Unit 4 - Scots Criminal Law: Introduction and Investigation Flashcards
Define: Breach of the Peace
“Breach of the Peace is a crime at common law and is constituted by one or more persons conducting himself or themselves in a riotous or disorderly manner, where such conduct is severe enough to cause alarm to ordinary people AND threaten serious disturbance to the community.”
Where can a breach of the peace take place?
The crime can take place ANYWHERE, even in someone’s house (as long as the effects can be heard or experienced from outside the house). There just has to be a PUBLIC ELEMENT to it.
What is meant by the term riotous?
Noise, rowdy-ism, wild or violent behaviour. E.g. a man swearing and making rude gestures at rival supporters at a football match. A person who interrupted and disturbed a Salvation Army meeting.
What is meant by disorderly conduct?
Disorderly = actions that could cause a state of alarm and serious disturbance. If this applies AND the behaviour is outwith what is normal and acceptable, then the crime is complete. Disorderly conduct might not involve noise.
Explain what the requirement is with regards to the public element of a Breach of the Peace incident.
- The behaviour MUST threaten serious disturbance to the community and not just threaten irritation or minor alarm.
- Evidence of actual alarm or that the conduct would be alarming to a reasonable person must be present e.g. witness statement.
- This can be extended to conduct in private if there is a reasonable likelihood of it being discovered.
- Insulting or abusive language to or concerning another person does not constitute a Breach of the Peace unless persistently accompanied by threats or violence.
Public Element =
Any public place where the public are present, or
Any private place, overheard by the public in a public place.
What are the essential elements of Threatening and Abusive behaviour?
An offence for any person to:
- Behave in a threatening or abusive manner (quite subjective what is threatening/abusive. Different from person to person).
- Where the behaviour is likely to cause a reasonable person to suffer fear or alarm and
- The person behaving in such a manner intends the behaviour to cause fear or alarm or,
- Is reckless as to whether the behaviour would cause fear or alarm
Does there have to be a public element to a Threatening and Abusive offence?
No. It can be committed against a single person. It can be committed anywhere, whether in public or a private dwelling.
What might a defence for Threatening and Abusive behaviour be?
The defence can show that the behaviour was reasonable in the particular circumstances.
What Police Powers are available for a Breach of the Peace or S38?
- Power of arrest under Section 1 Criminal Justice Act 2016.
- May also:
- Warn the Culprit
- Issued a Fixed Penalty Notice (only for BoP)
- Report for Summons
- Arrest
When there is a choice between BoP and S38, the statute is preferred over the common law crime i.e. S38 is preferred.
What Statutory alternatives are available to a Breach of the Peace?
- Section 38 is most common (threatening and abusive)
- Section 127 of the Communications Act 2003 (essentially a 38 but for technology e.g. text messages, emails, whatsapps.
- Hoax Calls - Section 1-4 Emergency Workers Act 2005 OR Chapter 7 of the Fire Act 2005 (for incidents involving Fire and Rescue).
- Section 39 of CJL ACT 2010 refers to offence of stalking.
What is stalking?
Where a person engages in a course of conduct (on at least 2 occasions) where either:
- The conduct is intended to cause fear or alarm or,
- The person ought to have known the conduct, in all circumstances would cause fear or alarm and
- It does in fact cause the victim to suffer fear or alarm.
This could include physical or psychological harm, apprehension or fear of safety.
Four distinctive stalking behaviours
FIXATED
OBSESSIVE
UNWANTED
REPEATED
Violence is not always the primary concern for the victim, but rather the persistence and recurrence may cause more distress or concern.
Stalking victims have the right to specify which gender of interviewer they would like. Risk Assessment will be undertaken. Stalking screening questions. Domestic Abuse Questions may also be required if it’s between partners or ex-partner.
Define: Assault.
“A crime at common law, and is every attack directed to take effect physically on the person of another, whether or not actual injury is inflicted”.
- For a charge of assault to be relevant there must be criminal intent (Mens Rea) and a criminal action (Actus Rea).
- Accidental injury, even though caused by a mischievous act, does not amount to assault.
Aiming a blow at someone but missing = ASSAULT
Throwing stones at buses which results in injury = NOT ASSAULT.
It depends on intent.
Explain the different types of assault.
- Direct - deliberate and direct physical attack on a person by e.g. punching, kicking, stabbing.
- Indirect - Setting a dog on someone.
- Menaces - Verbal threats are not enough in themselves to constitute the crime of assault but threatening gestures inducing a state of bodily fear are sufficient, whether or not accompanied by menacing words. E.g aggressively pointing a knife at someone within reach, aiming a firearm (even if unloaded).
- Aggravations of Assault - An aggravation of any crime, including assault, increases the gravity of the crime and may influence the PF’s decision when considering proceedings in the case. If found guilty of assault with aggravated circumstances, an accused person is likely to receive a heavier sentence from the court.
How might an assault be aggravated?
DIMPLES!
- Danger to victim e.g. pushing a person into moving traffic, down stairs or from a height will have more serious consequences.
- Intent - Where an assault takes place with intent to commit a more serious crime e.g. rape, to kill, then charge with assault and attempted murder or attempted rape.
- Mode of perpetration - e.g. firearm, knife, corrosive acid.
- Persons character - character of victim and/or accused. Victim (on a child or pregnant woman or infirm person). Accused (positions of trust e.g. police officer, teacher, social worker, carer.
