM Advocate v Kerr. Several youths involved in assaulting a girl in a lane with intent to rape her. A youth accused, Donald, watched and permitted the action but did not partake but was charged with them. later acquitted as there was no legal requirement for him to intervene.
15
Q
Name the circumstances in which an omission would be an offence.
A
- By statute (law says you must do this, and if you don’t you’re committing an offence.)
- When accused is required to act a certain way due to employment or contract.
- Informal agreement to look after someone that imposes a duty of reasonable care.
- Family relationships (failing to feed children).
16
Q
Explain the case of William Hardie (omissions).
A
He was a poor-law inspector required to acquaintance himself with the circumstances of people in receipt of parish relief (benefits due to low or no income) and respond to requests for further sums. One woman made many requests, Hardie did not investigate and she died of starvation. He was charged with culpable homicide because of the duties imposed by his job.
17
Q
Describe the case of Paterson v Lees (omissions).
A
Appellant convicted of “shameless indecency” when babysitting 9 and 11-year-old for showing them a film of indecency and obscenity. Quashed in court of appeal as he did not show them, he just failed to switch it off when the children pressed play. He was under no legal duty to prevent the viewing of the film.
18
Q
Describe the case of Law Hospital NHS Trust v Lord Advocate (omissions).
A
No need to provide treatment that is futile (pointless). Man on life support and his ‘treatment’ was artificial nutrition and hydration. Futile because was not going to save or improve his condition, and the case allowed passive euthanasia as long as the test set out in the case was followed and achieved.
19
Q
Describe the case of R v Gibbins and Proctor (omissions).
A
Proctor and her boyfriend Gibbin’s were charged for the murder of Mr Gibbin’s 7-year-old daughter. They neglected and did not feed her, causing her death. Gibbins liable as law imposes the duty on a parent, and by taking on a mothering role (receiving benefits to feed her and helping to raise her) Proctor was also charged.
20
Q
Describe the case of R v Instan (omissions).
A
Woman moved in with her aunt but failed to provide her with medical care or food, and the aunt died. Helping the aunt was a voluntary duty of the niece and she was charged with manslaughter (in Scotland it is culpable homicide) for living at her aunt’s expense.
21
Q
Describe the case of Bone v HM Advocate (omissions).
A
Child murdered by mother’s boyfriend. Mother initially convicted of culpable homicide for failing to protect the child. Later quashed and ruled that she could not have reasonably intervened to prevent the assault.
22
Q
How do you establish a causal link in fraud cases?
A
- Must show a false pretence was made.
- Must show that it was the false pretence specifically that caused the victim to do something.
23
Q
How do you establish causation in an assault case? (When trying to prosecute for an aggravation)
A
Accused can only be convicted of an aggravation if the causal link between the charge and aggravation can be established.
Must prove the assault is what caused the permanent disfigurement.
24
Q
How do you establish causation in culpable homicide or murder cases?
A
- Accused must cause death to victim.
- Irrelevant if victim was already close to dying before the accused attacked.
25
Describe the case of HM Advocate v Robertson and Donoghue.
2 accused individuals break into store and struggle with elderly shopkeeper. He suffered a heart attack and died. Held that they were still liable for his death as you must take people as you find them. Thin skull rule - you assume the risk of all outcomes.
26
What is the 'but for test'?
The accused’s conduct does not have to be the only cause or even most substantial cause to death or harm. 'But for' the accused actions, she would still be alive.
27
Describe the case of R v White.
Son poisoned mums drink to attempt to kill her, however most left untouched and she died. No causal link as the mother died of a heart attack, not her poisoned drink.
28
Define novus actus interveniens.
A new, intervening act. Usually breaking the causal chain.
29
Describe the case of Mcdonald v HM Advocate.
Victim was seriously assaulted by the two accused and then locked in his third floor flat. There was no telephone in the flat and the victim climbed out in an attempt to escape and fell to his death. He was a drug addict that was high at that point. Accused charged with culpable homicide. Appeal as only one of them locked the door, so other should be freed. Assault was a contributing factor, and his disoriented state means that his voluntary act did not break the chain.
30
Define mens rea.
Summarises all of the mental thought processing and decision-making necessary to their corresponding offences.
31
Define the 3 aspects of intent.
