Criminal Law Lectures PDF

Criminal Law **[Lectures]** - - - - - - - - - - - - - - - - - - - - - **[17/9/24]** #### Week 1, Lecture 1: ***Outline:*** *Criminal courts and the criminal process* *Sources of criminal law - case law, legislation, etc* *The structure of criminal l...

Criminal Law **[Lectures]** - - - - - - - - - - - - - - - - - - - - - **[17/9/24]** #### Week 1, Lecture 1: ***Outline:*** *Criminal courts and the criminal process* *Sources of criminal law - case law, legislation, etc* *The structure of criminal liability (what needs to be proved)* *Tomorrow: limits of the criminal law.* **[Criminal courts and trials]** 2 types of procedure: solemn (judge and jury, jury - familiar, trial with jury, jury are responsible of which matters if fact are proved and decides the verdict -guilty or not, judge is like a umpire, referee, making ruling son law, gives directions on injury on how to decide case) and summary (less serious cases - judge or panel of judges sitting alone, maters of law and decides verdict) 3 diff vlls of court - high court of justiciary, sheriff court and justice of peace courts (descending order og seriusness) High court - murder and rape, sheriff have juris over nay offence not for high court, vast majority happen here - summary or solemn. Most minor, trafficking offences, etc - justice of the peace courts. Sheriffs professional judges. Lame magistrates in JoPC, not legally qualified but sit w clerk or legal advisor legally qualified. Lot of cases are appeal courts - heard by 2 courts (high court can also be an appeal court - appellant capacity) and the sheriff appeal court (appeals in summary cases heard by them). Usually no appeal to supreme court unless on devoluted issues like capability w ECHR on HR. **Verdict and sentence** **Purpose -** Determine whether an accused person is guilty of an offence charged with. Guilty or not gilty verdict, guilty verdict is a conviction or an acquittal - free to go, no further consequences, cannot be further proceeding on that charge. S system - have third verdict verdict of not proven (acquittal) also available but may be son abolished. Laws POV - identical to not guilty verdict, equal to acquittal, can't generally be retried. Juries aren't told when to use not guilty or not proven so basically twins. Confusion understandably. Bill for SP that if will pass, will abolish not proven verdict. If found guilty, sentenced, almost always some sort of punishment (sentencing powers vary between courts - fine, prison or service). **The parties to a criminal case** **The accused:** person prosecuted (the defendant) - Eng case, in Scots law - the accused. **The Crown:** the prosecution (reflects how a prosecutor is public body, The crown office and procurator fiscal office. Who is prosecutor varies between solemn and summary cases.) Lord advocate is solemn cases - His Majesty's Adv, etc. Summary - in name of local fiscal, each sheriff court area has one (Jones v Smith for example). Alt, replacing actual name of fiscal or procurator fiscal of Edinburgh v Smith. Complainer;s aren;t party to case, don;t decide if it goes against, tis for crown. Fiscal at first instance say if it should go ahead, the crown brings it to court. **Sources of Criminal Law: Legislation** Both UK and SP have power to make criminal laws for S. BUT UK Parl rarely does so and many areas are as yet untouched by Scottish legislation as it's recent. Law on sexual offences is governed by S offences S act 2009. Reality, little is legislative based. Some areas reserved to UK P, e.g, drugs, firearms, terrorism (s act 1998 sch 5) - if try to do so, beyond incompetence. Scottish legislation on reserved matters us invalid unless purpose is to make criminal law apply consistently to reserved matters and otherwise s29(4) Still the source of most criminal law doctrine is still derived from ase law, developed by courts by generation through succession of appeal cases -classic common law style of development.) For a very long time, appeal court was effectively responsible for development although can no longer make conduct criminal on own initiative. The problem of common law crimesL flexibility, adaptability v vagueness/uncertainty (archaic language from old offences). Eg. = breach of peace (public order offence) and culpable and reckless conduct. **Sources of criminal law: institutional writers** Commentaries of common law from before the advent of official law reporting. Before had official public bodies, had institutional writers - still authoritative sources of law (in theory) in practice - little relevance, referred only selectively today. Most important is Hume 1797 and Mackenzie 1678 and Alison 1832 to lesser extent. Hume - his cousin of the philosopher, referred to most. Non-institutional writers, e.g, Macdonald and Gordon have also been influential in the development of common law. **The structure of criminal liability** **Offence - prosecution must prove all elements** (offence charged w and have no defence) For prosecution to prove all elements of offence charged with without reasonable doubt, if any doubt, should be acquitted. **Actus reus - wrongful act, conduct elements, 'objective' elements** Mens rea - guilty mind, culpability elements, subjective elements. - Mental state when doing actus reus, can convert into crime. (No) **Defence - accused bears initial burden of raising a defence; prosecution must usually then disprove.