Criminal Law Notes PDF

Intro to Crim Law The Criminal Process Criminal courts and trials ❖ Crim trails in S follow 2 procedures depending on offences charged 1) Solemn procedure/trial on indictment → cases tried by judge with jury of 15 who decide verdict & r sole judges of fact 2) Su...

Intro to Crim Law The Criminal Process Criminal courts and trials ❖ Crim trails in S follow 2 procedures depending on offences charged 1) Solemn procedure/trial on indictment → cases tried by judge with jury of 15 who decide verdict & r sole judges of fact 2) Summary procedure → case tried by judges sitting without jury ❖ Trials can take place in 3 types of court 1) High Court of Justiciary → S supreme criminal court Only hears solemn cases Deals with most serious crimes ↠ murder, rape, armed robbery 2) Sheriff Courts → vast majority of crim cases in S Both solemn & summary procedure 3) Justice of Peace Courts → summary cases involving less serious offences ↠ speeding, shoplifting, breach of the peace Justices of the Peace r lay magistrates who r advised by qualified clerk/legal adviser ❖ Appeals heard by HC sitting as Appeal Court & Sheriff Appeal Court HC = final court of appeal - no appeal 2 UK SC except on limited issues ↠ compatibility with ECHR Verdict and sentence ❖ Purpose of crim trial court ↣ determine whether accused is guilty of offence charged ❖ Court may return following verdicts Guilty (conviction) Not-guilty(acquittal) verdict Not proven - S law Functionally identical 2 not guilty verdicts ↣ they r acquittals Set 2b abolished by Victims, Witnesses & Justice Reform(S) Bill ❖ Sentence → if accused found guilty they will be sentenced by court Solemn cases ↠ court can only pass sentence if moved 2 do so by prosecution Almost always court will order some form of punishment Sentence available depends on where case is being tried HC ↠ may impose max sentence available 4 an offence Sheriff & Justice of Peace courts limited  Sheriff solemn cases ↣ 5 yrs imprisonment/unlimited fine Sheriff summary cases ↣ 1 yr imprisonment/10k fine Justice of Peace courts ↣ 60 days imprisonment/2,5k Parties to a criminal case ❖ Accused → person prosecuted in S ❖ The Crown → the prosecution ❖ Complainer → alleged victim Effectively never prosecute ❖ NB feature of crim law ↣ prosecutions not brought by complainers Responsibility of public bodies ❖ S Crown Office and Procurator Fiscal Service (COPFS) → public prosecution service The Crown → prosecution in crim case ❖ Solemn cases ↣ brought in name of the Lord Advocate → G minister who is head of prosecution system Reported as HM Adv v Smith ❖ Summary cases ↣ brought in name of local Procurator Fiscal Jones v Smith E law - R v Smith (R → Rex/Regina the crown) ❖ Adversarial in character Parties in control of case & presenting evidence 2 the court Judges & juries mostly passive & make decisions based on evidence presented 2 them by the parties Sources of Criminal Law No crim code in S → doc that complies all/most of jurisdiction’s criminal law Until SP reinstated in 1999 ○ Major crim legislation of any kind was rare ↣ modern Scots crim law from range of sources mostly case law Legislation ❖ UK & SP may make crim laws for S Crim law not reserved 2 Westminster UK P rarely does so ❖ Some areas reserved matters for UK P ↠ drugs, firearms, terrorism ↠ Scotland Act 1998 sched 5  ❖ Legislation of SP on reserved matters is invalid unless its purpose is to make crim law apply consistently 2 reserved matters and otherwise ↠ 1998 Act sec 29(4) Case law ❖ Bc of lack of major crim legislation in S ↠ most core criminal law doctrine derived from case law ❖ Appeal Court effectively responsible 4 development Cannot make conduct criminal on its own initiative ❖ Common law crimes advantage of flexibility Can be adapted in response 2 new & unexpected sets of facts ❖ Common law crimes disadvantage of vagueness/uncertainty Often defined in arcane language & can b highly uncertain in their scope Raises potential human rights concerns Institutional writers ❖ Institutional writers → Commentaries on common law from before advent of official law reporting ❖ Still authoritative sources of law but in practice only referred 2 selectively ❖ Most NB Hume Commentaries on Law of S Respecting Crimes Mackenzie The Laws of S in Matters Criminal Alison Principles of Criminal Law of S ❖ Non-institutional writers Macdonald & Gordon often referred to in case law & textbooks - influential in development of common law Structure of Criminal Liability Structure of Criminal Liability Table Offence Prosecution must prove all elements Actus reus Mens rea Wrongful act Guilty mind Conduct elements Culpability elements Objective elements Subjective elements No Defence Accused bears initial burden of raising defence ○ prosecution must usually disprove  Crim liability 2 essentials 1) Accused must have accused an offence Sub-divided into actus reus and mens rea 2) Accused must lack any defence Offences ❖ 2 find accused criminally liable court must b sastified beyond reasonable doubt that the accused has committed a criminal offence ❖ Criminal offences require actus reus and mens rea Actus reus ➔ Mere thoughts themselves dont constitute an actus reus ◆ Wide range of things prohibited by criminal offences Result crimes → Causing a given result Conduct crimes → Performing a given action Crimes of omission → Failing 2 act/failing 2 prevent result States of affairs → Possession of drugs/firearms Mens rea ➔ Normally at least some of actus reus elements of offence must b accompanied by mens rea → some form of culpable mental state ◆ Eg. assault defined as intentional attack ➔ Strict liability offences → statutory offences that require no mens rea ◆ Controversial ↠ 1 commit them accidentally/mistake Defence ❖ Crim liability requires accused has no defence 2 their offending ↠ acting in lawful self-defence ❖ Accused bears burden of raising defence ❖ Once defence successfully raised prosecution m,jst prove beyond reasonable doubt that accused isnt entitled to it Exceptions ↠ defences of mental disorder & diminished responsibilities ↠ for the accused to prove Limits of the Criminal Law Most ppl associate crim law with trad core offences of harm 2 person & property ↠ murder, rape, assault and theft Modern crim law extends beyond these offences & scope is constantly changing Legal limits ❖ Virtually no legal limits on legislators power 2 create crim laws ❖ UK P & SP (within its competences) may criminalise any behaviour they think fit ❖ Legal obstacles: Human rights Compatibility with ECHR Legality Human rights ➔ Human rights laws tend not 2 explicitly address substantive crim law ➔ Sets limits on its scope tho ↠ ECHR protects rights 2 private and family life Art 8, freedom of expression Art 10 ◆ Crim laws could be declared incompatible with the ECHR if they interfere with these rights ➔ In practice challenges 2 crim offences on human rights grounds rare ◆ Articles all admit wide exceptions where prescribed by law ↠ states being granted margin of application as 2 their scope ➔ Grounds for exception also tend 2 cover most of the likely reasons 4 enacting new criminal offences ↠ public safety, prevention of disorder, crime & protection of health and morals Legality principle ➔ Forces restrain in how courts interpret the law ➔ Art 7 ECHR ↠ no punishment without law ◆ Criminal laws must be tolerably clear in their scope ➔ Courts forced to clarify and narrow scope of some offences even if not been prepared 2 declare them incompatible with Art 7 ◆ Smith v Donnelly ↠ breach of the peace Moral limits: some case studies ❖ Lack of legal limits on scope of crim law raises Q of its moral limits → of the limits on crim law that law-makers should observe ❖ Q extensively debated - many have come 2b sceptical abt legitimacy of some existing crim laws Case study one: Consent to harm and sadomasochistic sex ➔ How should crim law balance individual liberty and autonomy against there need to protect society  ◆ Should the crim law prohibit us from consenting 2 behaviour that could potentially harm us? ◆ Criminal liability for assault in context of consensual BDSM sexual activity Q: Should consent defeat liability for causing injury to others? ○ R v Brown ◆ English case ◆ HoL said no in context of sadochistic sexual activity ◆ Majority: activities immoral and dangerous ◆ Minority dissents: matter of private morality ○ R v Wilson ○ R v Emmet Case study two: Offences of possession ➔ Punishment for doing something wrong not sufficient 2 protect citizens ◆ Crim law often used 2 prevent harm by targeting dangers b4 they happen Preventive offence →criminalising people before they try to cause harm ➔ Impulse can be in tension with respect for individual rights & civil liberties incl those protected by ECHR ◆ Offences of possession ↠ drugs, weapons, dangerous materials Despite the pervasive reliance on these offences in modern crim justice systems their legitimacy has been questioned ○ Eg. Misuse of Drugs Act 1971, Criminal Law (Consolidation)(S) Act 1995 Case study three: Breach of the Peace ➔ Should conduct be criminal if its not harmful but merely alarming/offensive/annoying? ◆ Breach of peace historically covered such conduct ➔ Wide common law offence ➔ Used in many circumstances 4 2 impose liability 4 large range of behaviours ➔ Smith v Donnelly ◆ Breach of peace requires → 1) conduct severe enough