Intent is the willing to bring something about. Cannot intend to do something that is impossible. Can intend to do something without desiring the consequence.
32
Describe the case of Roberts v Hamilton.
Woman tries to hit man with snooker cue, instead misses and hits somebody else. Despite her lack of intent to hit the person she hit, it did not matter, and she could still be charged. Transferred intent.
33
How far can transferred intent go?
Can only operate with an offence requiring the same mens rea, such as the crime above. Cannot be transferred to a different offence requiring different mens rea. E.g., hitting a passer-by with a stone when trying to throw it at a shop window to break it and steal. Intention to damage property, not cause physical injury.
34
Describe the case of Thabo Meli v R.
Appellants appealed their convictions for murder, claiming necessary elements were absent. They assaulted the victim and rolled the body off a cliff as they thought he was died, but he died after the fall from exposure. Argued that the mens rea for murder was only present during the assault, not the act that caused his death as they thought he was already dead. However, court held it cannot be viewed that way and the murder was a series of continuous acts.
35
Describe the case of Quinn v Lees.
Accused charged with assaulting three boys by setting his dog on them. He gave evidence that he called the attack as a joke and did not intend for the dog to attack the boys. However, it was held that there was enough evidence that he did intend for the dog to attack the boys. “Joke” would only affect his motive and not his mens rea. Explains mens rea and recklessness.
36
Define negligence.
When conduct has failed to reach the standard of the reasonably competent person.
37
Define art and part liability.
Can be a spontaneous coming together or planned. Only liable for your own acts and omissions.
38
Describe the case of HM Advocate v Kerr.
Several youths involved in assaulting a girl in a lane with intent to rape her. A youth accused, Donald, watched and permitted the action but did not partake but was charged with them. later acquitted as there was no legal requirement for him to intervene and he did not partake or contribute. .
39
"Instigating a crime or giving advice on how to commit one can make you art and part as long as it contributes to inducing the crime." True or false?
True.
40
Describe the case of HM Advocate v Fraser and Rollins.
Accused enticed victim into a park where accomplices would jump out and rob. One man got killed. White was used as a witness so could not be prosecuted, but she could have been prosecuted if it was found reasonably foreseeable that someone would have died during a robbery. Doesn’t matter who actually killed them, each of the accused are liable for the outcome as they intended it.
41
Describe the case of HM Advocate v Gallacher.
Spontaneous coming together. Did not plan it, but still liable. Wasn’t a prior agreement but had a common motive. Feud between members of visiting circus and locals, locals decide to jump a presumed circus member. Mistakenly thought to be a member of the circus but wasn’t. Other members of the public joined in, and he died. All found criminally liable.
42
You can be art and part liable for the actus reas if someone stepped outside the common plan. True or false?
False.
43
Describe the case of Boyne v HM Advocate.
Assault and robbery, prior planning of the group. Victim killed by stab wound inflicted by one of the assailants. If he intended to kill, then he’s guilty. Is the rest of the group art and part liable? If the group knew he had a knife and it was likely to be used, then they are all liable. If you can’t find that and the rest of the group stopped, then the rest are not liable. Others were found not liable.
44
From what stage of preparation to perpetration is attempted murder prosecutable?
As soon as the 'trigger is pulled'. Not before that.
45
Describe the case of HM Advocate v Camerons.
When preparation and perpetration are successful. Accused faked a robbery to claim insurance money for valuable pearl necklace. Sent a telegram to insurance company to say they’d been robbed. Deemed a fraudulent attempt to claim, and court deemed they found that the couple had gone far enough from preparation to perpetration to be convicted of attempted fraud.
46
Describe the case of Docherty v Brown.
Impossible attempts. He was charged possession and intent to supply drugs. He thought he had bought drugs; however, they were just chalk tablets. Despite him not actually possessing drugs, he thought he did and displayed motive to sell. ‘Although what you’re attempting is impossible, you can still be charged for trying to do it.’
47
What are the steps in the test used to establish a conspiracy offence?
- An agreement between two or more persons to commit a crime or crimes, intending to carry out that crime(s).
- Where a specific crime has been carried out in pursuance of a conspiracy / where no other specific crime is charged / where a charge of conspiracy is a substitute for a charge of ‘attempt’.
- All that’s needed for a conspiracy charge is two or more people agreeing to commit a crime.