** Offence of assault for eg - attack on others with evil intent. The attack (actus reus) vs mens rea (evil intent, attacking INTENTIONALLY) or vandalism - destroying property with evil intent. Diff types of actus reus (prohibited act - assault) some other, more abt result that occurs - vandalism (result of conduct, someone;s property was damaged). More unusual, some criminal offences are offences of commission or failure to act or failing to prevent harm eg parent failing to give child food - omission. Charged w state of affairs - possession of prohibited substance like drug (state of affairs for which can be held responsible). Mens rea - intention and or reckless,e either or both. Not all criminal offences have mens rea elements - not all need elements of mens rea but most dom, generally common law crimes (do have this). Not for all statutory offences, legislature says doesn't need mens rea - liable for conduct committed by accident or by mistake - strict liability offences. The Crown must prove all elements of offence without reasonable doubt or acquittal. Also, no defence. E.g, assault, pushed someone, doesn\'t necessarily mean you\'re convicted w assault, self defence for example. Yes I attacked intentionally but did so to protect myself from other person. Accused has to issue **Defences** - to raise, discharge initial evidential burden , bring to court w supporting evidence, some eye witness for example, if do this, normal rule, prosecution must disprove that beyond reasonable doubt. 18/9/24 #### Week 1, Lecture 2: **Legal limits of criminal law?** - - - - - Scope of law should be minimally certain, should look at law content and see if bhv is liable to punishment or not. Very rare for leg to be incompatible w art 7 but see courts interpreting leg to compatible with legality principle, narrower definition. Should there be moral limits? **Case study 1: consent and sadomasochism** Offences against person - assault causing injury to others. **R v Brown \[1994\] 1 AC 212 (english case) - HOL said 'no' in context of sadomasochistic sexual activity.** **[24/9/24]** #### Week 2, Lecture 3: **[Actus reus]** 'Wrongful act', conduct elements, 'objective' elements. **What is an actus reus?** Mere thoughts themselves are not enough, but several types beyond this. Imagining death of the monarch was in the past - a form of treason. - - - - **Voluntariness** Criminal conduct has to be voluntary (chosen by or under the control of the accused). Implicit presumption that action is voluntary - assumed unless accused try to argue against this. *[Way of denying voluntariness:]* 1. 2. 3. 4. 1. Lost control over actions, sleep walking for example. Cases where accused lack conscious control over action. Total alienation of reason amounting to a complete absence of self-control. Extreme involuntary intoxication, slipped lots of drugs into drinks, powerful hallucinations, if severe enough, unaware of what doing, do something an offence might claim automatism. **[Ross v HM Adv 1991 SCCR 823]** 2. Cased where there is 'action' but it is unintentional Fully conscious,a ware but action is an accident, automatic reaction outside of control. Does the wording of a statute matter? **Unsympathetic to claims of this kind** **Hill v Baxter \[1958\] 1 QB 277** - even if reflex action, does action reflect wording of statute. Gy charged w driving offence, drove across red light and hit another vehicle, said dangerous action wasn't voluntary (blacked out) - liable based solely on definition of statute? Yes, he was driving dangerous. If had stroke, etc, may be not liable. **Does prior fault of the accused matter?** If action outside of control can also be a ground of liability. **Ryan v The Queen (1967) 121 CLR (Aus) 205** - robbed shop w loaded gun, shot and killed worker because something came as surprise. Said this was involuntary, surprised by other person in shop. Relied on prior fault principle - responsible for thi bc loaded gun, created a dangerous situation. Doesn't matter if last action was involuntary bc prior actions made it dangerous. 3. Get caught up in process beyond control, push over and window breaks,=, etc. Cases where there is no action at all - accused gets caught up in a causal process beyond their control. Courts generally sympathetic - no action means no liability. - Horse Drawn van blown over by gust of wind, lamppost broke, edinburgh council wanted him to pay but he didn't so charged him. Court sympathetic - there wasn't any action at all, simply victim of unfortunate circumstances. 