Foundations of Criminal Law

• Foundations of Criminal Law

Actus non facit reum nisi mens sit rea

• Legal principle requiring both a guilty act (actus reus) and a guilty mind (mens rea) to establish criminal liability.

Actus Reus: The Forbidden Situation

• Encompasses the external elements of a crime including acts, omissions, and states of affairs.

Acts

• Voluntary acts are a key element in establishing actus reus
• Hogg v MacPherson 1928 JC 15: It was determined there was no voluntary act
• R v White [1910] 2 KB 124, CA: It was determined there was no causal link

Omissions

• Generally, there is no liability for omissions
• HM Advocate v Kerr and Others (1871) 2 Couper 334: This established the general rule of no liability for omissions
• Exceptions to the rule can arise by statute, contract/employment, family relationships or creating a dangerous situation.

States of Affairs

• Specific circumstances that can constitute actus reus.

Mens Rea: The Mental Element

• Refers to the mental state of the accused at the time of committing the act

Subjective or Objective

• The assessment of mens rea can be subjective, focusing on the actual state of mind or objective, considering what a reasonable person would have thought or done

Motive

• Motive is generally not a consideration
• Quinn v Lees 1994 SCCR 159: It was determined the motive was a joke

Intent, Recklessness, Negligence

• Different levels of mens rea, reflecting varying degrees of culpability
• Paton v HM Advocate 1936 JC 19: recklessness

The Interaction of Actus Reus and Mens Rea

• Refers to the relationship of having both a guilty act and a guilty mind
• Thabo Meli v R [1954] 1 WLR 228: Conduct was treated as a continuous act
• Roberts v Hamilton 1989 JC 91; 1989 SLT 399: transferred intent

Causation

• Establishing a causal link between the accused's actions or omissions and the resulting harm is crucial in many crimes

Crimes that require Causation

• Fraud
• Aggravated Assault (but not 'simple' assault)
• Murder and Culpable Homicide

Causation - and Breaking the Causal Chain

• The causal chain can be broken by certain intervening events
• HM Advocate v Robertson and Donoghue (1945, unreported): take victim as you find him/her
• R v White [1910] 2 KB 124, CA: no causal link
• McDonald v H.M. Advocate 2007 SCCR 10: victim's contribution can break chain of causation
• Malregimen: bad medical treatment can also disrupt causation

Art and Part Liability

• Relates to the liability of individuals who participate together in committing a crime
• HM Advocate v Kerr and Others (1871) 2 Couper 334: general rule: liable for own acts and omissions
• HM Advocate v Fraser & Rollins 1920 JC 60: each accused is liable for the ultimate actus reus
• HM Advocate v Gallacher 1951JC 38: spontaneous coming together
• Boyne v HM Advocate 1980 SLT 56: step outside the common plan

Attempted Crimes

• Focuses on situations where an accused attempts a crime but does not complete it
• HM Advocate v Camerons (1911) 6 Adam 456: preparation to perpetration of a crime, the pearl necklace case
• Docherty v Brown 1996 JC 48; 1996 SLT 325: deals with impossible attempts

Acts towards committing the crime requirements

• "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."

Conspiracy

• An agreement between two or more persons to commit a crime or crimes intending to carry out that crime(s)
• Where a specific crime(s) 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"
• West v HM Advocate 1985 SCCR 248: loitering suspiciously with weapons

Incitement

• Inviting another to enter a conspiracy or commit a crime, with the intention that the other will carry out that crime
• Baxter v HM Advocate 1997 SCCR 437: it is enough that the accused is serious