48
Decsribe the case of West v HM Advocate.
Appellant charged with conspiracy to assault and rob. Found outside a bank with his friend suspiciously and possessed a scissor blade and a razor blade.
49
Define incitement.
Inviting another to enter a conspiracy or commit a crime, with the intention that the other will carry out that crime.
50
Describe the case of Baxter v HM Advocate.
– it is enough that the accused is serious. He asked how much a hitman would cost. No instructions given or agreed upon. He argued they did not make a deal however it was enough that he was seriously pursuing it.
51
Define the crime of murder.
Causing the death of another human being, having (wickedly) intended to kill or through “wicked recklessness”.
52
Describe the case of Drury v HM Advocate.
Established that wicked intent to kill is just as necessary as wicked recklessness. Killed girlfriend with a hammer after being discovered of committing adultery. Submitted that he killed under provocation. He was charged with murder as anyone else would have been criminally liable for reacting the way he did. If he was successful though, he would have been charged with culpable homicide.
53
Define wicked recklessness.
Complete indifference/disregard to the consequences.
54
Describe the case of HM Advocate v Purcell.
Driving drunk and on drugs, hit and killed a young boy. Court held that although it was high risk, that does not make it wickedly reckless. Charged with culpable homicide.
55
Describe the case of Petto v HM Advocate.
Set fire to flat and killed someone, so set fire to lower floor. This then killed another person on the second floor. He had an indifference to life so was charged. “Where a person starts a major fire on the ground floor of such a building, the inevitable conclusion is, in my view, that he does so in the certain knowledge that those who are in the building, and especially those in the upper floors, will be at a grave risk of being killed or seriously injured in consequence of the fire. While there may be no desiderative element in the mind of such a person, his appreciation of the virtual certainty that such a risk will eventuate and his deliberate acceptance of it should, in my opinion, be rightly equiparated with an intention that such consequences should occur.”
56
In murder cases, can foreseeing the consequences of an action substitute for intent to kill?
Yes.
57
What is the difference between murder and voluntary culpable homicide?
(Murder but with provocation or diminished responsibility).
- Causing the death of another human being, with a mens rea that falls short of murder, but is nonetheless regarded as criminally culpable.
58
Can diminished responsibility automatically acquit accused of their crime?
NO, but it is capable of reducing criminal liability.
59
Define involuntary culpable homicide.
Causing the death of another human being, with a mens rea that falls short of murder, but is nonetheless regarded as criminally culpable.
60
Describe the case of Tomney v HM Advocate.
lawful act, involuntary culpable homicide. Unintentionally caused death. Walking around with a loaded shotgun, it went off and killed somebody. He did not break it in half to prevent it from firing. It was a lawful act as he was allowed to carry the gun. “Reckless disregard of the danger”.
61
Describe the case of HM Advocate v Robertson and Donoghue.
unlawful act, involuntary culpable homicide. Two young men were shaking an elderly shopkeeper, he had a heart attack and died. It was an unlawful act as the shaking counts as assault.
62
Three factors of road traffic homicide.
1. Causing death by dangerous driving.
2. Causing death by driving without due care and attention.
3. Causing death by driving while unlicensed, disqualified or uninsured.
63
Can you be prosecuted for murder under the Road Traffic Act 1960?
No, only culpable homicide. Mens rea for murder is almost always absent in road traffic accidents.
64
Describe the case of Transco PLC v HM Advocate.
– licensed to supply gas to houses. Fatal explosion and an entire family died; whole house destroyed. Indictment narrated the company shown a complete disregard to safety of the public. Company took a plea to relevancy. Can’t be guilty of culpable homicide because they are a company and can’t have actus reas. However, company aware of risks of erosion on their own gas pipes. People knew the pipes were corroding and leaking, and other people had complained of the smell of gas. The crown combined the multiple states of mind (negligence) rather than picking one face of the company. In this case the company won the case as multiple states of mind do not form a whole mens rea. However, it was shown that it would be possible to charge a company of culpable homicide.
65
Summarise section 1 and section 1.4 of the Corporate Manslaughter and Corporate Homicide Act 2007.
s.1 - guilty if their structure causes death, and amounts to gross breach of duty of care owed to the deceased.
s.1.4 - breach of duty of care is 'gross' if falls below reasonable standard. this offence is called corporate homicide.
