Criminal Law and Evidence Overview
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Questions and Answers

What is corroboration?

Two sources of evidence for each "crucial fact"

What are the two requirements for corroboration?

  • Commission of the evidence
  • Identification of the accused

What is the actus reus?

The physical element of a crime

What is the mens rea?

<p>The fault element of a crime</p> Signup and view all the answers

What is the actus reus of rape?

<p>Sexual penetration of a person who is not consenting</p> Signup and view all the answers

What are the three forms of mens rea?

<p>Intention, Knowledge, Recklessness (D)</p> Signup and view all the answers

What is recklessness?

<p>When he consciously disregards a substantial and unjustified risk</p> Signup and view all the answers

What is negligence?

<p>When he should be aware of a substantial and unjustified risk</p> Signup and view all the answers

What is strict liability?

<p>One which does not require mens rea to be proven</p> Signup and view all the answers

What is omissions?

<p>No criminal liability arises for a failure to act</p> Signup and view all the answers

What are two conditions for omissions liability?

<p>Recognised legal duty to act, Failure to discharge that duty (C)</p> Signup and view all the answers

What test is used to assess omissions liability?

<p>Reasonable steps test</p> Signup and view all the answers

What is incitement?

<p>The conduct itself and the conversation is sufficiently dangerous. Complete as soon as the offer takes place</p> Signup and view all the answers

What is the key takeaway from the Baxter v HM Advocate case regarding incitement?

<p>There does not need to be actual instruction</p> Signup and view all the answers

What is conspiracy?

<p>Constituted by the agreement of two or more persons to further or achieve a criminal purpose</p> Signup and view all the answers

What is the mens rea for attempt?

<p>The same as the completed crime</p> Signup and view all the answers

What is the legal test for attempt?

<p>&quot;PREPARATION TO PERPETRATION&quot;</p> Signup and view all the answers

What is art and part liability?

<p>Questions of art and part liability arise when two or more people act in concert to commit a crime. Concert can arise from a plan or spontaneously.</p> Signup and view all the answers

What are the two requirements for being held responsible for art and part liability?

<p>Assistance and participation, Common purpose (A)</p> Signup and view all the answers

What is the key takeaway from McKinnon v HM Advocate case regarding art and part liability?

<p>If the accused goes beyond the agreed common purpose for the crime, and this goes beyond what was foreseeable, the accused is not responsible for that act</p> Signup and view all the answers

What is antecedent concert?

<p>Actively associates himself with a common purpose which is or includes the taking of a human life/carries obvious risk</p> Signup and view all the answers

What is spontaneous concert?

<p>No prior agreed plan, Actual state of knowledge of the accused at the time of involvement</p> Signup and view all the answers

What does it mean to go beyond the common purpose?

<p>An accused is not liable for something which goes beyond the common purpose, at least if this is unforeseeable</p> Signup and view all the answers

What is the actus reus of assault?

<p>An attack upon the person of another</p> Signup and view all the answers

What are the three types of assault?

<p>Attacks producing injury, Attacks producing fear, Indirect attacks (B)</p> Signup and view all the answers

What is transferred intent?

<p>Intention can be transferred</p> Signup and view all the answers

What are the aggravations that can make an assault more serious?

<p>Weapon, Severe injury, Danger to life, Committed in the victim's home, Intention to commit a further crime (D)</p> Signup and view all the answers

What are the statutory aggravations for assault?

<p>Where the offence committed involves abuse by a partner or ex-partner if the accused intended to cause physical or psychological harm, or was reckless as to this possibility</p> Signup and view all the answers

What act defines Domestic Abuse?

<p>Domestic abuse (Scotland) Act 2018</p> Signup and view all the answers

What does the law state about corroboration of domestic abuse?

<p>Each individual incident does not require corroboration, but at least two individual incidents must be corroborated</p> Signup and view all the answers

What are the grounds for a non-harassment order?

<p>Conviction under 2018 act, Aggravated by S1 Abusive Behaviour and Sexual Harm (Scotland) Act 2016 (D)</p> Signup and view all the answers

What are the offences of recklessness?