4. Events beyond accvused's control cayse them to be committing a state of affairs offences. English courts generally unsymoathetic - - **Continuing Acts** Avteus reus and mens rea must coincide - crown need to nto only show actus reus and mens rea must satisfy in same moment to be convicted of an offence. Raises q if act accidental bit later mens rea aterialises. Court debeloped concept of continuin acts as a solution to this problem - that can be enough for ovncitoin. **Fagan v MPC \[1969\] 1 QB 439** - parks car, police doesn think its close enough to pavemenet, moves, accixentslly drives on police officers car, annoyingly didn;t move car. Put on car, no mens rea. Continuing acts -- included leaving car for another 25 s and failing to move it when knew it was on his leg provokignly. Impact is softened by continuing acts element. **Omissions** Conduct not positive action but failignot act 9negative atcus reus element0 Generally, howeer, no liability 'commission by omission' - cant become liable for that offence if \... Result of act, failure to prevent harm is not enough. Positive duty to act or prevent harm is when suc liability only arises: 1. 2. 3. 4. 5. 6. a. Duties arising from relationshh Most common eg. parents; duties to children. Children and young persons (S) Act 1937 s12 (1) - unnecessary harm to health. Duty is to take steps reasonable in the circumstances: Bone v HM Adv 2005 SCCR 829 Unclear whether this category encompasses other relationships (e.g sposes/artners, children to parents, other blood relatives, emebes of same household) Assumption Volutnarily assumed resposibiltyof another person but then englect those and cause injury Positive duties can be acquire by assuming responsibility for another;s care Example - **R v INstan \[1891\] 1 QB 450 -** lived w aunt, old woman, ignored health probelms failed ot seek medical attention or give food or tell others, aunt died. Patyl by neglect di dshe suffer, defendnt convicted of manslaughter even if didnt actively cause it. Not fact it was aunt but vuluartily took responsibly over aunt adnd idnt take care of her. **R v Stone and Dobinson \[1977\] QB 354 -** Couple where one sister came ot live w them, cared for badly, room w no ventilation, hard access to washroom, became bedridden and at one point defendants did try to hel\[, tried to unsuccessfully seem to take her to doctor, but gave up and she died from ifnection. Not blood relative to other in couple but charged w mansaughter bc took into hojme, failed to do tus sastifaotirly so victim died. **[25/9/24]** #### Week 2, Lecture 4: **Omissions recap:** Generally no "commission by cinussin": one cannot commit conduct or result crimes by failing to act or failing to prevent harm Exceptions are where law recognises a positive duty to act or oto prevent harm, e.g, - - **3) Creation f a dangerous situation** Have duty to put situation right and revent potential harm, duty to remedy dnagerou situations that on creates even accidentally. **[McPhail v Clark 1982 SCCR 395]** Accused set fire on stub of fire on land, upwind of another farm, spread to another field, caused a thick cloud of smoke, drifting over road, causing collision between two cars bc low visibility. Charges not applied to actual setting of fire but not oing anything, appealed against reckless engagement but appeal court said no, it was his duty to remedy the danger. **R v Miller \[1983\] 2 AC 161** Blamelesllu caused fire, fell asleep whilst smoking, dropped out fingers, set fire to room, caused several hundred pounds, didn't do anything abut it and mved t another room. Recent corts hae been more reluctant to find tduties of this kid **Mallin v Clark 2002 SCCR 901** Failed to disclose existence of syruge Mallin v Clark Unguarded syringe, police officers injured themselves on needle, failing disclose syringe. Appeal court quashed this conviction, crown didn\'t provide any basis for thinking their was a positive duty to disclose existence of syringe. McCue V Currie 2004 JC 73 - broke into caravan to steal, night-time so used cig lighter to see, unexpectedly, lighter burst in hands - dropped lighter and caused a fire. Accused ran away from scene failed to do anything, reckless fire starting. Result diff from first two cases - appeal court: no mens rea, fire was accidental, couldn\'t be a conviction. Difficult to reconcile with McPhail, charges slightly different though - in McPhail, failure to do anything about the fire Here, was about fire raising, If the crown approached another way, maybe could have ben convicted. McPhail v Clark - endangered people on roads, failed to do anything about fire. **4) Other legal duties** Cuasing harm through failure to fulfil a contractal obligation may be criminal, no modern scottish cases. Cf. R v Pittwood (1902) 19 TLR 37 If cause harm bc of failure to complete contractual obligation, can make you criminally liable Convicted of manslaughter as result of failure to close gate at level crossing, some people were on railway tracks as train came by, got hit by train didn\'t actively cause the deaths (defendant - Pittwood) - It was his JOB, contractual obligation to take care of crossing. Difficuty here is Pittwood is ony case on point. More