to cause alarm to any reasonable person and 2) threaten serious disturbance to the community ➔ Conduct must be alarming to any reasonable person ◆ NB where nobody caused actual harm ◆ If no actual alarm caused conduct must be flagrant  Wotherspoon v Orr ➔ How public does conduct need to be to satisfy element (2) ◆ Harris v HM Adv ◆ Bowes v McGowan ◆ Hatcher v Harrower ➔ Some behaviours that may previously have been charged as breach of the peace but carried out privately ↠ criminalised by sec 38 (threatening/abusive behaviour) & sec 39 (stalking) of the Criminal Justice and Licensing (S) Act 2010 ◆ Possible some behaviour considered harassing not in these sections if not also threatening/alarming Ahmed v HM Adv ➔ SG drafted bill that includes new offences of misogynistic harassment ◆ Intends 2 introduce during the current parliamentary term Actus reus What is it? Conduct element in crimes Most crimes in these categories 1) Result crimes → Causing a given result ↠ homicide 2) Conduct crimes → Performing a given action ↠ assault 3) Crimes of omission → Failing 2 act/failing 2 prevent result 4) States of affairs → Possession of drugs/firearms Most crimes in 1st two Criminal liability requires an act Voluntariness ❖ Criminal acts must be voluntary → must be chosen & consciously controlled by accused ❖ No crim liability 4 involuntary conduct ❖ Presumption of voluntariness ❖ Ways of denying voluntariness 1) Automatism → action automatic when accused exercises no conscious control over it Lacking conscious control over action ↠ sleepwalking Total alienation of reason amounting 2 complete absence of self-control Ross v HM Adv  Defence 2) Reflex actions → cases where action but unintentional Does wording of statue matter? Hill v Baxter Does prior fault of accused matter? Ryan v The Queen Alexander v Dunn 3) Innocent agents → no action at all & accused gets caught up in causal process beyond their control Courts generally sympathetic ↣ no action = no liability Hugh Mitchell - not if no star Hogg v MacPherson 4) External events beyond the accused’s control → events beyond accused’s control cause them 2b committing a state of affairs offence E courts unsympathetic R v Larsonneur Winzar v CC of Kent Kilbride v Lake Continuing acts ❖ Actus reus & mens rea must coincide ❖ What happens if accused’s act initially accidental but later develop required mens rea? What r the boundaries of an act for the purposes of criminal liability? How far forward in time should accused’s acts b deemed to continue Courts developed this concept as solution Fagan v MPC Sexual Offences (S) Act 2009 sec 1(2)*** ❖ Thabo Meli v R Omissions General rule one cannot commit crime by omission → failing 2 act/failing 2 prevent harm S follows trend in common law jurisdictions of being reluctant 2 impose +ve duties in crim law Some statutory offences explicitly criminalise omissions Omissions liability only arise where particular kinds of duty exist ○ Accused has positive duty 2 act/prevent harm like: 1) Duties arising from relationship  2) Assumed responsibilities 3) Responsibility 4 dangerous situation 1 has created 4) Other legal duties ↠ contractual Duties arising from a relationship ❖ Children and Young Person(S) 1937 sec 12(1) Parents’ duties 2 children Duty is 2 take steps reasonable in the circumstances Bone v HM Adv ❖ R v Gibbins and Protocol - no if no star ❖ Unclear whether encompasses other relationships Eg. spouses, other family members Assumption of responsibility ❖ +ve duties can be acquired by assuming responsibility 4 another’s care ❖ R v Stone and Dobinson - E case Creation of dangerous situation ❖ Duty 2 remedy dangerous sitaution one creates even accidentally McPhail v Clark R v Miller ❖ Recent courts more reluctant 2 find duties of this kind Mallin v Clark McCue v Currie Contractual duties ❖ Causing harm thru failure 2 fulfil a contractual obligation may be criminal ❖ No modern S cases ❖ R v Pittwood Causation Element of actus reus of result crimes In most cases whether accused has caused given result can safely b treated as matter of common sense Law developed principles 2 deal with cases where disputes abt causation ○ Mostly homicide cases where liability on whether accused caused death 2 components ○ Factual causation ○ Legal causation Factual causation ❖ Factual causation → as a matter of fact was the accused’s act/omission a causal condition of the prohibited result ❖ But for test → but for the accused’s actions would the result have occurred Hendry v HM Adv R v White Legal causation ❖ Not all factual causes r legal causes ❖ Law distinguishes mere background conditions from causes 2 which legal responsibility may be attributed ❖ Law must select causes of result from among its many but for conditions ❖ No single test ↣ overarching idea of substantive cause that not 2 trivial/remote Substantial cause ➔ Act must be substantial factor in the occurrence of the result at the time when it occurs ➔ Enough that the accused’s conduct was 1 substantial cause among others ↣ doesnt need to be the only or main cause ◆ MacKay v HM Adv Thin skull rule ➔ Their particular sensitivities dont negate causation no matter how unusual ◆ Take your victims as u find them ◆ Bird v HM Adv ➔ Rule applies 2 non-physical characteristics ↣ character & beliefs & physical conditions and illnesses ◆ R v Blaue Breaks in legal causation: novus actus interveniens ❖ Chain of causation btwn accused’s acts and prohibited result deemed 2b broken by certain kinds of acts & events Intervening cause Categories: 1) Intervening acts of the victim 2) Intervening acts of 3rd parties 3) Negligent medical treatment 4) Intervening natural events Intervening acts of the victim ➔ If A’s acts cause C 2 harm themselves in an attempt at self-preservation then there is a possible break in the chain of causation ◆ If C’s conduct → is so unreasonable and unforeseeable as to be daft R v Roberts R v Williams & Davis McDonald v HM Adv ➔ Victim no duty 2 seek treatment ◆ R v Dear ◆ R b Blaue ➔ Where A’s actions drive C to harm themselves deliberately ◆ Law in this area uncertain ↠ E law suggests C’s conduct wont break chain of causation E law prosecutions for homicide by causing another’s suicide ○ R v Wallace ➔ Where A supplies drugs to C, C harms themselves by using the drugs ◆ S courts no break in chain of causation Khaliq v HM Lord Advocate's Reference MacAngus v HM Adv Ulhaq ◆ E law R v Kennedy Intervening acts of 3rd parties ➔ Common law rule that free and voluntary acts of 3rd parties always break a champion of causation → free deliberate and informed ◆ Voluntary not interpreted too literally R v Pagett ➔ Even where 3rd pary breaks chain accused still liable in some other way Medical treatment cases ➔ Generally courts wont find negligent medical treatment breaking chain of causation ◆ Wont do so if the accused’s act remains substantial or operate cause R v Smith R v Cheshire  ➔ Exception ↠ treatment so negligent that earlier action ceases 2b operative and substantial cause ◆ R v Jordan ◆ R v Cheshire ➔ withdrawing/withholding treatment ◆ Law Hospital NHS Trust v Lord Advocate Intervening natural events ➔ Reported cases rare ➔ Freak natural events break the chain of causation ➔ Must be so powerful and unforeseeable that accused’s acts cease 2b substantial cause ➔ Events to be sufficiently abnormal to render the accused’s actions a mere background condition 2 the prohibited result ↠ victim struck by lightning Mens rea Intro Culpable mental states that must accompany crim acts Various types of mens rea that suffice 4 crim liability ↠ Intention and recklessness Strict liability offences Act is not guilty unless mind is also guilty Actus reus → conduct elements & mens rea → mental elements of crimes Coincidence of actus reus and mens rea ❖ Actus reus + mens rea must occur concurrently ❖ Accused must have relevant mental state @ time of their criminal conduct ❖ Appropriate kind of connection btwn the two Fagan v MPC Transferred mens rea ❖ A shoots B intending to kill him, but misses and kills C instead Common law rule that A’s mens rea 2 B transfers to C Therefore guilty of C’s murder Doubtful whether in S law Bryne v HM Adv Roberts v Hamilton Intention Intentional wrongdoing usually thought 2b central kind of crim wrongdoing If crim offence prohibits doing/causing x then sufficient mens rea 4 accused 2 intend to do/cause x Not necessary for many offences ○ Lesser forms of mens rea suffice ↠ recklessness No technical definition → ordinary language meaning → purpose or what one means to do Distinguished from premeditation & motive which r irrelevant 2 liability ○ Palazzo v Copeland Defining intention ❖ S law rarely had occasion 2 give precise/tech def of intention ❖ Ordinary language def usually assumed One intends what is one’s purpose to do/what one means to do ❖ Distinguished from premeditation Should be distinguished from motive → accused’s ultimate ends/reasons 4 action Motive irrelevant 2 crim liability Indirect/Oblique intention ❖ Some jurisdictions recognise second species of intention oblique/indirect intention → accused forsees that their actions r certain to cause harm but causing harm isnt their purpose R v Woolin ↠ recognised oblique intention as type of intention in E law Doesnt directly intend result but foresees that its virtually certain 2 occur as result of their crimes ❖ S law → hasnt