<p>Injury, Endangerment (C)</p> Signup and view all the answers

What are the crimes of recklessness?

<p>Discharge of a firearm, Admin of harmful substances, Supply of harmful substances (C)</p> Signup and view all the answers

What is reckless injury?

<p>Crime to recklessly injure a person. It is not necessary to show that the conduct in question put the public in danger</p> Signup and view all the answers

What is reckless endangerment?

<p>Crime to recklessly endanger the safety of the public. The administration of harmful substances to a person is a crime</p> Signup and view all the answers

What is the definition of murder?

<p>Destruction of life whether wicked intention or wicked recklessness</p> Signup and view all the answers

What are the three required elements to establish wicked recklessness?

<p>Intention to injure, Manner that might have resulted in death, Didn't care whether they lived or died (C)</p> Signup and view all the answers

What is culpable homicide?

<p>Destruction of life with the same mens rea as for murder</p> Signup and view all the answers

What are the two forms of culpable homicide?

<p>Voluntary, Involuntary (D)</p> Signup and view all the answers

What is corroboration regarding identification?

<p>A crucial fact, but the evidence relied upon can be circumstantial</p> Signup and view all the answers

What are the facts of the case Ralston v HM Advocate 1987 regarding corroboration?

<p>The circumstantial evidence had to prove beyond reasonable doubt that the accused was at the scene, which included his presence at the scene and the description of the suspect</p> Signup and view all the answers

What is corroboration regarding special means?

<p>Courts have developed a number of doctrines allowing corroboration to be found in cases which would otherwise be difficult to prove</p> Signup and view all the answers

What is corroboration regarding special knowledge (confessions)?

<p>Needs to be corroborated. Certain types of confessions which demonstrate &quot;special knowledge&quot; may be corroborated by proof that this knowledge was true.</p> Signup and view all the answers

What is the Moorov Doctrine?

<p>Two or more charges can mutually corroborate each other if closely connected. Accused must be identifiable in each</p> Signup and view all the answers

What is the current state of law regarding distress in sexual offences?

<p>There is no requirement to prove the separate elements in a crime by corroborated evidence</p> Signup and view all the answers

What are the three ways in which evidence can be obtained legally?

<p>Search with a valid warrant, Search permitted by statute, Search under circumstances of urgency (C)</p> Signup and view all the answers

What is the balancing test regarding unlawfully obtained evidence?

<p>Seriousness of the crime changed, Seriousness of irregularity, Good faith (or trickery), Circumstances of urgency</p> Signup and view all the answers

What is the definition of disclosing, or threatening to disclose, an intimate photograph or film?

<p>Section 2 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016</p> Signup and view all the answers

What case defines shameless indecency?

<p>Webster v Dominick</p> Signup and view all the answers

What are the rules regarding previous convictions of the accused?

<p>Previous convictions shall not &quot;be laid before the jury, nor shall reference be made to them in presence of the jury before the verdict is returned (B)</p> Signup and view all the answers

What is the definition of hearsay evidence?

<p>An assertion other than one made by a person while giving evidence in the proceedings is inadmissible as evidence of any fact asserted.</p> Signup and view all the answers

What are the two main exceptions to the hearsay rule?

<p>Statutory, Res gestate (C)</p> Signup and view all the answers

What kind of property can be stolen?

<p>Must be corporeal moveable property (note the odd position of electricity). Information cannot be stolen</p> Signup and view all the answers

What are the aggravated forms of theft?

<p>Housebreaking, Opening lockfast places (A)</p> Signup and view all the answers

What is embezzlement?

<p>The &quot;felonious appropriation of property which is in the possession of the offender as trustee, agent, factor or other administrator; or which is in his possession with a view to his becoming a beneficial owner in certain contingencies... or which is in his custody for a purpose left unspecific&quot;</p> Signup and view all the answers

What is the mens rea for robbery?

<p>Is it enough for the theft and the violence to be interrelated? Probably not: the violence should be in order to achieve the theft.</p> Signup and view all the answers

What is extortion?

<p>Crime consists in using the threat to concuss a person into paying a demand which he intends to resist; and the crime, the use of threat for that purpose, is the same, whether the party using the threat thinks his demand good or bad</p> Signup and view all the answers

What is fraud?