66
Define assault.
An attack on the physical person of another done with intent to cause personal injury, (or intending to place that person in a state of fear or alarm for his/her safety).
67
Describe the case of John Roy.
Accused deliberately broke a window and a glass shard struck a girl’s eye. However, Roy was acquitted of assaulting her because he had not intended to injure her.
68
Is consent a defence to assault?
No.
69
Describe the case of Smart v HM Advocate.
. Accused and victim agreed to have a fight, and Smart got the upper hand inflicting a number of injuries. Claims he could not be convicted because the victim consented. Held that “attack on another person with intent to harm, even when the victim is willing to undergo the risk, does not prevent it from being a crime of assault.
70
Explain why doctors and boxers would not be charged with assault.
Must have evil intent – boxers and doctors do not have this so would not be charged. The requirement of evil intent helps separate injuries on public policy grounds – sport competitions, hospitals etc. however, if physical violence is found to be out with the scope of the sport, they could be charged.
71
Is consent to homosexual sado-masochistic activities a defence of assault?
Consent to homosexual sado-masochistic activities is also no defence, since it is not in the public interest for one to wound or cause bodily harm without good reason. Satisfying sado-masochistic desires to not constitute a good reason.
72
Name 6 examples of aggravated assault.
1. assault with intent to rape.
2. assault to the danger of life.
3. assault to severe injury.
4. assault to permanent disfigurement.
5. assault to the permanent impairment of sight.
6. assault with a weapon.
7. hamesucken.
73
Describe the case of HM Advocate v Harris.
The accused is a bouncer in a club and the majority of judges assumed he was entitled to manhandle people in order to eject them from the premises. However, it was held that there cannot be one law for bouncers and one law for the rest of the public.
74
Define the crime of theft.
The appropriation of property belonging to another without consent, and with intent to deprive the person of his or her property. ONLY COUNTS FOR TANGIBLE GOODS.
75
Describe the case of Black v Carmichael.
Accused (who was a private landowner) had wheel-clamped someone-else’s car, depriving them of its use. However, although it could not be driven the owner could still sell it, sit in it, store things in it and generally exercise all rights of ownership with a stationary vehicle. Despite it not being taken, the fact that the owner was deprived of one of its uses was enough to constitute theft.
76
Does a thief have to benefit from the taking for it to constitute theft?
NO.
77
In terms of theft, explain the meaning of moveable, corporeal, and in ownership of another.
a. Moveable – capable of being taken. Lifted or moved physically.
b. Corporeal – things that can be touched. Only exception is electricity which can be appropriated and therefore stolen.
c. In the ownership of another – must be taken without owner’s consent. You don’t have to know who the owner is, if you know it is not you and still decide to take and keep it, it is theft.
78
What are the rules to qualify for theft by housebreaking?
- Can be committed against any roofed building that is shut and fast against intruders.
- You must breach the security of the premises or gain entry by unusual means (window entering).
- A thief opening an unlocked door or turning a key left in a lock is NOT committing housebreaking.
79
Is conspiracy to housebreak a crime recognised in Scotland?
No.
80
Describe the case of Burns v Allan.
Accused was caught running away from a building carrying housebreaking tools. Burglar alarm had been activated because accused was trying to disconnect it. Due to the circumstances and evidence, he was charged.
81
What is theft by opening a lockfast place?
- Breaking into anything secured with a lock other than a building.
- E.g., cash register, drawer, box, or room.
- Commonly charged for stealing from a locked vehicle.
- The opening of the lockfast place MUST be for the purpose of theft.
82
Define reset.
Either possession or being privy to the retention of dishonestly or illegally obtained property. Has to have been obtained by someone else. Accused must know or be wilfully blind to the provenance of the property.
A person cannot be convicted of both theft and reset, however can be accused of theft and instead convicted of reset. Seen as a less serious crime.
83
Describe the case of Robert Finlay and Others.
. Goods thrown onto a bed in a room of the house of the accused. Accused then threw a cover over them and jumped out of the window. Charged with reset as his actions inferred he knew the origin of the items.
84
Define embezzlement.
Misappropriation of goods to which the accused had been entrusted, intending to deprive the owner of the goods.