recognised oblique intention historically Bc intention not necessary mens rea 4 murder Now ↠ changing oblique intention received limited recognition Petto Recklessness Risk-taking → reckless accused is 1 who unjustifiably takes risk that their actions will cause given result S law  ○ objective def of recklessness → accused doesnt need ti subjectively believe they r taking a risk Exact definition depends on whether offence charged is statutory or common law crime Statutory offences ❖ Allan Patterson Defined recklessness 4 purpose of repealed and replaced offence of reckless driving as conduct that falls → far below the standard of driving expected of competent & careful driver This def cited in other statutory offences cases Black v Allan - vandalism Occasionally approved in relation 2 common law offences Recklessness virtually indistinguishable from mens rea negligence in other jurisdictions Common law offences: indifference & disregard ❖ Allan v Patterson def sometimes been applied 2 common law offences Gizzi v Tudhope ❖ Cameron v Macguire Recklessness in relation 2 common law offences → indifference to/utter disregard of the consequences of one’s action/for the public generally ❖ Focus on attitude ↣ did the accused’s actions display indifference/disregard Quinn v Cunningham Transco plc v HM Adv Other mens rea terms Wicked recklessness → specific 2 murder Negligence/gross-negligence Knowledge/belief Wilful blindness ○ Latta v Herron Dishonesty Strict Liability Offences Some statutory offences dont require mens rea → dont need 2b committed intentionally/knowingly/recklessly Absolute/strict liability offences Controversial  ○ Allows 4 conviction & punishment even where offence committed mistakenly/accidentally Regulatory offences v true crimes ❖ regulatory/public welfare offences ❖ Uncontroversial ↣ often regulatory offences ❖ Distinguished from what ppl call true crimes bc Aimed at corporations ↣ rather than individuals Enforced by specialist regulators ↣ rather than police & prosecution services Non-stigmatic Punishable by fines ↣ rather than imprisonment ❖ Some strict liability offences dont count as true crimes: They r stigmatic, imprisonable offences aimed at ordinary individuals Eg. possession offences When does an offence impose strict liability? ❖ No legal rule that requires statutory offences 2 include mens rea elements ❖ Some argue ECHR imposes limits on strict liability Courts in UK consistently refused 2 interpret Convention in this way RvG ❖ Whether offences imposes strict liability ↣ question of statutory interpretation Courts operate presumption that crim offences require mens rea Presumption can be rebutted ↣ if clear legislature intended 2 impose strict liability Homicide and Partial defences - 2 central homicide offences in S crim law - Murder & culpable homicide - Culpable homicide - voluntary and involuntary - Reduced from murder by partial defence - Road traffic homicide offences - Corporate homicide - Common actus reus element - causing death Actus Reus and Homicide Offences Homicide offences share common actus reus element MacDonald → destruction of life  ○ Liability of homicide offences on whether accused has caused the death Murder Murder ↣ any wilful act causing the destruction of life whether intended to kill or displaying such wicked recklessness as to imply a disposition depraved enough to be regardless of the consequences ○ MacDonald Therefore 2 mens rea elements sufficient for murder 1) Intention to kill 2) Wicked recklessness Intention 2 kill ❖ Drury v HM Adv Murder requires wicked intention to kill Not just intend to kill Murder → any wilful act causing the destruction of life by which perpetrator either wickedly intends to kill/displays wicked recklessness as to whether the victim lives or dies ❖ Lieser v HM Adv When is an intention wicked If accused intentionally killed in circumstances in which the law would regard as self defence or provocation then not wicked Wicked recklessness ❖ 2 essential elements 1) Intention to cause injury 2) Wicked disregard/indifference 2 possible fatal consequences HM Adv v Purcell ❖ Intention incl oblique intention → foresight that accused’s conduct virtually certain to cause injury Petto v HM Adv Prior to Purcell ↠ no requirement of intention Applied where accused’s intention couldnt be proven but their conduct displayed sufficient disregard/indifference 2 whether victim lived/died 2 justify a murder conviction ◆ Halliday v HM Adv ❖ Scottish Law Commission currently considering numerous aspects of law of homicide incl both elements of mens rea for murder Partial defences 2 Murder (Voluntary Culpable Homicide) 2 defences 2 murder available that reduce accused’s conviction 2 culpable homicide ○ Diminished responsibility ○ Provocation Partial defences → result in conviction lesser offence rather than full acquittal Unique 2 murder Voluntary Culpable homicide → Culpable homicide as result of partial defence Diminished responsibility ❖ Developed by S courts 19th century ❖ Criminal Procedure (S) Act 1995 sec 51B (inserted by Criminal Justice and Licensing (S) Act 2010 sec 168) Person who would otherwise b convicted of murder is instead 2b convicted of culpable homicide on grounds of diminished responsibility if person’s ability 2 determine/control conduct for which the person would otherwise be convicted of murder was, at the time of conduct, substantially impaired by reason of abnormality of mind ❖ Accused to prove this on a balance of probability Abnormality of mind ➔ Galbraith v HM Adv ◆ Defence requires abnormality of mind that must b recognised by relevant profession but doesnt need 2 amount to mental illness ◆ Include mental disorders ↠ sec 51B(2) but not limited to them Depressive episode can constitute a relevant abnormality ○ Gordon v HM Adv ➔ Statute provides that intoxication isnt a abnormality of mind ◆ Doesnt prevent 1 from being established ↠ sec 51B(3) Self induced intoxication is not a defence ○ Where there is intoxication & relevant abnormality of mind correct approach is 2 ignore former and focus only on effects of latter ◆ Rodgers v HM Adv ➔ Psychopathy no longer excluded ◆ HM Adv v Carraher Substantial impairment of capacity ➔ Abnormality of mind must have substantially impaired the accused’s ability 2 determine/control their conduct ➔ Expert testimony needed 2 address effects of abnormality on these capacities ◆ whether there is a substantial impairment in theory strictly is a question for the jury Galbraith History and reform ➔ Statutory test mostly replicates common law test following its reform in Galbraith ➔ Effect of both Galbraith & statute 2 bring S law diminished responsibility defence into line with E law ◆ Which adopted the defence thru Homicide Act 1957 sec 2 ◆ E law defence reformed thru Crooners Justice Act 2009 sec 52 2 key diff between S and E provisions ○ S law defence → applies only 2 impairments of the capacity 2 determine/control conduct ○ E defence → also applies 2 other incapacities ↠ 2 form rational judgements & understand nature of one’s conduct ◆ Applies only where relevant abnormality explains the defendant’s conduct → if it causes/significant contributory factor in causing it Provocation ❖ Overlap between provocation & diminished responsibility ❖ In some cases facts suggest both could b used in issue Graham v HM Adv ❖ Based on idea that → one is less culpable 4 killing when one’s self control is diminished ❖ Difference Provocation concerned with emotional responses 2 certain triggering acts rather than abnormalities of mind ❖ Drury v HM Adv Provocation requires that the accused was caused to lose their self-control as result of either 1) Assault 2) Sexual infidelity Provocation by assault ➔ Needs physical assault mere words not enough ◆ Singleton v HM Adv ◆ Donnelly v HM Adv ➔ If accused proked 2 lose their self-control their retaliation must b proportionate 2 the provoking act or not grossly dis-proportionate ◆ Thomson v Hm Adv ◆ Drury v HM Adv ◆ Gillon v HM Adv ◆ Elsherkisi v HM Adv Provocation by infidelity ➔ Only exception to rule that provocation requires an assault ◆ Includes admissions and acts of adulteries Rutherford ◆ Admission must be clear ◆ Applies 2 any relationship where fidelity is expected on both sides McKay ◆ Included homosexual couples ➔ Drury ◆ Makes clear proportionality test does not apply 2 provocation by infidelity ◆ Test whether ordinary person having been thus provoked, would have acted in same way Objective tests doesnt regard 2 accused’s particular characteristics E law: ○ R v Smith ○ Coroners and Justice Act 2009 sec 54 ➔ Scottish law Commission currently reviewing law of homicide & defence of provocation ◆ Recommend abolishing infidelity limb of this defence Immediacy of reaction ➔ Defence meant 2 target heat of the moment reactions ◆ Requires accused’s loss of control have followed immediately from provocation Thomson v HM Adv ➔ Problematic in cases of slow burn provocation  ◆ Empirical evidence suggests that loss of self-control often occurs as result of long course of abusive behaviour rather than single triggering act Domestic abuse victims who kill their abusive partners tend 2 come from slow burn reactions ○ Allegations that this defence is biased against woman → privileges the explosions of anger that men tend 2 experience over the fearful reactions of mostly female domestic violence