trnative, no direct auhtority but its apersuasive case. **Causation** Causation is an element of the actus reus of result crimes E.g, Homicide. Prosecution must establish that the accused was the cause of this act/the result that happened. Typically common sense BUT sometimes gives rise to signif disputes particularly in homicide. Causation normally common sense, if shoot someone and die from blood loss, not an issue of causation but can be more complicated. Accused must be of the factual and legal cause of the relevant result, both need to be established... defendants need to be both. Factual causation - matter of fact, were accused \'s actions a casual condition of the prohibited test. Casual connection between these two things. /But for/ cause - but for ht eaccused conduct, would harm still occurred? **[sine qua non test.]** Would the harm have happened if take accused\'s conduct out? Buck something test. Attempted murder. Causation in fact - sine qua non test. R v White (1910) 2 KB 124 - posioned mum's drink with cyanide, mum actually died of heart failure not cyanide, no casual link between his action and mother\'s test. **Legal cause** Very many but forfactual causes of any given harm that occurs. E.g, one but for cause of fire damage is oxygen in atmosphere but dont want to place legal responsibility on this. Law must select \'the causes\' of a result from among its many \'but for\' conditions No single legal test for legal causation, no. of diff rules being developed to handle specific type of cases. Accused must be one substantial course among others **[(MacKay v HM Adv 2020 JC 314)]** Some causes are bigger causes than others. Very trivial, then won't count as legal cause. Immediacy too? Too far back in time. Legal causation in criminal law is about determining which of the many factual causes of harm should be legally recognized as the cause of that harm. Here are some key points: 1. - - 2. 3. 4. Criminal contex,t dont need to be primary cause of harm but one substantial facto ramong others. Can be a hard area of law to understand, remember what the point of this area is, point is to allocate legal responsibilities for harm that has occurred. Accused doesn\'t need to be only cause of harm or even primarily, enough that they\'re one substantial factor among others. **[(MacKay v HM Adv 2020 JC 314)]** 3 people in altercation over bag of drugs, victim tried to swallow, one of other two again tried to retrieve it from her mouth, some point the victim died and investigation found the direct cause was strangulation to her head, several blunt force injuries (only potential contributing causes - may have contributed to death, lead to stress speculatively.). STRANGULATION = main cause. Jury only found first co-accused responsible for strangulation, first was found to be responsible for blunt force injuries like bruises. Second appealed against conviction on basis of post mortem evidence, show injuries I was responsible for weren\'t substantial cause of death - appeal court agreed, conviction of assault substituted instead. Point of this area of law - not trying to find scientific reasons of why but legal responsibilities, harm as occurred and who do we want to hold responsible. **[The \'Thin Skull\' Rule]** Pre-existing characteristics of victim before events occur, don\'t negate (nullify) causation, no matter how unusual or significant they are. Pre-existing liability doesn't negate liability. Take your victim as you find them, acknowledge victim could have unknown susceptibilities. **[Bird v HM Adv 1952 JC 23]** Accused chasing victim down road, believe she stole money, victim tried to get into passing car to escape accused and was grabbed by shoulder, victim promptly collapsed and died from shock, unforeseeable consequence but convicted. Accused had to take victim as he found her, convicted bc of the thin skull rule - doesnt matter of unusual susceptible, even though unforeseeable, didn\'t negate causation. *[Rule applies to psychological characteristics.]* **[R v Blaue (1975) 3 All ER 446]** Defendant convicted of killing person, stabbed her, victim told in hospital that she needed a blood transfusion, doctors confident. However, victim was a Jehovah Witness, refused transfusion, died. Upheld - taking victim as you find them means accepting religious belief as well. **[Novus Actus Interveniens / Intervening Cause]** An event that intervenes between the act of the accused and the result? Stops attribution of harm to accused, causation chain breaks. No overarching test, no. of diff categories that law developed with subtly diff rules. 