85
What are the requirements of embezzlement?
a. Must hold the property with the victim’s consent.
b. Have the power to administer the property and a corresponding duty to account for those dealings.
c. Have commenced the dealing with the property as authorised.
d. And have failed to account to the victim for the property.
Mens rea of embezzlement – a dishonest intention to appropriate the victim’s property to the accused’s own use.
86
Describe the case of Guild v Lees.
The secretary of the world curling federation drew a cheque on an account which he was authorised to use when travelling abroad. He used the proceeds to pay his domestic electricity bill, which was deemed embezzlement because he used the funds in a way that they were not authorised.
87
Define fraud.
The obtaining of a practical result by means of a false pretence, intending to achieve that result.
False pretence can be express or implied, and anything that comes as a result of the successful deception is classed as fraud.
88
Describe the case of Adcock v Archibald.
Worker attaches his name tag to someone else’s larger pile of coal in pursuit of receiving his bonus, however the pile of coal was not going to receive a bonus anyways. However, despite the lack of the intended pecuniary loss, the owners were fraudulently induced to congratulate the accused. This was enough to constitute fraud.
89
Define robbery.
Theft (as previously defined) accomplished by personal violence or intimidation / threats of personal violence. However, assaulting someone AFTER taking their property is not robbery. Must be used to steal the item.
90
Define extortion.
The obtaining of property or some other advantage by means of illegitimate threats or demands, intending to deprive the owner of the property, or to gain the advantage.
If A is owed money by B and threatens to sue, this is not extortion as it is legitimate (entitled to the money and suing is a judicial remedy). However, if A threatens to sue B and threatens to break her legs, this would be attempted extortion as it is an unlawful threat.
91
Why is Black v Carmichael an example of an extortion case?
He unlawfully wheel-clamped his car and demanded payment.
92
Is vandalism prosecuted under statute?
Yes.
93
How is vandalism determined?
Criminal Law Consolidation Act (1) Subject to subsection (2) below, any person who, without reasonable excuse, wilfully or recklessly destroys or damages any property belonging to another shall be guilty of the offence of vandalism.
94
Define fire-raising.
Wilful fire-raising: deliberately setting property on fire. If you only intend to set fire to the dining table, you cannot be charged of wilful fire raising of the house. It would be culpable and reckless fire raising.
95
Describe the case of Byrne v HM Advocate.
Accused charged of wilful fire raising of a building by setting a piece of paper on fire and the building caught fire.
96
Define rape.
Without consent or reckless to consent inserts penis in mouth, anus or vagina s.1(1).
97
Can consent be withdrawn?
Yes. s.1(3)
98
Define consent.
Free agreement.
99
What is sexual assault by penetration?
s.2(1) Penetrating with a body part or anything else with no consent.
100
What is sexual assault?
s.3(1) without consent does anything mentioned in s.2.
101
Name 6 circumstances where sexual offences occur without free agreement.
s.12(2).
1. incapable of consenting due to alcohol or another substance.
2. agreement because of violence to them or others or threats of violence to them or others.
3. agreement because they are being unlawfully obtained.
4. agreement because they are mistaken as a result of deception to the nature or purpose of the conduct.
5. agrees because they are impersonating someone else.
6. when agreement comes from anyone other than the person involved.
102
Capacity while asleep or unconscious to consent?
- S14(2): “A person is incapable, while asleep or unconscious, of consenting to any conduct.”
103
Define incest.
Criminal Law Consolidation Scotland Act 1995.
- S1: “Any male or female person who has sexual intercourse with a person related to him in a degree specified in column 1 of the Table shall be guilty of incest ...”
104
What are the exceptions to being charged for committing incest?
- (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.
105
Define perjury.
Giving evidence which one knows to be false during judicial proceedings. Must be submitted during trial and must be definite and unequivocal. If ambiguous, accused may get benefit of the doubt.
Mens rea – the accused must know the statement they’re giving is false.
106
Define subornation of perjury.
Inducing someone else to commit perjury. The form of the inducement is irrelevant and the witness must actually give the statement to qualify for the crime.
107
Define breach of the peace.
Behaviour which is severe enough to cause alarm to ordinary people and threaten serious disturbance to the community, where the accused intentionally does the act which causes, or has the potential to cause, a public disturbance.
108
Do you need witnesses to prove breach of the peace?