<p>Fraud is committed by a false pretence which is made in order to (and does) cause a &quot;definite practical result&quot;.</p> Signup and view all the answers

What is the mens rea for fraud?

<p>The mens rea is intent. Recklessness will not suffice.</p> Signup and view all the answers

What are the offences against property?

<p>Malicious mischief, Vandalism, Fire-raising (D)</p> Signup and view all the answers

What is malicious mischief?

<p>Damage or destruction to corporeal property. The damage can be very minor.</p> Signup and view all the answers

What is vandalism?

<p>&quot;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.&quot;</p> Signup and view all the answers

What is fire-raising?

<p>Setting fire to any property. Wilful (capital) fire-raising was restricted to certain types of property. Culpable and reckless fire-raising: all other types of property, and could be committed intentionally</p> Signup and view all the answers

What is the definition of breach of the peace?

<ol> <li>cause alarm to ordinary people</li> <li>threaten serious disturbance to the community. No mens rea (unitary test)</li> </ol> Signup and view all the answers

Flashcards

What is corroboration?

Two sources of evidence for each "crucial fact"

What is the actus reus?

The physical element of a crime.

What is the mens rea?

The fault element of a crime.

Actus reus of rape

Sexual penetration of a person who is not consenting

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Forms of mens rea

Intention, knowledge and recklessness

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What is recklessness?

When someone consciously disregards a substantial and unjustified risk.

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What is negligence?

When someone should be aware of a substantial and unjustified risk.

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What is strict liability?

A crime that does not require mens rea to be proven.

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What is Omissions?

No criminal liability arises for a failure to act.

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Omissions liability

A recognised legal duty to act and failure to discharge that duty.

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What was omissions liability assessed on

The "reasonable steps test": Bone v HM Advocate 2006 SLT 164

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What is Incitement?

The conduct itself and the conversation is sufficiently dangerous. Complete as soon as the offer takes place.

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Case for incitement

There does not need to be actual instruction. Baxter v HM Advocate 1998 JC 219

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Conspiracy

Constituted by the agreement of two or more persons to further or achieve a criminal purpose.

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Attempt

Mens rea is the same as the completed crime. It's criminal to attempt a crime.

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Legal test for attempt

"PREPARATION TO PERPETRATION." HM Adv. v Camerons (1911) 6 Adam 456

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Art and part liability

Questions of art and part liability arise when two or more people act in concert to commit a crime. Concert can arise from a plan or spontaneously.

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What do you need to be held responsible for art and part liability?

In order to be held responsible through the doctrine of art and part liability the accused must have offered (i) assistance and participation and must have been part of a (ii) "common purpose".

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Case for art and part liability

McKinnon v HM Advocate 2003 JC 29

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What is Antecdent Concert

Actively associates himself with a common purpose which is or includes the taking of a human life/carries obvious risk

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Spontaneous Concert

No prior agreed plan. Actual state of knowledge of the accused at the time of involvement.

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Going beyond the common purpose

An accused is not liable for something which goes beyond the common purpose, at least if this is unforeseeable. Mckinnon V HM Advocate 2003 JC 29

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Actus reus of assault

An attack upon the person of another.

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Mens rea assault

Evil intention to attack someone or place them in fear of an attack.

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3 types of assault

Attacks producing injury, attacks producing fear, indirect attacks.

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Transferred Intent

Intention can be transferred. Connor V Jessop 1988

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Aggravations of assault

Aggravations render an offence more serious: weapon, severe injury, danger to life, committed in the victim's home, intention to commit a further crime.

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Statutory aggravations: Assault

Where the offence committed involves abuse by a partner or ex-partner if the accused intended to cause physical or psychological harm, or was reckless as to this possibility (Abusive Behaviour and Sexual Harm (Scotland) Act 2016 s 1).

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Domestic Abuse

Domestic abuse (Scotland) Act 2018

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Corroboration of Domestic Abuse

Each individual incident does not require corroboration, but at least two individual incidents must be corroborated: A(C) V HM Advocate 2023 JC 8

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Non-Harrassment Orders

Conviction under 2018 act. Aggravated by S1 Abusive Behaviour and Sexual Harm (Scotland) Act 2016.