1\) Intervening acts of victim themselves (what they might do to contribute to own harm) 2\) Intervening acts of third parties that may impact process (acts of others of victim and accused) 3\) Negligent medical treatment (historically treated to others of third parties) 4\) Intervening natural events like freak acts of nature Acts of self preservation, accused presents some kind of threat to victim, victim takes action to prevent harm to selves. In doing this, cause selves to get harmed. Acts of SP will only break chain of causation if they are extremely unreasonable and unforeseeable - *[\'daftness test\']*, breaks chain. If not, responsibility rests with accused. **Contrasting cases** **[R v Roberts (1972) 56 Cr App R 95]** Defendant and victim (young woman) who were in a car together, victim SA\'ed, threatened to inflict violence on her. To escape, jumped out of moving car and was caused injury, appeal court - no break in chain of causation: not a daft act, proportionate response to sexual assault and threatened physical violence. Accused can still be held responsible. **[R v Williams and Davis (1992) 1 WLR 380]** - limit case, diff response to Roberts Group in a car, victim was a hitchhiker defendants picked up, defendants at some point asked hitchhiker for money. When money wasn't handed over, defendants try to take money from his wallet, jumped out of car, suffered injuries that killed him. Robbery & manslaughter. Appeal - court decided this fell on other side of line, unlike Roberts in fast car, was very unforeseeable response to someone trying to take your money. Normally law very sympathetic to victim unless unreasonable. Victims don\'t have duties to seek treatment, can\'t say your victim should have had treatment to be fine - **[R v Blaue]** (no duty to accept blood transfusion). **[R v Dear (1996) Crim LE 595]** - stab wounds after fight, didn\'t want to carry on living, didn\'t matter that might have survived, courts decision said it\'s not any defence for the murder charge. Person who stabbed them was responsible. *[Supply of drugs or other harmful substances]* If person A supplies drugs to person B and B decides to cause harm with this voluntarily, does this break chain of causation? **[Khaliq v HM Adv 1984 JC 23]** - accused charged after supplied glue sniffing kits to children, legal items, charge - endangered the children by supplying these things to them. One argument on appeal - action of children voluntarily using substance seemed to break chain of causation. Ch Court disagreed - accused\'s conviction was upheld. Ulhaq v HM Adv 1991 SLT 614 - court came with same decision even though victims were fully autonomous adults, no break in chain of causation. Case similar to Khaliq. Same principles even in homicide offences. **[Lord Advocate's Reference (No 1 of 1994) 1995 SLT 248]** revisited in **[& MacAngus v HM Adv 2009 SLT 13]** First case - amphetamines, second - heroin, Victims took them, died. Did voluntary act break chain of causation? Court said there was no break, accused still responsible so these cases have said you can kill someone by giving involuntarily substances that they kill themselves with. **[HM Adv v C 2007 SLT 963 &]** **[1/10/24]** #### Week 3, Lecture 5: Causation has both Legal causation stager - looking at aall the factual conditions for a result. Causation is an element ofr result firmes. Requires both factual and legal causation. Novus actus interveniens, i.e. intervening acts and events that break the chaino f causation: - - Intervening acts of third parties - If not person directly causing harm, doing assisting or encouraging, you're not the cause of the harm that occurs - doesn mean youre not liable for anything. Could be guilty under weapons legislation, might also be responsible for assisting or enciraging the offence. Even if chain or causation broken, can still be liable for acts if just assisting. Free, deliberate and informed are matters of degree. If third party pressured intoacting, law may say its not voluntary so cannot be responsible. R v Oagett (1983) 76 Cr App R 279 Taken gf hostage, police found out, armed police unit followed to place where he lived (block of flats), took his gf up the stairwell to block of flats, very dark, police followed into stairwell, heard a gunshot, returned fire believing under threat. Unfortunately, couldnt see bc of darkness, Pagett was using gf as a human shield, killed the gf. Third ps literally - police killed the gf. Action of officers didnt break the chin of causation, doing duty as serving officers and scted in defnce of selves bc of duty and defense - court said your actions arent truly voluntary, hostage taker is responsible. Don't think its right to ,ake the police responsible, always think abt who is responsible. Negligent medical treatment - cases where person has caused an injury, injury needs medical treatment but its negligent or harmful so contributes to eventual consequences for the victim, might worsen or even kill/. Negligent medical treatment can in theory break CoC, most courts reluctant to do this. Provided injury caused by accused (a substantial or operative cause), accused will still be responsible generally. R v Smith (1959) 2 All ER 193 - Smith involved somebody w stab wound, hospitalised, received clearly negligent medical treatment but stab wound hasn\'t healed, victim still in hospital, courts - case of 2 substantial causes that both contributed. Stab wound was a cause and the treatment, negligent treatment did not