- Locus of assault - e.g. in a victim’s own home where it should be a safe space.
- Extent of injury - life endangered, serious injury, broken bones, permanent disfigurement.
- Statutory Hate Crime - An assault which is motivated by hate is rightly considered Hate Crime. “A crime motivated by malice or ill-will towards a social group”. Any hate crime assault is aggravated.
Is there such a thing as justified assault?
- Under the authority of the law (e.g. police officers when arresting) OR
- In self-defence (of yourself or others, not property).
Note: only the minimum force necessary to be used.
Provocation - Assaulting a person as a result of provocation would not be considered justifiable, although the circumstances of provocation may be grounds for mitigation at the time of sentencing.
Which assaults are dealt with using statute law?
- Section 1 of the Protection of Workers Act 2021 - an offence to assault, threaten or abuse a person who is a retail worker and who is engaged at the time of the incident in retail work. Aggravated would be if it was relating to enforcing age restrictions on items.
- Section 90 of the Police and Fire Reform Act 2012 relates to a person assaulting, resisting, obstructing or hindering a Constable in the execution of his or her duty.
- Section 1 of the Emergency Workers Act 2005 refers to assaulting, obstructing or hindering someone who is acting in the capacity of a police constable, firefighter, ambulance worker, doctor, nurse or midwife.
- Sections 16, 17 and 18 of the Firearms Act 1968 refer to the use of firearms by criminals to assault, resist or instil fear into others.
What is Culpable and Reckless Conduct?
- Common law crime.
- Culpable and reckless acts which cause injury to others or which create a risk of injury.
- Must be more than a genuine and innocent accident, however careless.
- The reckless behaviour must show an utter disregard for the consequences.
- The act need not be an overt act.
E.g. dropping a glass bottle from 15th floor.
E.g. knowingly infecting someone with HIV.
E.g. denying to a Police Officer that you have a needle in your pocket before a search.
Is Accession a crime?
NO!!!!! Accession is NOT A CRIME or OFFENCE in its own right. It is a legal concept. It is a legal term used to describe the principle that:-
- Everyone who participates in a crime or offence is equally liable, no matter what part they played.
- Principal = the person who actually commits the crime.
- Accessories = anyone who aids the perpetrator with advice or assistance before or at the time of the crime/offence, or who acts in concert by watching whilst the crime or offence is committed.
- Abettors = a person who incites, instigates, encourages or counsels another to commit a crime or offence.
To be guilty of a crime or offence by accession, the person must have guilty knowledge of the specific crime or offence. What is meant by guilty knowledge?
Guilty Knowledge = mens rea
- A person is only guilty of a crime or offence by accession if they have guilty knowledge of the specific crime or offence.
- A general suspicion that the assistance they are giving is for a criminal act is not enough.
- Because there must be guilty knowledge, there can only be accession before or during the crime.
- There can be NO ACCESSION AFTER a crime has been committed.
The principals, accessories and abettors would all be charged with the same crime or offence. However, if found guilty, the court may deal with them differently e.g. an abettor who planned the crime, may be dealt with more severely.
Define Wasting Police Time and outline it’s essential elements.
- Causing Police resources to be diverted to deal with false complaints or allegations which are entirely without foundation.
Definition: “A crime at common law, committed by any person who maliciously makes a false statement to the police, with the intention and effect of causing unnecessary police investigations”.
Essential Elements:
- It is not essential that a particular person be named in the false statement.
- Damage may be caused to the public interest by diverting police resources from normal duties to the needless investigation of the invented story.
- Can vary in nature and should be dealt with on an individual basis.
Define “Attempt to Pervert the Course of Justice” and give some examples of this.
“A crime at common law which can be described as any overt and intentional action calculated, to interfere with either the normal investigation of a crime, or the bringing of an offender to justice”.
Examples
- Destroying or concealing evidence.
- Requesting a witness to refrain from identifying an accused.
- Assisting a suspect to evade capture.
- Tampering with drink/drug blood samples.
- Providing a false name or address.
What is Perjury and what are the essential elements of Perjury?
“Perjury is a crime at common law, committed by any person who wilfully makes a false statement under oath or affirmation equivalent to oath”.
Essential elements:
- Falsehood must be made under oath or affirmation in civil or criminal proceedings.
- It must be proved to be false and that the accused knew it was false.
- It must relate to evidence of fact. It is not perjury if due to faulty recollection or misunderstanding.
- It must be direct and unequivocal.
- It must be relevant to the point at issue. It is not perjury if the evidence is irrelevant or incompetent.
Define Subornation of Perjury and give an example.
“Subornation of Perjury is a crime at common law, committed by any person who counsels or induces, by any means, a person to give false testimony in judicial proceedings”.
Examples - murder trials where witnesses are threatened by the accused or their associates. Threat of violence unless false testimony given. It may not be violence used, it could be bribery.
The crime is NOT complete, UNLESS the witness submits to the inducement and gives false evidence.
What is attempted Subornation of Perjury?
- Attempted subornation of perjury is complete as soon as any inducement or intimidation has been made.
- Example: a witness is approached, inducement offered or intimidation made but witness reports it to the police before the witness goes to court.
“A crime at common law committed by any person who counsels or induces, by any means, a person to give false testimony in judicial proceedings.”