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Offences of Recklessness

Injury and endangerment.

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What are the crimes of recklessness

Discharge of a firearm, admin of harmful substances, supply of harmful substances.

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What is reckless injury

Crime to recklessly injure a person. It is not necessary to show that the conduct in question put the public in danger. HM Advocate v Harris 1993 JC 150

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What is reckless endangerment

Crime to recklessly endanger the safety of the public. The administration of harmful substances to a person is a crime: Khaliq v HM Advocate 1984 JC 23

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Murder definition

Destruction of life, whether wicked intention or wicked recklessness. Drury v HM Advocate 2001 SLT 1013

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Three required elements to wicked recklessness

Intention to injure, manner that might have resulted in death, didn't care whether they lived or died.

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Culpable Homocide

Destruction of life. Same mens rea for murder.

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Two forms of culpable homocide

Voluntary: Would have been murder if not for the defense. Involuntary: Unlawful - assault causes death. Lawful - recklessly causes death.

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Corroboration: Identification

Crucial fact, but the evidence relied upon can be circumstantial.

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Facts for corroboration: identification

Ralston v HM Advocate 1987

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Corroboration: Special Means

Courts have developed a number of doctrines allowing corroboration to be found in cases which would otherwise be difficult to prove.

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Corroboration: Special knowledge (confessions)

Needs to be corroborated. Certain types of confessions which demonstrate "special knowledge" may be corroborated by proof that this knowledge was true: Manuel v HM Advocate 1958 JC 41

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Moorov Doctrine

Two or more charges can mutually corroborate each other if closely connected: Moorov v HM Advocate 1930 JC 68. Accused must be identifiable in each.

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Distress in sexual offences

Lord Advocate's Reference (No 1 of 2023) HCJAC 40: "There is no requirement to prove the separate elements in a crime by corroborated evidence". Distress must not be too long after the incident but there is no fixed time limit; Depends

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Howden doctrine

Howden v HM Advocate 1994 SCCR 19 - even where there is no evidence identifying the accused as having committed one crime if that crime is sufficiently similar to another which he has been proved (by corroborated evidence) of committing, he may be convicted of both.

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Where evidence obtained properly?

  1. Search with a valid warrant 2. Search permitted by statute 3. Search under circumstances of urgency
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Where evidence obtained unlawfully?

Balancing test: Lawrie v Muir Seriousness of the crime changed, seriousness of irregularity, good faith (or trickery), circumstances of urgency

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Disclosing, Or Threatening to Disclose An Intimate Photograph Or Film

section 2 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016

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Shameless indecency

Webster v Dominick in English offence of outraging public decency is sufficient for liability that, on an objective assessment, the conduct complained of should cause public offence.

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Previous convictions of the accussed

Previous convictions shall not "be laid before the jury, nor shall reference be made to them in presence of the jury before the verdict is returned. Of witness- allowed if indicate prone to lying, Griffith. Of accused- inadmissible: s.101/166 CPSA

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Hearsay Evidence

"an assertion other than one made by a person while giving evidence in the proceedings is inadmissible as evidence of any fact asserted" Morrison v HM Advocate 1990 JC 299 at 312

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Exceptions to hearsay

Statutory = S259(2) CPScot. Res gestate = "part of the event" or closely associated with it

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Theft actus reus

Appropriation of the property of another, without their consent and with intent to deprive the owner of that property

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Theft of property

Must be corporeal moveable property (note the odd position of electricity). Information cannot be stolen: Grant v Allan 1987 JC 71

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Theft mens rea

An intention to deprive is required.

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aggravated forms of theft

Housebreaking, opening lockfast places.

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Embezzlement

The "felonious appropriation of property which is in the possession of the offender as trustee, agent, factor or other administrator; or which is in his possession with a view to his becoming a beneficial owner in certain contingencies... or which is in his custody for a purpose left unspecific"

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Robbery

Robbery is defined as theft accompanied by personal violence. Cromar v HM Advocate 1987 SCCR 635

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Robbery mens rea

Is it enough for the theft and the violence to be interrelated? Probably not: the violence should be in order to achieve the theft.