break chain of causation. As long as initial injury is a substantial cause, wont be a break in causation. R v Smith - yes there was a stab wound, it had not healed yet and then they received negligent treatment/negligent but stab wound hadn't healed so still substantive cause of death. Died but would\'ve died anyways bc wound hadn't healed. Not healed so thats the cause. R v Jordan (1956) Stab wound, treatment negligent so victim died. Initial wound inflicted by accused had healed over, successfully treated, solely negligent treatment they received which was the cause of death. If not for accused's actions, wouldn\'t be in hospital, treatment alone was cause of death as earlier injury was no longer an operative cause. Wound had healed - no longer substantial/operative cause of death, inflicted more pain than the wound itself. Wound had healed but the medical treatment made it worse. Probability thing - most likely if it was medical treatment and wound healed, no break in CoC. Is the cause of death the medical treatment or the wound itself. Law is sympathetic to medical professionals usually. Intervening acts of nature - e.g, punch someone and knock them unconscious, whilst unconscious and struck by lightning, causes death - would not be responsible - so unforseeable or unreasonable. Not just human actions but freak actions of nature can break chain of causation. Crown must prove all thingies that person chstged with 0 actus reus and mens rea. Mens rea is the guilty mind element, subjective, culpability elements Actus non facit reum nisi mens sit rea - the act is not guilty unless the mind is also guilty. Mens rea has to coincide with the actus reus together, must be concurrent (haooen in sme moment). Continuing acts Intended ot kill person A but killed person B - general rule in common law rule: mens res can transfer in both circumstances, intended to ikill A but mens rea transfers to person B Roberts v Hamilto 1989 JC 91 Person in fight involving 3 people , swun heavy ibject trying to hit one person, hit other person so voncincted of assaulting that second person. Appeal court - yes mens rea does transfer, had actus reus in relationt o person B and mens rea transfers to second Byrne v HM Adv - person set fire to some object to cenrtre of room, fire spread away from object and got out of control, caused damage to the floor and walls of the room and other objects contained in the room. This guy was convicted of willful fire raising, required intention - guy said I only tried to set fire to a small pile of papers (defence). Appeal court gareed - couldnt be guilty of willful fir raising in relation to those items, had no mens rea. [Intention] Intention normally sufficient mens rea of most criminal offences. Is not always necessary but sufficient for most. Intention hasn't been given intentional definition in case law. [Pre-meditation] Does not need to mean something was thought of in advance, all thas needed is you meant to do this thing on purpose and you did it. Intention is diff from motive (whats the ultimate goal/reason - WHY?) Imagine that youve assaulted somebodu for instance - why did you assault this person, I hated this person.. Etc. Question is did you do this, not why. Intention relevant to criminal liability but motive isn't. Indirect/Oblique intention Accised doesnt directly intend a result, wasnt their purpose but nevertheless foresee that this result is lileky to occur, pretty much certain to occur. Imagine put bomb in plane - did this to blow up plane to get insurance money, all passwengers die, can you say you didn't intend to kill the passengers, just wanted to destroy the aircraft. Some ppl, seems a little odd. Strictly speaking, don't intend it in sense of doing that on purpose. Some jurisdictions view this as apart of the.. intention. R v Woollin (1999) 1 AC 822 Second sense of intention is part of the definition of intention. Petto v HM Adv 2012 JC 105 Confronted w q of a consequence that was very obviously foreseeable claimed dint meant ot do that, appeal court tempted to say thatf or this limited purpose? Definition of intention does include orseeability. RECKLESSNESS - most important mens rea concept after intention. Might not intend to kill this person but if you take a risk of that consequence coming about, that can still be sufficient mens rea. Scots law - 2 sligtly diff definitions of reckless, objective definitions - accused need not sibjectively beliebe they are taking a risk Classic def for statutory from Allan v Patterson 1980 JC 57: "\[A\]ll that Parliament requires the court or the jury to consider and determine is the degree to which the driver in question falls below the standard to be expected of a careful and competent driver in all the circumstances of the particular case, and whether the degree is such as properly to attach in the judgment of court or jury the epithet or label of 'reckless.' Recklessness for driving offences - falling below standard to be expected of a careful and competent driver in all the circumstances of the particular case Is