- “It is not essential ... that witnesses should be produced who speak to being alarmed or annoyed ... if the nature of the conduct is so flagrant as to entitle the court to draw the necessary inference from the conduct itself.”
109
Describe the case of Smith v Donnelly.
Woman lying on a roadway, disrupting traffic. “It is in our view, clear that what is required to constitute the crime is conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community.” Case successful.
110
Describe the case of Jones v Carnegie.
Accused were charged for protesting outside Parliament and for laying on a roadway disrupting traffic. Appealed convictions because they violated articles 10 and 11. Appeal court accepted there was an interference however discretion permits for governments to introduce restrictions to uphold a normal democratic society.
111
Describe the case of Harris v HM Advocate.
Accused made veiled threats to two police officers, but in each instance it was only to one individual in privacy. Cannot be individual complainer, must threaten serious disturbance to the community.
- “If ... it is necessary to constitute breach of the peace that the conduct, in some sense, must ‘threaten serious disturbance to the community’, it is difficult to see how a statement made in private by one person to another can, without more, constitute that offence.”
112
Define behaving in a threatening or abusive manner.
Must be likely to cause the average person concern or alarm. Accused must intend to cause this or be reckless and do it anyway.
113
Define stalking.
The conduct in question must occur on more than one occasion.
Mens rea – must know, or ought to know that their conduct would cause fear or alarm.
114
Name the 6 forms of evidence.
Oral evidence – given verbally in court during trial.
Documentary evidence – any physical evidence given in court, mostly on paper.
Real evidence – any physical object that can be used to help prove or disprove a fact in a case. Such as weapons, clothing, DNA.
Facta probanda – facts to be proved/crucial facts.
Facta probationis – facts of the proof/evidential facts/circumstantial evidence.
Circumstantial evidence.
- "One strand of the cord might be insufficient to sustain the weight, but three stranded together might be of sufficient strength. Thus ... there maybe a combination of circumstances, not one of which would raise ... more than mere suspicion; but three taken together may create a conclusion of guilt with as much certainty as human affairs can require ...”
115
Differentiate between burdens of proof and standards of proof.
a. Burdens of proof – persuasive, and evidential. “Incidence” – the crown carries the burden of proof in criminal cases.
b. Standards of proof – beyond a reasonable doubt, and “on the balance of probabilities”.
116
Describe the case of Cadder v HM Advocate.
Cadder was detained by the police on suspicious of serious assault and cautioned legally. However, the obtaining of evidence was unlawful and breached convention rights, so it was inadmissible.
117
Describe the Moorov v HM Advocate case.
Appellant convicted of multiple charges, including simple assault and indecent assault based on singe, credible witness testimonies for each charge. However, the argument that they corroborated each charge because the charges were similar is not entirely accurate. Held that the simple assault lacked corroboration and was not left standing. Also reduced his 4-year imprisonment to 12 months.
118
What is the Moorov doctrine?
mutual corroboration – uncorroborated events related closely in time and nature can be used to corroborate each other such as sexual cases.
119
What factors would deem a witness incompetent?
- She has interest in the case.
- Was the spouse of a party to the case.
- Had been convicted of certain crimes.
- Lacked sufficient discernment due to immaturity or mental incapacity.
120
Describe the case of Gubinas v HM Advocate.
. Appellants charged with rape and sexual assault of the complainer. Video of the assault, however risks of it being fake or manufactured does not automatically disband it. Jury can decide whether to take it into consideration or not.
121
Describe the case of Lawrie v Muir.
The prosecution was said to have been based on evidence acquired during an unlawful search of the defendant’s premises.
“... the law must strive to reconcile two highly important interests which are likely to come into conflict – on the one hand, the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and, on the other the interest of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from Courts of law on any merely ‘formal’ or ‘technical’ ground.”
122
Define confessions.
A voluntary statement is one which is given freely, not in response to pressure and inducement and not elicited by cross-examination.
123
Describe the case of HM Advocate v Chalmers.
16-year-old gave a statement regarding a murder and a few days later he was brought to the station at 11am.he was cautioned (rights) then questioned. At trial, police admitted he was cross-examined and suggested in questions that he was lying and picked contradictions.
- They made it evident he was viewed as a suspect. He took them to a field where the deceased belongings were found.