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Extortion

Crime consists in using the threat to concuss a person into paying a demand which he intends to resist; and the crime, the use of threat for that purpose, is the same, whether the party using the threat thinks his demand good or bad... Black v Carmichael 1992 SLT 897,

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Fraud

Fraud is committed by a false pretence which is made in order to (and does) cause a "definite practical result".

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Mens Rea for fraud

The mens rea is intent. Recklessness will not suffice: Mackenzie v Skeen 1971 JC 43

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Reset

Reset "consists in knowingly receiving articles taken by theft, robbery, embezzlement, or fraud, and feloniously taking them, or being privy to the retaining of property that has been dishonestly come by".

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Offences against property

Malicious mischief, vandalism, fire-raising

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Malicious mischief

Damage or destruction to corporeal property. The damage can be very minor. Intention or recklessness; Lord Advocate's Reference (No 1 of 2000) 2001 JC 143)

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Vandalsim

"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." (Criminal Law (Consolidation) (Scotland) Act 1995 s 52)

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Fire-raising

Setting fire to any property. Wilful (capital) fire-raising was restricted to certain types of property. Culpable and reckless fir-raising: all other types of property, and could be committed intentionally. Byrne v HM Advocate 2000 JC 155

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Breach of the peace

  1. Cause alarm to ordinary people. 2. Threaten serious disturbance to the community. No mens rea (unitary test); Smith v Donnelly 2002 JC 65
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Threatening or Abusive Behaviour

A crime defined in the Abusive Behaviour and Sexual Harm (Scotland) Act 2016, intended to prevent abusive or intimidating behaviour towards another person

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Study Notes

Criminal Law and Evidence Study Notes

  • Corroboration: Two sources of evidence for each crucial fact, including commission of the evidence and identification of the accused.

  • Actus Reus: The physical element of a crime.

  • Mens Rea: The fault element of a crime; types include intention, knowledge, recklessness, and negligence.

  • Rape Actus Reus: Sexual penetration of a non-consenting person.

  • Recklessness: Conscious disregard for a substantial and unjustified risk.

  • Negligence: Awareness of a substantial and unjustified risk that one should have had.

  • Strict Liability: Crimes that do not require proof of mens rea.

  • Omissions: No criminal liability for failure to act unless a legal duty to act exists and that duty was not discharged. Assessed using the "reasonable steps test."

  • Incitement: The conduct and conversation are sufficiently dangerous; considered complete as soon as the offer is made. Doesn't require actual instruction (Baxter v HM Advocate 1998).

  • Conspiracy: Agreement between two or more persons to achieve a criminal purpose.

  • Attempt: Mens rea is the same as the completed crime; the act is preparation to perpetration (HM Adv. v Camerons 1911).

  • Art and Part Liability: Liability arises when two or more people act in concert to commit a crime. Concert can be planned or spontaneous.

  • Art and Part Responsibility Requirements: (i) Assistance and participation, and (ii) "common purpose" are necessary.

  • Antecedent Concert: Active association with a common purpose, including the potential for human life or obvious risk.

  • Spontaneous Concert: No prior plan; judge the accused's knowledge at the time of involvement.

  • Going Beyond Common Purpose: Accused is not liable for unforeseeable actions exceeding the planned common purpose (McKinnon v HM Advocate 2003).

  • Assault Actus Reus: Attack upon another person.

  • Assault Mens Rea: Evil intention to attack or put someone in fear of attack.

  • Assault Types: Attacks producing injury, attacks producing fear, and indirect attacks.

  • Transferred Intent: Intention can be transferred to a different victim. (Connor V Jessop 1988).

  • Assault Aggravations: Using a weapon, causing severe injury, danger to life, occurring in the victim's home, or intending to commit a further crime. Further, it is an aggravation if the offence involves abuse by a partner or ex-partner, and the accused intended to cause harm or was reckless about the possibility.