it really a definition of recklessnes? Numerous citations approve this definition in context o0f other statutory offences but a lot of these cases cite Allan v Paytterson but doesnt focus on wha it was on, definiton explicitly mentios drivers so should translate for other contexts. B;acl v Allan - vandalism Reckless endangerment, appropriate definition of it is in Allan v P (Gizzi v Tudhope 1983 SLT 214) Burt this case is an outlier, most part, cases w common law crimes? : Cameron v Maguire 1999 JC 63: "\[I\]n so far as we are dealing here with a crime at common law... we, for our part, are content to adopt... the test laid down in Quinn v Cunningham, namely that there should be 'an utter disregard of what the consequences of the act in question may be so far as the public are concerned' or, as re-formulated on the following page of the report... that there should be a 'recklessness so high as to involve an indifference to the consequences for the public generally'. mORE TO DO WITH THE ATTOTUTE OF THE AVVUSED, HAS TO be indiff to harm caused, not caring as mc=ich as they should abt the consequences or there must be an attitude of disregard. **[2/10/24]** #### Week 3, Lecture 6: **[Mens rea recap]** Actus non facit reum nisi mens sit rea the act is not gyulty unless the mind s also guilty. Can't just do actus reus, need a culpable ment state as well. Intention and recknpessness Intention (intend to do/ what one smeans to do) is sufficient mens rea for most crimes Feckpessness sometimes also suffices : two difntions Statutoru offences: fLLING below the standard of care and competence to be expected in the cicurcmtances Common law offences: accused indifferent to/ utter disregard of the potential consequnes of one's actoina Came fro Quinn v Cunningham 1956 JC 22 Dangerous cycling, too fast, ran blind corner, iht oedestrians. Definition of rrekclessness ahs been prived in ths circunstacne but on evidence weren't convinced ther was no csrin if injured accused or not. Carr v HM Adv 1994 JC 203 - broke into church hall, tdropped paper used as torch, no suggestion this was intentional. Neverehteless, had required mens rea bc had this TTITTUDE TO indifference fo potential consequences, didnt care abt possibility. **[McDowall v HM Adv 1998 JC 194]** - accused of reckless hiomicide, pulled out behidn another car, went to opposite crriageway, went faster than should, tried to pull back in front of other car and clipped the other vehicle causing death of other possible. Tried to stop the accodent but still took risk, went in wrogn lane, driving fast. **[Cameron v Maguire 1999 JC 63]** - remote rural area, highc alibre rifle, teating it w bag at rear of proeprty, trying to see accuracy, nobody injured, recklessly endagered people who may have been walking, might miss and hit someone using public footway. Mens rea approved. Took rish, still convicted. **[Transco plc v HM Adv 2004 JC 29]** - \\GAS COMpany uspplying gas to area of houses, gas explosion killed series of peole, vomapny knew therewere risks to possibility that supply waa unsafe an dwas risk fo explosion, didnt ell them. Disregard and also party aware of risk, awareness of risk isn't required in Scots law/ **[Wicked recklessness]** Diff from normal, suffices for mruder **[Negligence/ gross negligence]** (homicide is an example) **[Knowedge / beleif]**need to nkw orepresnetation theyre making is false like in fraud. rESET - Need to know property is stolen Belief - accused had resoanble beleif in consent pf complainer Willful blindness - were offence needs knpowkedge, wilful blindness can suffice fo rknowlegde, not thinking of possibility. E.g, reset - might have idea was stolen property but close ur mind to it. **[Latta v erron 1967 SCCR Supp 18]** Dishonesty? Property offences, theft and embezzlement, historically wasnt in t. **[Strict liability offences]** Some offences dont need mens rea, controversial bc theres no element of mens rea, guilty even if nto at fault for doing what you did. E.g, property damage - mixed a box, didnt knwpfragile items in it, sorry - might seem ufnair to vconvcit me of a crime bc pure accidet, wasn't even recklessness. Allow conviction and puiishmen of offences committed by accident or raosnable mistale/ Reguatry offemces or true crimes - not too cotnroversial, e.g, food safety regulation, can result in criminal carhges but diff from what we think of crimes, not enforced by police, normally dont result in trials, only fines usually. But sometimes very serious crimes are strict liability - prhobits possession of firearms, automatic weapons, madnaotry minimum sentence of 5 yrs in prison. Firearms Act 1968 s 5 - come into weapon like this, havent personally checked this, still guilt yof this, dont even need to knwo it he;d a firearm. There is no legal requirement that statutory offences include mens rea. UK courts have refused to interpret the ECHR as imposing such a reqyirementL **[R v G \[2009\] 1 AC 92]** Some have tired ot argue ECHR goesa against strict liability, HOL said enough, mens rea not mentione dinvolved