victims Reformed defence in England: loss of control ❖ Coroners and Justice Act 2009 sec 54-55 ❖ Qualifying triggers Fear of serious violence Justifiable sense of being seriously wronged ❖ Sexual infidelity excluded ❖ Loss of control doesnt need to be sudden ❖ Test ↣ person of normal tolerance & self restraint but otherwise in defendant’s circumstances ❖ R v Thornton Involuntary Culpable Homicide Culpable homicide → various types of unlawful killing where accused’s culpability is less than required 4 murder ○ Macdonald → death is caused by improper conduct and guilt less than murder ○ Gordon → when choice between murder and culpable homicide the result doesnt depend on mathematical assessments of probability measured against the standard of reasonable foreseeability depends on moral judgement which could be summed up in question - does A deserve hanging Involuntary culpable homicide → unlawful killings where accused lacks required mens rea for murder ○ Liability can arise in both unlawful and lawful acts 2 categories 1) Unlawful act homicide → death caused by another criminal act directed against the victim ↠ assault 2) Lawful act/reckless homicide → death caused recklessly ↣ potentially in course of otherwise lawful act Unlawful act culpable homicide ❖ Assault + caused death = culpable homicide No further mens rea required + thin skull rule - broad scope Bird v HM Adv ❖ Constructive liability offence → no further mens rea required ❖ Unclear exactly which crimes other than assault count as unlawful acts 4 purposes of this offence Courts have limited this category 2 offences analogous 2 assault where conduct directed in some way against the victim MacAngus v HM Adv Eg. supplying drugs 2 others not relevant unlawful act & deaths caused must b prosecuted as reckless culpable homicide ❖ Position remains unclear Fire-raising ↠ Mathieson v HM Adv Theft ↠ Lourie v HM Adv Lawful act/reckless culpable homicide ❖ Accused may yet be liable 4 culpable homicide even tho lethal act was otherwise lawful Homicide requires mens rea going beyond mere negligence Paton v HM Adv Necessary to show gross or wicked or criminal negligence…a criminal indifference as 2 the consequences Gross negligence for these purposes → recklessness ◆ Transco plc v HM Adv Driving Homicide Offences Killings by divers can fall within def of general common law homicide offences & be charged as such ○ HM Adv v Purcell Juries reluctant 2 convict motorists of murder/culpable homicide ○ Prosecutors given option 2 charge specific, statutory road traffic homicide offence instead Causing death by dangerous driving ↠ Road Traffic Act 1988 sec 1 Dangerous driving → driving that falls far below what would be expected of competent and careful driver ○ Sec 2A  Other potential offences ○ Causing death by careless/inconsiderate driving ↠ sec 2B ○ Causing death by careless driving when under influencer of drink/drugs ↠ sec 3A ○ Causing death by driving whilst unlicensed/disqualified/uninsured ↠ sec 3ZB R v Hughes Stewart v HM Adv Assault and Reckless Conduct **come here from cases - non -fatal offences against the person 1) Offence of assault → applies 2 intentional attacks against others 2) Offences of reckless injury & endangerment Assault Attack upon person of another with evil intent ○ Actus reus ↣ attack ○ Mens rea ↣ evil intent Conduct crime ↣ focus on attack itself ○ Injury not necessary Single broad offence ↣ aggravating factors may b mentioned in indictment/complaint Actus reus ❖ Actus reus of assault → Attack on another person Attack → direct use of violence towards the victim Term understood broadly 2 include indirectly causing injury & threatening gestures creating fear of injury ❖ Extends 2 indirect infliction of violence Kay v Allan Threatening gestures sufficient 2 produce fear or alarm Atkinson v HM Adv ❖ S only has single offence of assault ↣ no additional offences that pick out particular aggravating factors Factors usually mentioned in indictment/complaint Aggravating factors ↠ include degree of injury caused/risked  context of crime ↠ use of weapons identity of the victim ↠ police officer in execution of their duty Mens rea ❖ Mens rea for assault → Evil intent Assault cannot be committed recklessly/negligently ❖ Intention to do something that amounts 2 an unlawful attack ↠ causing bodily harm/putting others in fear of such harm = sufficient mens rea for assault Smart v HM Adv Lord Advocate’s Reference Consent to assault ❖ 1 cannot lawfully consent 2 settle one’s disputes by means of fight Smart v HM Adv Consent not generally valid defence 2 assault ❖ No liability where A intends to only engage in lawful activity ❖ Cases where victim positively wants to be injured HoL R v Brown This approach ruled compatible with respect for private life under art 8 of ECHR Corporal punishment ❖ Corporal punishment of children satisfied def of offence of assault ↠ smacking ❖ Historically parents/guardians who employed this had defence of reasonable chastisement But it was abolished by Children (Equal Protection from Assault)(S) Act 2019 sec 1 Culpable and reckless conduct Culpable and reckless conduct → Number of offences covering conduct that causes/risks causing injury in absence of evil intent required 4 assault Nomen juris issue ↣ no requirement 2 name an offence in indictment/complaint ○ Confusion on how many offences & how they r distinguished from one another 2 general types 1) Reckless endangerment/endangering the lieges 2) Reckless injury Examples  ○ Discharge of firearms ○ administration/supply of harmful substances Mens rea of recklessness common law sense → indifference/disregard ○ Cameron v Maguire Reckless conduct and name of the offence(nomen juris) ❖ When person charged with crim offence ↠ not necessary since Criminal Procedure (S) Act 1887 2 provide name of that offence in the indictment/complaint Enough 2 allege facts that constitute crim offence whatever offence may be Charges often lengthy descriptions of facts followed by ↠ and thus u did murder him ❖ Most cases name of offence charged firmly established and clear from wording of charge In practice ↠ no confusion on terminology Culpable homicide charge may not use those specific words at any point but obvious from how charge is framed ↠ from the use of the words ‘and u did kill X’ ❖ Terminology not well established or clear fro,m wording of charge exactly what offence should be called Eg. report that mentions the conducting amounting to ‘culpable and reckless conduct’, reckless conduct’, ‘reckless injury’ Terms not synonymous Culpable & reckless conduct broad term → covering reckless inuring & recklessly endangering persons Reckless injury → restricted 2 reckless injury Culpably and recklessly endangering the lieges ❖ Long established offence in common law ❖ Lieges → public/section of public MacPhail v Clark ❖ Scope of this offence considered in context of suspects failing 2 disclose dangerous objects 2 police prior 2 being searched Normand v Morrison Mallin v Clark Culpable and reckless injury ❖ Previously charge of reckess conduct thought 2b relevant only if alleged endangerment of lieges Now accepted that recklessly causing injury is crim offence HM Adv v Harris HM Adv v Kelly Culpable and reckless discharge of firearms ❖ Species of culpable & reckless endangerment Sometimes considered 2b separate offence Cameron v Maguire Culpable and reckless administration/supply of harmful substances ❖ Administration long recognised as crime ❖ Offence culpably & recklessly 2 administer harmful substances 2 others ❖ Since 19th century Robert Brown & John Lawson ❖ Recently courts controversially held supply = 2 administration Applies even when person supplies is an informed and competence adult Khaliq v HM Adv Wider implications Borwick v Urquhart Sexual offences - Major change 2 law on sexual offences occurred with bringing into force of Sexual Offences (S) Act 2009 - Prior 2 this S law on SO was common law offences & unsystematic mix of statutory offences - 2009 Act implemented most of recommendations of Scottish Law Commission - Most of the law contained in 2009 Act bt pre-Act law still relevant - Sexual offending can go unreported 4 considerable time & charged frequently brought in respect of historic sexual offences - Often involves children Rape and SA 2009 Act recognises 3 categories of sexual assault offence 1) Rape 2) Sexual assault by penetration  3) Sexual assault Rape ❖ Sec 1 ❖ Actus reus of rape → penile penetration of the vagina, anus, mouth of another without that person’s consent Penetration = continuing act ↠ sec 1(2) References 2 penis & vagina incl surgically constructed body parts ↠ sec 1(4) ❖ Mens rea of rape → intention/recklessness as to the penetration and lacks reasonable belief in B’s consent ❖ Lord Advocates Reference 2001 - overruled earlier case of Charkles Sweeny 19th century Physical force not a necessary component for rape Before that - rape was defined as intercourse that occured forcefully and against a women’s will Law required physical force or a threat to be used to classify as rape After the case - around consent but still narrowly by penetration ❖ Up until 1989 H in law cannot rape his wife No rape within marriage Law changed in 1991 in E & Wales - in some places still the same SA by penetration ❖ Sec 2 ❖ Actus reus → 1) A sexually penetrates B’s vagina or anus and 2) Without B’s