  • Domestic Abuse: Under the Domestic Abuse (Scotland) Act 2018. Requires corroboration of two incidents but doesn't require all incidents to be separately corroborated

  • Non-Harrassment Orders: Conviction under the 2018 Act; aggravated by 2016 Abusive Behaviour and Sexual Harm Act.

  • Reckless Injury/Endangerment: Recklessly injuring someone or endangering safety of the public (e.g., firearm discharge, harmful substance administration) (HM Advocate v Harris 1993; Khaliq v HM Advocate 1984).

  • Murder: Destruction of life with wicked intention or wicked recklessness (Drury v HM Advocate 2001).

  • Wicked Recklessness Elements: Intention to injure, manner that might cause death, and indifference to victim's life.

  • Culpable Homicide: Destruction of life; same mens rea as murder. Voluntary (defense reduces murder to culpable) vs. Involuntary (unlawful or lawful, like reckless death in a lawful act).

  • Corroboration: Identification: Crucial fact, but evidence can be circumstantial, e.g., Ralston v HM Advocate 1987.

  • Corroboration: Special Means: Doctrines exist for cases with hard-to-prove corroboration.

  • Corroboration: Special Knowledge (Confessions): May require corroboration if it demonstrates special knowledge that is verifiable, e.g., Manuel v HM Advocate 1958.

  • Moorov Doctrine: Two or more closely related charges can mutually corroborate each other; accused must be identifiable in each (Moorov v HM Advocate 1930).

  • Distress in Sexual Offences: No need for corroboration of each element (e.g. Lord Advocate's Reference 2023). Distress doesn't have a fixed time limit.

  • Howden Doctrine: If a crime is similar to another crime that's corroborated, a conviction can be held even if the first crime lacks identification evidence. (Howden v HM Advocate 1994).

  • Lawfully obtained evidence: Search with a warrant, statute-permitted search, or circumstances of urgency.

  • Unlawfully obtained evidence: Balancing test. Serious crime/serious irregularity, good faith/trickery and urgent circumstances are determining factors (Lawrie v Muir)

  • Disclosing Intimate Images: Section 2 of the 2016 Act.

  • Shameless indecency: Outraging public decency. An objective test.

  • Previous Convictions: Pre-verdict evidence is excluded (s.101/166 CPSA), but can be used as part of a witness's credibility assessments.

  • Hearsay: Inadmissible evidence of an assertion unless made during the court proceedings. Exceptions include statutory exceptions (S259(2) CPScot) and res gestae (part of the event).

  • Theft Actus Reus: Appropriation of another's property without consent with intent to deprive.

  • Property in Theft: Corporeal, movable property (electricity is unusual); information cannot be stolen.

  • Theft Mens Rea: Intention to deprive.

  • Aggravated Theft Forms: Housebreaking and opening lockfast places.

  • Embezzlement: Felonious appropriation of property held in trust, agency, or similar capacity.

  • Robbery: Theft with personal violence (Cromar v HM Advocate 1987). Mens Rea: Violence should be to achieve the theft.

  • Extortion: Use of threats to force payment of a resisted demand. (Black v Carmichael 1992).

  • Fraud: False pretense causing a definite practical result, intent. (Mackenzie v Skeen 1971).

  • Reset: Knowingly receiving stolen, robbed, embezzled, or fraudulently acquired items.

  • Offences against property: Malicious mischief, vandalism, and fire-raising.

  • Malicious Mischief: Corporeals property damage. Intention or recklessness (Lord Advocate's Reference 2001).

  • Vandalism: Willful or reckless destruction/damage to another's property (Criminal Law (Consolidation) (Scotland) 1995).

  • Fire-raising: Setting fire to property. Differentiation between culpable and reckless fir-raising. (Byrne v HM Advocate 2000).

  • Breach of the peace: Causing alarm to ordinary people or threatening community disturbance. No mens rea (unitary test) (Smith v Donnelly 2002).

  • Threatening or Abusive Behaviour: This is a broad term; the specifics for this could vary considerably in different cases.

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This quiz covers key concepts in Criminal Law and Evidence, including essential definitions such as Actus Reus and Mens Rea, as well as specific offenses like the Rape Actus Reus. Test your understanding of corroboration, negligence, and strict liability within the context of criminal liability.

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