Scots Criminal Law and Evidence Flashcards
Name the 3 divisions of actus reas.
States of affairs, overt acts, omissions.
Name and describe the case illustrating the thin skull rule.
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.
Transferred intent - name the case and the rule.
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.
What is the mens rea for involuntary lawful act culpable homicide?
Recklessness.
Difference between subjective and objective recklessness?
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.
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?
HM Advocate v Camerons. Faked a robbery to claim for valuable pearl necklace.
Name the case that considered the criminalisation of “states of affairs”
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.
Describe the two differences between a state of affairs and an act.
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.
What do overt acts generally require to be prosecutable?
Voluntary actions.
Describe the case of Hogg v Macpherson.
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.
In terms of overt acts, what is the exception to the voluntary action rule?
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.
What is the crime of omission?
Failure to do something constitutes a crime. Examples – failing to obey a traffic sign
What are crimes of commission by means of omission?
Commission = actus reas of the result. Omission = what was omitted and becomes the cause of the result.
Is there any legal duty to prevent or save others from crime? Name relevant case.
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.
Name the circumstances in which an omission would be an offence.
- 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).
Explain the case of William Hardie (omissions).
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.
Describe the case of Paterson v Lees (omissions).
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.
Describe the case of Law Hospital NHS Trust v Lord Advocate (omissions).
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.
Describe the case of R v Gibbins and Proctor (omissions).
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.
Describe the case of R v Instan (omissions).
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.
Describe the case of Bone v HM Advocate (omissions).
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.
How do you establish a causal link in fraud cases?
- Must show a false pretence was made.
- Must show that it was the false pretence specifically that caused the victim to do something.
How do you establish causation in an assault case? (When trying to prosecute for an aggravation)
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.
How do you establish causation in culpable homicide or murder cases?
- Accused must cause death to victim.
- Irrelevant if victim was already close to dying before the accused attacked.
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.
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.
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.
Define novus actus interveniens.
A new, intervening act. Usually breaking the causal chain.
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.
Define mens rea.
Summarises all of the mental thought processing and decision-making necessary to their corresponding offences.
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.
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.
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.
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.
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.
Define negligence.
When conduct has failed to reach the standard of the reasonably competent person.
Define art and part liability.
Can be a spontaneous coming together or planned. Only liable for your own acts and omissions.
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. .
“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.
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.
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.
You can be art and part liable for the actus reas if someone stepped outside the common plan. True or false?
False.
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.
From what stage of preparation to perpetration is attempted murder prosecutable?
As soon as the ‘trigger is pulled’. Not before that.
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.
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.’
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.
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.
Define incitement.
Inviting another to enter a conspiracy or commit a crime, with the intention that the other will carry out that crime.
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.
Define the crime of murder.
Causing the death of another human being, having (wickedly) intended to kill or through “wicked recklessness”.
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.
Define wicked recklessness.
Complete indifference/disregard to the consequences.
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.
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.”
In murder cases, can foreseeing the consequences of an action substitute for intent to kill?
Yes.
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.
Can diminished responsibility automatically acquit accused of their crime?
NO, but it is capable of reducing criminal liability.
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.
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”.
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.
Three factors of road traffic homicide.
- Causing death by dangerous driving.
- Causing death by driving without due care and attention.
- Causing death by driving while unlicensed, disqualified or uninsured.
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.
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.