consent ❖ Penetration continuing act ↠ sec 2(2) ❖ Mens rea of SA by penetration → 1) intention/recklessness as to the penetration and 2) Lacks reasonable belief in B’s consent SA ❖ Sec 3 ❖ Actus reus of A doing any of the following things without B’s consent 1) Sexually penetrating B’s vagina, mouth, anus 2) Sexually touching B 3) Engaging in sexual activity in which there is physical contact with B 4) Sexually ejaculating semen onto B  5) Sexually emitting urine/saliva onto B ❖ Mens rea of SA → 1) intention/recklessness as to the relevant action and 2) Lacks reasonable belief in B’s consent Overlap ➔ Both SA by penetration & SA cover penile penetration ➔ Overlap btwn these provisions and rape sec 1 ➔ Why? ◆ 2 ensure prosecution is possible where its uncertain whether penetration was penile or not ◆ 2 ensure that prosecution possible where its uncertain whether there was penetration Offences of coercing or compelling sexual activity Sec 4 -7 of 2009 Act contain several offences of causing B 2 participate ion/involved with sexual activity Common requirements ❖ Sec 4-7 ❖ Actus reus ↣ B doesnt consent to activity ❖ mens rea elements A must intend action involved in offence A must lack reasonable belief in B’s consent A must have purpose of either - except sec 4 1) Obtaining sexual gratification 2) Humiliating, distressing/alarm B ↠ sec 5-7 A purpose was 1) Obtaining sexual gratification 2) humiliating, distressing/alarming B if in all circumstances it may reasonably b inferred A was doing the thing 4 purpose in question ◆ 2 determine A’s purpose irrelevant whether B was humiliated, distressed/alarmed by thing done by A ↠ sec 49 Sexual coercion ❖ Sec 4 ❖ Sexual coercion → Causing B 2 participate in sexual activity ❖ Doesnt require that A themselves engage in any form sexual activity with B  ❖ Casuing not further defined in Act ∴ Offence may overlap with previous ones Coercing a person into being present during a sexual activity ❖ Sec 5 ❖ Engaging in sexual activity in B’s presence/causing B to be present while 3rd person engages in sexual activity ❖ Applies 2 live sexual activity which B is actually present ↣ no need 2 prove B watched Coercing person into looking at sexual image ❖ Sec 6 ❖ Causing B to look at sexual image ❖ Still/moving image of 1) A/3rd party engaging in sexual activity 2) A’s/3rd party’s genitals ↠ sec 6(3) No requirement that image is real ❖ Sexual image not images of B/the complainer ❖ Revenge porn/image based sexual abuse → disclosing/threatening 2 disclose photo/film of complainer in/appearing 2b in intimate situation without their consent Sec 2 of Abusive Behaviour & Sexual Harm (S) Act 2016 ❖ Law Commission 4 E & W report on intimate image abuse Communicating indecently ❖ Sec 7 ❖ Commits offence by 1) Sending sexual verbal/written communication 2 B 2) Causing B to see/hear such communication ❖ Both written & verbal communications Sexual exposure Sec 8 Actus reus of sexual exposure → 1) A exposing their genitals to B in a sexual manner 2) Without B’s consent Mens rea of sexual exposure → 1) Intention as 2 the exposure 2) Intention that B will see A’s genitals  3) Lack of reasonable belief in B’s consent 4) Purpose of either obtaining sexual gratification/humiliating, distressing/alarming B Voyeurism Sec 9 & 10 ○ Create new complex new offence voyeurism ○ Added during P process in Sexual Offences Bill Previously some types charged as breach of peace Actus reus of offence involves A doing x without B’s consent 1) Observing B doing private act ↠ sec 9(2) KT v PF Falkirk 2) Operating equipment with intention of enabling A/C 2 observe B doing private act ↠ sec 9(3) 3) Recording B doing private act with intention that A/C will look at image of B doping the Act ↠ sec 9(4) 4) Operating equipment beneath B’s clothing with intention of enabling A/C 2 observe B’s genitals/buttocks/underwear where wouldnt otherwise b visible ↠ sec 9(4A) 5) Recording image beneath B’s clothing of B’s genitals/buttocks/underwear where these wouldnt otherwise b visible with intention that A/C will look at image ↠ sec 9(4B) Last 2 modes of commission added in 2010 2 target upskirting Private act sec 9 → sec 10(1) ↠ person doing private act if person in place which circumstances would reasonably b expected 2 provide privacy 1) Person’s genitals, buttocks, breasts exposed only with underwear 2) Person using toilet 3) Person doing sexual act of a kind not ordinarily done in public Mens rea elements 1) A lacks reasonable belief in B’s consent 2) A has purpose of either obtaining sexual gratification (A/C)/humiliating, distressing, alarming B Further mode of commission by sec 9(5) ↠ A installing equipment constructing/adapting structure with intention of enabling A/C 2 do any previously mentioned acts Consent B’s non-consent NB element of all above offences Concept of consent central NB 2 this area of law  2009 Act aims to set out +ve, co-operative model consent Uses 2 tiered definition 1) General definition of consent ↠ sec 12 2) Non-exhaustive list of particular circumstances in which consent deemed absent ↠ sec 13 General definition ❖ Sec 12 consent → free agreement No general guidance what that is Case law ↠ Agreement not free if mere acquiescence in the face of pressure bought about by A HM Adv v SM ❖ E law → person consents if agrees by choice & had freedom & capacity 2 make choice ↠ Sexual Offences Act 2003 sec 74 Particular circumstances of non-consent ❖ Further guidance provided in sec 13 B deemed not 2 agree freely 2 relevant conduct ❖ List deliberately non-exhaustive Even if circumstances not fall within sec 13 B might still be found not to 2 have agreed freely under general definition in sec 12 ❖ Sec 13(2) circumstances: a) the conduct occurs at time when B is incapable bc of effect of alcohol/substance of consenting 2 it Incapable of consenting due to intoxication ↣ intoxication not enough in itself What level of intoxication b4 B incapable Question addressed mostly in civil actions for damages for rape ◆ DC v DG Crim cases ◆ HM Adv v MMI b) B agrees/submists 2 conduct bc violence used against B/other person/threats of violence made against B/any other person Applies only 2 threats of violence against ppl Other threats not mentioned ↠ threats of things other than violence/against targets other than ppl B must submit bc of violence/threat  Relevance of violence during attack/history of violence in relationship? c) B agrees/submits 2 conduct bc B unlawfully detained by A Only unlawful detention Only detention by A not 3rd parties d) B agrees/submits 2 conduct bc B mistaken as result of A’s deception as 2 nature of the conduct Deceived as nature/purpose of conduct R v Williams No mention of deception by 3rd parties No mention of deception relating 2 things other than nature/purpose of act A’s being free from HIV ↠ R v B Wearing condom ↠ Assange v Swedish Prosecution Authority Use of withdrawal method Having vasectomy ↠ R v Lawrence Deception as to gender e) B agrees/submits 2 conduct bc A induces B 2 agree/submit 2 conduct by impersonating person known personally to B Doenst extend 2 uninduced mistakes Known personally Deception as to characteristics of A as opposed to identity Deception as 2 A’s gender at birth = no consent? ◆ R v McNaly ◆ R(Monica) v DPP COPFS transgender accused policy sec 5 ↠ guidance 4 prosecutors in relation 2 alleged sexual offences involving transgender accused persons Criminal Law Reform Now Network proposals for reform of law concerning deception, mistake and sexual consent f) Only expression/indiction of agreement 2 conduct from person other than B E case: DPP v Mordan ↠ clear no consent in such case under 2009 Act Sleeping/unconscious complainers ❖ Sec 14 → Person incapable while asleep/unconscious of consenting 2 any conduct Other rules on consent ❖ Sec 15(2) → giving of consent 2 1 sexual act doesnt by itself constitute consent 2 diff sexual act ❖ Sec 15(3 & 4) → consent may b withdrawn @ any time b4 completion of conduct Prior consent ❖ Prior consent → If B gives consent 2 sexual conduct in advance of its taking place Not legally effective No exception on rules 4 consent while unconscious/incapable due 2 intoxication ❖ GW v HM Adv Mens Rea as 2 non-consent Mens rea ↣ Require A lacks reasonable belief in B’s consent ○ Sec 16 → Regard 2b had whether person took any steps 2 ascertain whether there was consent & if so what those steps were Reasonable mistakes abt B’s consent DONT negate liability ○ Mistakes that r honest but unreasonable DONT suffice Objective mens rea rather than subjective in character Change from old common law ↠ unreasonable mistakes as 2 consent not guilty How can lack of reasonable belief in consent b proved? ○ Does it need 2b established by separate evidence from B’s lack of consent Cases post 2009 Act ○ Lack of reasonable belief can b inferred from same evidence that establishes lack of consent If evidence suggests A misunderstood the situation ↣ court needs to consider issue separately Maqsood v HM Adv If A aware of circumstances that mean no consent(ss 13 & 14) then cannot be argued they reasonably believed in b’s consent ○ LW v HM Adv The Meaning of Sexual Sexual → if a reasonable person would in all circumstances of the case consider them to be sexual ↠ sec 60(2) NB in cases where distinction between non/sexual touching in issue  Ferguson v HM Adv Protective Offences: Offences