- He confessed. In trial he was found guilty. His charge was appealed and acquitted as he was one of many suspects, however police took bias. His confession was viewed as induced, so it no longer stood.
124
Describe the case of Cadder v HM Advocate.
He was interviewed for 30 minutes and made incriminating statements. He was arrested and convicted; however, he appealed the decision twice as his right to fair trial was breached. The right to an interview with a solicitor when detained for questioning is triggered by any significant curtailment of the suspects freedom of action. The right can be waived, provided the waiver is voluntary informed and unequivocal.
125
What is the law on introducing previous criminal convictions as character evidence?
Criminal Procedure (Scotland) Act 1995, s 101(1):
- “Previous convictions against the accused shall not, subject to [some exceptions] be laid before the jury, nor shall reference be made to them in the presence of the jury, before the verdict is returned.” [solemn proceedings].
s 166(3):
- “The previous convictions against the accused shall not, subject to [some exceptions] be laid before the judge until he is satisfied that the charge is proved.” [summary procedure].
126
In what circumstances is hearsay admissible?
- Identification evidence.
- Documents.
- Res gestae (events, circumstances or remarks relating to particular case).
- Confessions.
- Statutory exceptions.
127
Describe the case of Davie v Edinburgh Magistrates.
. Man tries to claim reparation for house damage caused by sewer works. Expert witness gives evidence on effect of shock waves from blast. Experts’ role is to provide information on matters out with normal experience, cannot influence judgements within the court.
128
s.271(1) of Criminal Procedure Act states that a vulnerable witness is...
1. under the age of 18.
2. mental disorder/fear or distress in connection with giving evidence.
3. if the offence is sexual, human trafficking, domestic abuse, stalking.
4. if there is a risk of harm to the person.
129
Authorised special measures of obtaining evidence from vulnerable witnesses are...
Criminal Procedure Act s271(H).
- (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.
130
Define strict liability offences.
They are statutory and do not require proof of mens rea.
131
Define vicarious liability.
Liability but not because you yourself committed the offence, e.g., a managers liability for actions of one of their employees.
132
How many days notice do courts require when submitting a special defence?
10 days.
133
Define alibi.
It is an assertion that the accused was not at the place libelled in the charge at the time of the crime. Used to claim innocence.
134
Define incrimination.
If alibi is a plea of “I was not there” then incrimination is a plea of “it was not me, it was her”. Claiming that the crime was committed by someone else, therefore incriminating them. incrimination requires that the other person MUST be specified, cannot just say that it must have been someone else.
135
Define non-age defence.
- A child under 12 cannot commit an offence.
136
Name the two types of 'error'.
- Error of law: ignorantia iuris neminem excusat.
- Error of fact: must generally be genuine and reasonable and affect the accused person's mens rea.
137
Describe the case of Stewart v Nisbet.
Error as to consent. Police officer wrapped Sellotape around woman’s mouth and thought she consented.
138
What are the three components of mental disorder?
a. Unfitness for trial.
b. Defence of mental disorder.
c. Diminished responsibility.
139
How is unfitness for trial determined?
Criminal Procedure (Scotland) Act 1995 (as amended by the Criminal Justice and Licensing (Scotland) Act 2010).
s.53F - unfit by reason of mental or physical condition of participating effectively in trial.
unfitness = ability to understand charge, understand evidence, understand purpose and course of trial.
140
Are people with mental disorders criminally responsible?
s.51A - not responsible if at time of crime unable to appreciate the wrongfulness of the conduct.
cannot lack criminal responsibility for personality disorder based on aggressive characteristics.
141
What does a successful diminished responsibility charge downgrade murder to?
Culpable homicide.
142
Is voluntary intoxication a defence?
Never.
143
Describe the case of Brennan v HM Advocate.
accused was convicted of killing his father by stabbing him with a knife. Tried to claim his voluntary intoxication was a defence, but voluntary intoxication is no defence.
144
What must be proved to qualify for the defence of automatism?
- The accused was in a state of automatism.
- This had been caused by an external factor.
- That factor was not reasonably foreseeable, nor self-induced.
- The condition was unlikely to recur.
145
Define automatism.
Automatism concerns involuntary actions. For example, crimes committed after the accused’s drink had been spiked with drugs.
