Week 3: Non-sexual and sexual offences Flashcards
Drury v HM Advocate 2001
Wicked Intent
Drury murdered his ex-wife with a claw hammer upon discovering she had slept with another man
The case brought about a new definition for murder which was a controversial one
Lord Roger stated that there must be ‘wicked intent’ to kill or ‘wicked recklessness’
The case accepted that there was provocation in the form of sexual infidelity
The judge directed the jury that for the defence of provocation to be successful they had to determine (1) did he snap and (2) would the ordinary man have responded in the same way when discovering sexual infidelity
HM Advocate v Purcell 2008
“wicked recklessness”
- Young child was killed by Purcell who was driving extremely dangerously
- The crown sought a charge of murder
- It was the view of the court that there must have been some from of intention to kill to charge murder
- The crown argued that the “callous disregard for public safety” should amount to murder
HELD - Purcell’s actions were not so intended and he was charged with the lesser crime of culpable homicide.
Petto v HM Advocate
Foresight of consequences = intent to kill
Appellant set fire to a building
Resulted in the death of a woman in a second floor flat
It was reasonably foreseeable that starting a fire may lead to injury or death
Murder.
Causing the death of another human being, having (wickedly) intended to kill or through “wicked recklessness”.
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.
What are the two defences that would reduce a charge of homicide to culpable homicide.
- Provocation
- Diminished responsibility
Tomney v HM Advocate
- Several individuals were mucking about with a firearm, to which one had a licence
- While acting recklessly one party fired the weapon killing another
- HELD: The accused was convicted of lawful, involuntary culpable homicide
- High degree of negligence
What are the three road traffic homicide charges?
- Causing death by dangerous driving
- Causing death by driving without due care and attention
- Causing death by driving while unlicenced, disqualified or uninsured
Transco PLC v HMA (no. 1)
- Charge of culpable homicide against a company
- The appellant provided gas to the home of the victim
- Police reported the strong smell of gas
- By the time the area had been shut down, the line exploded killing a family of 4
- First case in which a PLC had faced criminal prosecution
- As far as the law is concerned companies are people
- How can a company have a mental element – how do they intend to do anything
o Company aware of corrosion of the gas line
o Crown argued that you don’t have to single out a particular individual(s), instead you could aggregate several different states of mind who we’re aware of the corrosion and failed to act
o Court highlighted that responsibility to apply there had to be a collective failure to act
o Transco ended up pleading guilty to heath and safety act - not culpable homicide
Define corporate homicide.
‘An organisation is guilty of an offence if the way in which its activities are managed or organised -
(a) Causes a person’s death
(b) Amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased
Define assault.
An attack on the physical person of another, done deliberately.
Is there such a thing as attempted assault.
No.
Need not be physical contact. If one were to throw an object and the victim ducks - that is still an attack on their physical person. To attempt to assault them IS assault.
John Roy 1839 Bell’s Notes 88
- No intent to cause injury
- One cannot be guilty of an assault by acting negligently or even recklessly
- Accused deliberately broke a window and in doing so glass stuck the victim’s eye
- The accused could not be found guilty of assault
Smart v HMA
- Consent is no defence
- Victim challenged the accused to a ‘square go’
- This was not considered an adequate defence by the court
R v Brown
- Sado-masochism
- Primary question was whether consent can be considered a defence
- The answer being negative
- The case involved a number of men participating in sexual activity, including the nailing of body parts to a board, which didn’t strictly require medical treatment
Stewart v Nisbet
- Error as to consent
- Police officer wrapped tape around a women’s head
What are the seven aggravated forms of assault?
- Assault with intent to rape
- Assault to the danger of life
- Assault to severe injury
- Assault to permanent disfigurement
- Assault to the permanent impairment of sight
- Assault with a weapon
- Hamesucken- the accused has assaulted the victim in the victims home, having gone to their home to assault them.
What Act prohibits smacking children?
Children (Equal protection from Assault) (Scotland) Act 2019
HM Advocate v Harris
- Assault requires intent, but causing real injury by reckless conduct is a crime
- Case concerned whether reckless conduct constituted a crime under Scots law
Define rape.
;If a person (‘A’), with A’s penis -
(a) Without another person (‘B’) consenting, and
(b) Without any reasonable belief that B consents,
(c) Penetrates to any extent, whether intending to do so or reckless as to whether the there is penetration, the vagina anus or mouth of B then A commits an offence to be known as the offence of rape
- Without consent, and
- Without reasonable belief there is consent
*Penetrates the vagina, anus or mouth of person ‘B’
Is person B entitled to withdraw consent?
Yes.
See S1 (3)
Which statutory provision criminalises the offence of rape?
Sexual Offences (Scotland) Act 2009
Are surgically contracted penis’s included in this act?
Yes.
What does s2 (1) of the Sexual Offences (Scotland) Act provide for?
Sexual Assault by Penetration.
What does s3 (1) of the Sexual Offences (Scotland) Act provide for?
Sexual Assault
Define sexual assault.
If person A without consent, and without reasonable belief
that ‘B’ consents either; (s3 (2))
- penetrates sexually by any means and to any extent,
- intentionally or recklessly touches B sexually,
- engages in any other form of sexual activity in which A has physical contact,
- ejaculates semen onto B, or
- emits urine or saliva onto B
What does s12 of the Sexual Offences (Scotland) Act provide for?
The definition of consent (Free argument).
What does s13 of the Sexual Offences (Scotland) Act provide for?
Circumstances in which consent is invalid.
What are the six circumstances in which consent is invalid, as outlined in s13 (2) of the SOSA.
a. Incapable because of alcohol or other substances
b. Violence or threats of violence
c. Unlawful detainment
d. Deception on the part of person ‘A’
e. Impersonation of someone known personally to ‘B’
f. Consent is given by anyone other than ‘B’
What does s14 (2) of the SOSA provide for?
Consent while asleep or unconscious.
What does s16 of the SOSA provide for?
How to determine whether there was reasonable belief that consent was given?
(By examining what steps were taken to ascertain if there was consent).
Define incest.
Any male person who has sexual intercourse with a person related to him in a degree specified in column 1, or any female person who has sexual intercourse with a person related to her in a degree specified in column 2 of the table shall be guilty of incest.
Outline the three defences to incest
a. Did not know, or had no reason to suspect that they were related
b. Did not consent
c. Were married outside Scotland and recognised by Scots Law at the time when the sexual intercourse took place.