against Children 2 categories 1) Young children under 13 2) Older children 13-15 Young children ❖ Dont require lack of consent ↣ Child’s consent irrelevant ❖ Offences Rape of YC ↠ sec 18 Assault by penetration/SA of YC ↠ sec 19-20 Causing YC 2 participate/present during sexual activity ↠ sec 21-22 Causing YC 2 look at sexual image ↠ sec 23 Communicating indecently with YC/causing 2 see/hear indecent communication ↠ sec 24 Sexual exposure 2 YC Voyeurism towards YC ↠ sec 26 ❖ Strict liability 2 age of child mistakes as 2 child’s age no defence ↠ sec 27 E case: R v G ❖ Principle → YC deemed incapable of consenting Older children (OC) ❖ A is 16+ and B is 13-15 ❖ Diff principle → offences 2 protect older children who may b capable of consenting from exploitation ❖ Offences Intercourse with OC ↠ sec 28 Penetrative sexuality activity & sexual activity with OC ↠ sec 29 & 30 Causing OC 2 participate in/b present during sexual activity ↠ sec 31-32 Causing an OC 2 look at sexual image ↠ sec 33 Communicating indecently with older child/causing OC 2 see/hear indecent communication ↠ sec 34 Sexual exposure 2 OC ↠ sec 35 Voyeurism towards OC ↠ sec 36 ❖ Offence irrespective of whether child consent If lack of consent then sec 1-9 offences more appropriate ❖ Accused must be 16+  ❖ Offence of OC engaging in sexual activity with each other ↠ sec 37 A intentionally/recklessly penetrates B’s vagina, anus or mouth with penis A intentionally/recklessly with mouth sexually touches B’s vagina, anus or penis If B engages by consent in conduct → B also guilty of offence Offence introduced against recommendation of S Law Commission Recommended no consenting sex btwn OC should b criminalised ❖ 2 defences 2 OC offences ↠ sec 39 Reasonable belief that child was 16+ Defence doesnt apply if 1) A has previously been charged by police with relevant sexual offence ◆ UK SC held exception not law as incompatible with ECHR 2) A previously been convicted of relevant foreign offence against person under 1u 3) Risk of Sexual Harm Order against A A and B within 2 yrs of age Defence doesnt apply 2 offences involving penetrative sexual activity/oral-genital sexual conduct ❖ Principle ↣ OC capable of consent but must be protected from exploitation Interaction of 2009 Act and Older Law 2009 Act sec 52 abolished common law offences of ○ Rape ○ Clandestine ○ Injury to women ○ Lewd, indecent/libidinous practice/behaviour ○ Sodomy Act explicitly replaces any older rules of law regulating conduct that it covers Act repealed various statutory offences ○ Some of Criminal Law (Consolidation) (S) Act 1995 Sec 5 ↠ intercourse with a girl under 16 Sec 6 ↠ indecent behaviour towards a girl btwn 12-16 Sec 13(1)-(8A), (10-11) ↠ homosexual offences Some older offences remain ○ Incest ○ Public indecency Incest ❖ Law of incest not altered by 2009 Act ❖ Relevant statute = Criminal Law (Consolidation)(S) Act 1995 ↠ sec 1-2 ❖ Incest → limited 2 sexual intercourse btwn man & woman related 2 each other in certain defined relationships ❖ Formally incestous sexual activity short of penile-vaginal penetration could amount 2 crime of shameless indecency This crime no longer exists Webster v Dominick ❖ Growing opinion on saying it shouldnt be a crim offence Stubing v Germany Public indecency ❖ Common law offence ❖ Webster v Dominick Essential elements of the offence 1) Indecent conduct which 2) causes affront top public who witness it Indecent exposure or sexual conduct performed in public Abolished common law offence of shameless indecency & replaced with public indecent Shameless indecency long recognised offence Watt v Annan ◆ Case extended shameless indecency 2 cover obscene publications & displays & led 2 further expansions Certain types of sexual conduct & relationship ❖ Offence of public indecency left unaffected by 2009 Act Property Offences - 2 categories 1) Offences relating to dishonest acquisition of & dealing with property a) Theft b) Housebreaking & opening lockfast places c) Embezzlement d) Robbery  e) Extortion f) Fraud g) Reset 2) Offences of destroying/damaging property a) Malicious mischief b) Vandalism c) Fire-raising Offences of dishonesty Theft ❖ Actus reus → appropriation of property belonging to another without consent Historically theft → crime of taking and carrying away Requirement of taking distinguished it from related offences like embezzlement & fraud Now Taking ↝ appropriating core element Occurs even when possession of property taken lawfully Black v Carmicheal ◆ Any interference of the right of the owner ◆ Defines what appropriation is and what it can be ◆ Control & possession ◆ Deprivation of use Requirements 1) Appropriation must be of property 2) Corporeal moveable property Excludes ◆ Things which cannot be owned ↠ living humans Offence of plagium tho - children considered stolen from their parent Dewar v HM Adv ◆ Non-corporeal property Grant v Allan ◆ Heritable property 3) Property must belong to someone other than the accused One cannot steal their own property/property that isnt owned yet Abandoned property*  ◆ Prosecution 2 prove that the accused knew someone wanted to abandon the thing 4) Appropriation must occur without owner’s consent Appropriation can occur even when possession taken with consent Appropriation must be non-consensual Macloeod v Kerr and Another ❖ Mens rea → intention to deprive the owner of their property Historically Theft → required intention permanently 2 deprive owner of their property Now Theft → required intention 2 deprive temporarily/indefinitely Black V Carmichael Emerging question of dishonesty Thought not to be added to intention to deprive Kane v Friel Prosecution must prove the accused wanted to deprive someone else’s property and circumstances around the finding of the thing Belief in owner’s consent Lauder v HM Adv Housebreaking and opening lockfast places ❖ Not crimes in themselves 2 functions 1) They are aggravations of theft 2) They r criminal when committed with intent 2 steal HM Adv v Forbes ❖ Housebreaking → overcoming the security of any building Burns v Allan ❖ Opening lockfast places → breaking into locked places other than buildings ↠ cars, safes ❖ Aggravations to theft Theft by housebreaking, theft by opening a lockfast place Embezzlement ❖ Embezzlement → failure 2 account satisfactorily 4 property that has been entrusted to 1  Accused must be dealing with property on owner’s behalf b4 appropriating it to their own purposes ❖ Actus reus ↣ appropriation of property by 1 authorised to deal with it & owning duty to account for it 2 the owner Kent v HM Adv ❖ Mens rea ↣ dishonest intention 2 appropriate the property McCraw v Murphy ❖ With disappearance of requirement of taking property for theft → not clear whether separate offence of embezzlement Most cases of embezzlement could b charged as theft Reason 2 retain separata offence may just b 1 of labelling Theft may not adequately capture breach of trust involved in paradigmatic cases of embezzlement Robbery ❖ Robbery → theft accomplished by violence or intimidation NB 2 prove elements of theft but still treated as separate offence rather than aggravated form of theft ❖ Elements of theft must b established Robbery separate offence ❖ Degree of violence required * Morrison v HM Flynn Extortion ❖ Legal term for blackmail ❖ Extortion → making demands of another backed by threats Not restricted 2 making demands of economic nature/threats of violence ❖ No defence of legal entitlement Nor restricted to unlawful threats Black v Carmichael ❖ Not restricted 2 financial demands Rae v Donnely ❖ Existence of this offence notoriously difficult 2 justify Paradox of blackmail → why is it criminal to make a demand backed by threats when both may be perfectly lawful independent Fraud ❖ Originally economic crime ❖ Fraud → induce a person by false pretences to do something that they wouldnt have otherwise done False pretences must be material and not collateral matter ❖ Actus reus ↣ fraud must involve use of false pretences Historically needed economic loss Now - any practical result suffices Adcock v Archibald False pretences must b means of bringing abt practical result ❖ Mens rea ↣ knowledge of falsity of representation & intention to bring about practical result Mackenzie v Skeen Reset ❖ Reset → taking/retaining possession of stolen goods knowing they r stolen/being privy to the retention by a 3rd party of stolen goods ❖ Theft and reset mutually exclusive Person cannot be convicted of theft & reset of same property ❖ Actus reus ↣ being pricy 2 retention of property by another suffices Actual possession of stolen property no longer necessary Stolen property not limited 2 property acquired thru theft/robbery Incl property acquired thru breach of trust & embezzlement, falsehood, fraud and wilful imposition ↠ Sec 51 Criminal Law(Consolidation)(S) Act 1995 ❖ Mens rea ↣ knowledge the goods were stolen & intention to keep it from the owner Mere suspicion wont suffice Mitigated by rules concerning how such knowledge may be established Wilful blindness ↣ Latta v Herron Criminative circumstances ↣ Forbes v HM Adv Offences of Destroying/Damaging Property Malicious mischief ❖ Malicious mischief → intentionally/recklessly damaging/destroying another’s corporeal property ❖ Actus reus ↣ damaging/destroying another’s property HM Adv v Wilson  HC held: malicious mischief includes interfering with