146
Describe the case of Ross v HM Advocate.
accused went berserk with a knife, injuring various people who were complete strangers. He was charged with seven counts of murder; however his drink was found to have contained six tablets of temazepam and LSD. Held that it was unfair to convict in the circumstance and his mens rea was vacant as he was not in control/conscious. Defence recognised.
147
Define the defence of coercion.
When compliance with another party’s demand is less serious than the consequence. E.g., A threatens B with a gun to drive to a bank so A can rob it.
148
Describe the case of Thomson v HM Advocate.
Leading case on coercion. Accused was convicted of armed robbery for driving the getaway van. However, he claimed that he was forced to do it through threats of violence and he was indeed injured. Was easier to establish because he played a smaller role.
149
What is Hume's 4 criteria for coercion to be established?
- There must be an immediate danger of death or great bodily harm.
- There must be inability to resist violence.
- The accused must play a backward and an inferior part in the perpetration of the crime.
- The accused must make disclosure of the facts and restitution of the spoils on the first safe and convenient occasion.
150
Define the defence of necessity.
This defence is where it is necessary for the accused to choose the lesser of two evils because of natural forces or circumstances, NOT threats from a third party. It can only be pled where the accused acts to save life or prevent serious harm to herself or others.
151
Describe the case of R v Dudley.
Two accused and two others were sailing a 40 tonne yacht to Sydney. The yacht sank in a storm and they were stranded, and killed and ate the flesh of the 17 year old crew member before being spotted and saved by another ship.
NECESSITY DOES NOT JUSTIFY OR DEFEND A MURDER CHARGE.
152
Describe the case of Moss v Howdle.
Accused was driving at 101 mph in a 70 in attempt to reach a service area quickly, as his passenger had an alleged medical emergency. Convicted and fined £100. Held on appeal that defence of necessity does not apply. There were other options, breaking the law was not necessary. There must be danger of death or great bodily harm.
153
Describe the case of HM Advocate v Anderson.
accused charged with murder for driving car at and over victim. Youths were attacking his car and accused decided only way to save himself and his sons life was to run over the youth. Necessity in a murder case can be a defence as the person is entitled to use reasonable means to escape from a life-threatening or serious injury-threatening situation, even if he knows what he has to do could cause injury or death to someone. The case was successful and the man was acquitted.
154
What does self-defence require to be legit?
Must be threat to life or limb – serious harm. ECHR Article 2 – right to life.
155
Describe the case of HM Advocate v Doherty.
Was stabbed in the eye with a bayonet, victim died. Self-defence through eye-stabbing was to stop the victim from fighting him with a hammer. Doherty charged with culpable homicide. Flight of stairs behind Doherty, should have ran off down the stairs.
156
Describe the case of Fenning v HM Advocate.
No cruel excess of violence. Charged with murder by repeatedly striking with air rifle and his head with a stone. Went on fishing trip however Patterson said he knew Fenning was having an affair with his wife and said he was going to ‘do him’. Was waving around fishing knife. He picked up boulder and hit him multiple times. Was convicted of murder because the repeated assault was classed as a ‘cruel excess of violence’.
157
Describe the case of Thomson v HM Advocate.
Immediate retaliation. Claim he was defrauded by is business partner. Told partner he lost 10k and it was all his fault. Partner laughed at him and the frauded guy tried to get up to leave. Partner restricted him and he snapped and stabbed him in the side 11 times. Charged because provocation had to be physical.
158
What would a successful provocation defence downgrade voluntary homicide to?
Involuntary culpable homicide.
159
Describe the case of Drury v HM Advocate.
Provocation from sexual infidelity. Walked in on girlfriend cheating and beat them both with a claw hammer 27 times. Later found that the woman had an interdict from court because he was her ex-boyfriend and she wanted him to stay away. However, a sexual relationship continued.
- Did the accused in fact lose his self-control due to the provocation? This idea was REJECTED.
- Would an ordinary man, having been so provoked, be liable to react as the accused did? Court did not accept this. Appeal dismissed.
Cannot be claimed that murder has to be wicked… any clear evidence of intent to kill is enough.
160
Describe the case of Donnelly v HM Advocate.
Where the accused responded to an attack on a third party. Accused was watching is companion being assaulted and claimed it enraged him to the point of him killing their attacker. Provocation was ruled out, as there WAS no provocation.