property as 2 cause patrimonial/economic loss ❖ Mens rea ↣ intention/recklessness Ward v Robertson ❖ Extension 2 economic/patrimonial loss Bett v Hamilton Vandalism ❖ Vandalism → any person who without reasonable excuse wilfully, recklessly destroys/damages any property belonging to another Sec 52 Criminal Law (Consolidation) (S) Act 1995 ❖ Malicious mischief vs vandalism Confirmed 2 separate offences ↠ Black v Allan Possible ways of distinguishing vandalism Form of recklessness required ↠ Black v Allan Reasonable excuse defence Application 2 patrimonial loss Fire-raising ❖ Bryne v HM Adv 2 separate offences of fire-raising 1) Wilful fire-raising Mens rea required ↣ intention Byrne v HM Adv 2) Culpable and reckless fire-raising Mens rea required ↣ recklessness Carr v HM Adv Defences General Defences → factors that defeat crim liability even when accused has committed an offence Defences that apply in relation 2 all offences ○ Self-defence ○ Necessity ○ Coercion ○ Automatism  ○ Mental disorder Some other defences apply only in relation 2 specific offences/groups of offences How defences work Word defence sometimes used informally 2 refer 2 any kind of answer that an accused might offer 2 a crim charge ○ May b used 2 refer 2 alibi offered by accused ○ Denial of mens rea ↠ that the accused committed the actus reus accidentally/mistakenly Claims = failure of proof/absent element defences Defences in strict sense is what we're talking abt ○ Defences → Claims that defeat crim liability even when accused committed the relevant offence Eg. even if accused committing assault they should b acquitted if their actions were in lawful self-defence Prosecution ↣ must prove beyond reasonable doubt that accused committed charged offence Accused ↣ bears initial burden of raising any defence ○ Accused’s burden ↣ only evidential → only of pointing 2 some evidence in support of the defence which would entitle the jury 2 give them the benefit of the doubt ○ Once this burden is discharged shifts back to prosecution Prosecution ↣ must prove that the accused is not entitled to this defence Some statutory defences r exceptions 2 this general rule ○ Accused required 2 prove them on balance of probabilities Eg. mental disorder & partial defence of diminished responsibility justifications/excuses/denials of responsibility Self-defence Self defence → permits use of force against unlawful aggressors in order 2 avert the threats that they pose ○ Applies in relation 2 3rd parties private/necessary defence q 3 Requirements in HM Adv v Doherty 1) Imminent danger 2 life/limb of accused/3rd party 2) Absence of opportunity 2 escape/retreat ↣ necessity of response 3) Proportionality  Mistakes & self-defence → self defence still available where accused was mistaken abt the relevant circumstances Imminent danger ❖ Imminent danger → Accused must have used force in order 2 prevent harm threatened by the victim ○ Defence applies where threatened harm was imminent Threats of future harm wont suffice Danger must be continuing at time accused used force Absence of opportunity to escape or retreat ❖ Absence of opportunity 2 escape/retreat → accused must have no reasonable opportunity 2 escape/retreat from the threat ○ McBrearty v HM Adv Person under threat cannot be expected 2 use means of escape which exposes him 2 equal/greater danger than use of force 2 defend himself In that sense in appropriate circumstances jury can consider whether any means of escape open 2 person under threat were reasonable Proportionality ❖ Proportionality → must b a proportionate relationship btwn the harm inflicted by accused & harm threatened by the victim Courts tend not 2 interpret this criterion 2 strict Force acceptable if not cruelly excessive Somewhat disproportionate use of force in self-defence may reduce murder 2 culpable homicide as result of provocation ❖ McCluskey v HM Adv Mistakes and self-defence ❖ self defence still available where accused was mistaken abt the relevant circumstances Eg. if person attacked didnt actually pose threat Mistakes judged by standard of reasonable belief ❖ Owens v HM Adv Coercion and necessity Coercion & necessity → accused was compelled 2 act as result of threats  Coercion → threat was made by another person Necessity → threats from nature/circumstance Diff from self defence ○ Bc they apply in offences committed against innocent 3rd parties Whilst 2 defences developed separately & regarded as distinct criteria governing them r similar Coercion ❖ Coercion → accused commits offence bc of coercion by threats ❖ 4 requirements set out in Thomson v HM Adv 1) Imminent threat of death/serious injury against the accused/3rd party Restricts coercion 2 cases involving threats of death/serious injury Defence generally applies only 2 threats of imminent and not future harm Exceptions to this rule Van Phan v HM Adv 2) Threat must have dominated the mind of the accused Accused will must have been overborne by the threats Threat must have been what actually caused the accused to commit this offence 3) Objective test Threat must b of such nature as 2 overcome the resolution of an ordinarily constituted person of same age & sex of accused Cochrane v HM Adv 4) No voluntary exposure 2 risk of coercion Defence not available where accused voluntarily exposed themselves 2 risk of coercion Functions 2 exclude defence where accused’s exposure 2 coercion resulted from membership in crim organisation/gang Thomson v HM Adv R v Hasan Necessity ❖ Necessity → threats from circumstances ❖ S law historically reluctant 2 recognise this defence ❖ Formally recognised by HC in Moss v Howdle + Lord Advocate’s Reference Criteria 2b satisfied  1) Imminent threat of death/serious injury 2 against the accused/3rd party Defence applies only 2 imminent threats Mistakes abt threats judged by standard of reasonable belief ◆ Lord Advocate’s Reference 2) Threat must have constrained the accused 2 break the law Accused actions myst have been necessary 2 avert the relevant threat Must be no reasonable alternative course of action available ◆ Moss v Howdle 3) Threat must have dominated the mind of the accused Accused’s commission of the offence must have been caused by relevant threat ◆ Dawson v Dickson 4) Objective test Defence only available if sober person of reasonable firmness sharing characteristics of the actor would have responded as he did ◆ Lord Advocate's Reference 5) Act must have reasonable prospect of removing the danger Lord Advocate’s Reference Coercion and necessity in murder cases ❖ Common law Coercion & necessity dont act as defences 2 murder R v Dudley & Stephens Law should allow ppl 2 choose amongst innocent lives ❖ S No reported cases have addressed this issue so law remains uncertain SL Commission considering where should be available in law of homicide ❖ Re A(Conjoined Twins) Automatism Automatism → Accused lacked conscious control over their acts bc of some external cause Previously thought not to exist in S law Recognised defence in Ross v HM Adv criteria  ○ Alienation of reason ○ Causes by external factor ○ Not self-induced ○ Accused not bound to foresee Alienation of reason ❖ Total alienation of reason amounting 2 complete absence of self control ❖ Cardle v Mulrainey Accused knew what he was doing & aware of the nature & quality of the acts and how it was wrong but cannot be said 2b suffering from some total alienation of reason Wrong: HM Adv v Sharp → moral wrongdoing ❖ What if accused knew what he was doing but couldnt control his actions → irresistible impulse Cardle v Mulrainey Caused by an external factor ❖ Alienation of reason must have been caused by factor external 2 the accused ❖ Previously dealt with in common law defence of insanity Now replaced with new statutory defence ❖ internal/external distinction diff 2 draw & results in arbitrary decisions Finegan v Heywood Not self-induced ❖ Accused not entitled 2 defence where alienation of reason was self induced Eg. voluntary intoxication Brennan Accused not bound 2 foresee ❖ Alienation of reason caused by external factor wont result in acquittal where accused should have forseen it Finegan v Heywood Ebsworth v HM Adv Mental disorder Comprehensively reformed by Criminal Justice and Licensing (S) Act 2010 ○ Abolished old common law of insanity and replaced new provisions inserted into Criminal Procedure (S) Act 1995  Mental disorder defence Unfitness for trial Provisions relating 2 proof & disposals These reforms followed recommendations of SL Commision on report on Insanity and Diminished Responsibility Mental disorder defence ❖ Requirements Sec 51A(1) of 1995 Act(inserted by sec 168 of 2010 Act) → person not crim responsible 4 conduct constituting an offence & 2b acquitted if person was at time of conduct unable by reason of mental disorder 2 appreciate the nature of wrongfulness of the conduct Mental disorder → mental illness, personality disorder/learning disability Sec 307 1995 Act + sec 328 Mental Health (Care and Treatment) (S) Act 2003 ◆ Excluded drug/alc dependency Test whether accused was unable 2 appreciate the conduct constituting the offence at time it was carried out Concept of appreciation meant 2b wider than that of mere knowledge Accused may know what they physically did but still fail 2 appreciate nature of conduct Defence may apply when accused knew conduct breached legal/moral norm but hard reasons for believing it was right thing 2 do Sec 51A(2) → person doesnt lack crim responsibility 4 such conduct if mental disorder consists only of personality disorder characterised solely by abnormally aggressive/seriously irresponsible conduct Defence wont apply 2 ppl with psychopathic personality disorder only Other forms of personality disorder may give rise 2 defence is ss 1 satisfied Psychopathic personality disorder may give rise 2 defence if co-existed with another mental disorder satisfying ss 1 ❖ Procedural aspects Only accessed able 2 raise this defence Sec 51A(4) → 2b proved on balance of probabilities  Courts retain power 2 order certain disposals of accused where they acquitted on grounds of mental disorder Eg. court may order detention of accused in secure hospital Unfitness for trial ❖ Unfitness for trial → accused must be incapable by reason of mental/physical condition of participating effectively in trial ❖ Common law Insanity could function as plea for bar of trial ❖ Sec 53F of 1995 Act Replaces common law plea with unfitness for trial ❖ Must b proved on balance of probabilities ❖ Statute sets out criteria 2b taken in to account in making this assessment ❖ Crown, Court & accused all remain able 2 raise issue of accused’s fitness for trial ❖ Court has regard 2 Ability of accused to understand the following: The nature of the charge Requirement to tender a plea to the charge & the effect of such plea Purpose of & follow course of trial Evidence given against them Instruct & otherwise communicate with their legal representative Any other factor the court considers relevant Intoxication Involuntary intoxication sometimes can constitute defence as foundation of plea of automatism ○ Voluntary intoxication no defence If intoxication was sustained as a defence ¾ of whole crimes in country would go unpunished Modern authorities ○ Brennan v HM Adv Evidence of voluntary intoxication cannot b used 2 deny that accused had required mens rea for an offence Voluntary intoxication is reckless in itself ○ Ross v HM Adv  Auxiliary liability - 2 kinds of crim liability that deviate from the standard model of crim liability - Standard model ↣ Individual person committing a completed crime - Inchoate offences → criminalise inciting, conspiring & attempting 2 commit other crimes - accused goes someway towards carrying out full offence but dont carry out full offence - Art & part liability → participants in crim venture liable 4 offence without actually committing it - Requires some kinda contribution to the crime - If someone agrees the crime should happen, and it actually happens - then those who agreed or came with the idea r liable - Those who didnt do much but where still there they can be liable for incitement - Form of derivative liability - allows participants 2 crime, to be found guilty of that crime (full offence) without having actually carried out the crime themselves Inchoate offences Inchoate offences → imperfect/incomplete auxiliary offences ○ Incitement 2 commit an offence ○ Conspiracy 2 commit an offence Possible 2 charge someone with either of these even if full offence is carried out ○ Attempt to commit an offence Dont require commission of the relevant complete offence Incitement ❖ Incitement → offence 2 incite another person 2 commit a criminal offence intending the principal offence 2b committed Eg. requesting/encouraging another 2 commit an offence ❖ Instruction 2 commit crime not required ❖ Must be serious intention that crime will be committed If offence is committed more likely b art & party guilty Possible 2 charge incitement & completed offence ❖ Baxter v HM Adv Accuse charged with inciting another man to commit murder  Charge based on a convo between them abt potential methods that could be used to carry out the killing + fee that could be paid for its commission In course of convo no actual explicit instruction 2 kill Accused tried to argue that this wasn't incitement bc no explicit instruction And that he never intended 2 carry out the killing and the other never intended for him to kill anybody Nothing on basis of our convo said there was any intention for accused to carry out the crime so we cannot be guilty of incitement Court held: 2 convict someone of incitement jury must be satisfied that there was a serious intention that crime was committed but not needed specific instructions Bc of the convo and motive of the killing it was enough 2 justify the conviction Dont need explicit instruction, just need intention 4 crime to be carried out Conspiracy ❖ Conspiracy → an agreement between 2+ persons 2 commit a crime 2 do something which would b crime if attempted by individual ❖ Complex indictments in S law State that X and Y did conspire 2 do certain act/conduct and in pursuit of that agreement did a number of other things General definition ➔ HM Adv v Wilson, Latta and Rooney ◆ Crim conspiracy → 2+ persons agree 2 render one another assistance in doing act whether as end or means 2 an end, which would b crim if done by single individual ➔ Maxwell and Others v HM Adv ◆ Crime of conspiracy → agreement of 2+ persons 2 achieve crim purpose Crim purpose → If attempted/achieved by action on part of an individual would itself constitute crime by law of S ○ Criminality of purpose and not the result ○ Thing agreed upon must b crime if carried out by one person alone ➔ Key elements = agreement + criminal purpose  ◆ No action in furtherance of agreement/purpose needs 2b proved No need 2 prove that any steps have been taken 2 execute this plan ◆ Agreement ↣ Need agreement to pursue this objective ➔ In practice ↣ actions of accused often provide evidential basis 4 finding that agreement existed ◆ Acts done in furtherance of crim purpose r liable in order 2 prove evidence that agreement existed ◆ Sometimes acts done to bring this crim purpose r needed 2 prove the agreement was made Agreement ↣ can be inferred from behaviour of those accused ○ No need for express agreement ○ Coleman ◆ Individuals charged with conspiracy to assault a group of men ◆ In furtherance of the plan they were charged with equipping themselves with weapons and making their way to were the men would be ◆ B4 they went out to the house the majority of them had met and agreed explicitly 2 carry out this planned assault but one of the members of group were not there at time and had gone out on an errand in advance of this plan ◆ When this away member came back the rest of the group was on their way to carry out the assault - only then was he given a weapon and tagged along with rest of the group ◆ While they were on the way he got involved in pressuring and pressured the others to join in ◆ He did things on route that suggested he was up for the plan ◆ Court:” even tho he didnt expressly agree to participate in the assault, his agreement could be inferred from his actions - fact he tagged along and tried to pressure others to join in showed he agreed with this crime Emphasises simply being in the company of other ppl who agree to carry out a crime - the fact they r present isnt enough to  suggest they should also be charged with conspiracy Acts done in pursuance of the conspiracy ➔ Conspiracy & acts carried out in furtherance of that conspiracy ◆ Such acts themselves independently criminal What verdicts are open 2 juries in these cases Eg. could be charge of conspiracy + doing certain things to further that agreement (in itselves further crimes) ○ Grouped together in single indictments ➔ HM Adv v Wilson, Latta Rooney (1968) ◆ Accepted that a jury could acquit accused ppl of an alleged conspiracy but convict of the crime allegedly done in pursuance of the conspiracy ◆ Can be separated out effectively ➔ Things diff if alleged crimes done in pursuit of the conspiracy r the only things that made the agreed plan a crime ◆ Sayers HM Adv Accused who allegedly conspired 2 further the purpose of the ulster volunteer force Alleged 2 further this group by criminal means by unlawfully acquiring firearms and explosives with intention 2 cause serious injury 2 property and danger to life Soliciting firearms to be used in connection with acts of terrorism Conspiracy charge - further the purpose of this group by criminal means ○ Means - unlawfully acquiring these firearms 4 use of terrorism Both these means were deleted from the indictment or the accused was acquitted of them ○ These 2 separate ways of how the conspiracy could be carried out were either acquitted or deleted ○ In the absence of these the alleged conspiracy were no longer an agreement to commit a crime ◆ It was the crim means that made it a crime in itself and with the deletion of them its no longer an agreement to commit the crime Requirement for more than 1 party ➔ Effect does this requirement have if only 1 of alleged parties is charged? Or if other acquitted ◆ Howitt v HM Adv 2 men charged with conspiring 2 set fire to a house and murder its inhabitants The 2 men were tried separately - underwent separate trials On 1st trial the accused plead guilty on the condition the charge was deleted for pleading 2 murder (ie he plead guilty 4 conspiracy to set fire on condition that the conspiracy to murder was deleted) ○ Plead guilty for conspiracy 2 set fire of the house but not for murder 2nd accused was convicted of the full charge of conspiracy to set fire + murder ○ As result of this he appealed s