in these offences. If silent, court will presume an element of mens rea is in here but Parl does what its want so if clear legislator wants there not ot be element of mens rea, court will follow this. R v G - no reasoanbble mistake can be used as a defence. Rather, when interpreting cirinal statutes, court presume tha offences require mens rea. This presumption can be rebuttrd if clear legislature intended to impose strict liability. **[Weeks 3-4]** #### Homicide - - Volutnary culpable hoicide (reduced from murder by a aprtial defemce) Involuntrayr culpable homicide Road traffic homicide offences Corporate homicide All share samea ctus reus eelemtn: causing another's death. Homciide offences are reult crimes, result is soeone's death/ Problem q on homicide, need to thi k fo rules on causation. Main thing we look at is mens rea bc similar actus reus. \"Murder is constituted by 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, Criminal Law of Scotland, 5th edn (1948) Murderi s offence of causing death and e of two forms of mens rea wills suffice, either or, just prove one. Intention o kill or wicked recklessness. 1. "\[The Macdonald definition\] is somewhat elliptical because it does not describe the relevant intention. In truth, just as the recklessness has to be wicked so also must the intention be wicked. Therefore, perhaps the most obvious way of completing the definition is by saying that murder is constituted by any wilful act causing the destruction of life, by which the perpetrator either wickedly intends to kill or displays wicked recklessness as to whether the victim lives or dies. Saying that the perpetrator 'wickedly' intends to kill is just a shorthand way of referring to what Hume (i, 254) describes as the murderer\'s 'wicked and mischievous purpose', in contradistinction to 'those motives of necessity, duty, or allowable infirmity, which may serve to justify or excuse' the deliberate taking of life." Remark of Lord Justice-Geenral (odger), **[Drury v HM Adv 2001 SLT 1013 at \[11\]]** Unfortunate bc in case not even abt this issue. Rodger didnt even say what wicked means. Fortunately, susbewuent cases have said what wicked means. Wicked intention - intended to kill and also lacked relevanct defence, not actingo n self defence. Drury didnt change law, all Rodger wanted to say you canot claim a defence. Intention is sto kill is sufficient mens rea to mruder, mus tbe wicked - no defence. "It is, of course, as counsel rightly pointed out, clear that at least four of the bench \[in *Drury*\] considered that self defence and provocation were conceptually to be seen, where relevant, as relating to the primary question of whether the accused could be said to have had *mens rea* for murder\... \[But\] it seems to us to be reasonably clear that all the court was concerned to stress was that if an accused intentionally killed in circumstances which the law would regard as meeting the requirements of self defence or, failing that, in circumstances in which the law would regard him as having acted under provocation, he could not be said to have acted with the necessary 'wickedness' for murder" **[Lieser v HM Adv 2008 SLT 866 at \[11\]]** 2. Now reqiorws (1) intention to cause physical injury **and** (ii) wicked disgreard of possible fatal consewuences Diff from ordinary **[, HM Adv Purcell 2008 JC 131]** Intention to cause some physical injury and wicked disregard of fatal consewuences of action. Two part def - both of 2 things, intentionto cause some physical injury and wicked disregard of fatal consewuences. Indifference ot whetrher victim lives or ides, similar to normal defintion of recklessness. Mere recklessness is not enough, need ome hostile intention, ro cause physical injury. Dangerous/reckless driving, so reckless rose ot wicked recklessness. Hit a child on crossing when lights were red, over speed limit, child hit, murder charg ejustified. Covnciton for mruder could not stand jurst a lesser homicide offence, mens rea didnt rise to this, appeal court - we beleieve wicked recklessness nedds an intention to injure.. Didnt intend ot hurt charge just very reckless bhv. In this context, 'intention' includes indirect/oblique intention, i.e foresight that the accused's conduct was virtually certain to cause injury: Know/virtually certain consequence will happen and do it anyways even if dont intend harm. Some jurisdictions adopt this second definition of intention. **[Petto v HM Adv 2012 JC 105]** Couple of guys killed anotuer, wnated to dipose body, set fire to body of person kille to dispose, started fire, predictably spread to other flat - elderly woman had smoke inhalation and died of injuries suffered. Now charges w murder of one person and other of upstairs flat. Originally decided ot plead guilty but changed mind after Purcell - well I didnt mean to harm person upstairs. Before **Purcell:** no requirement of intention. Intention in these cases, Appeal court weren't preapred to allow tgat 0 itnention sould be read as including indirect or oblique intention, yh didnt mean to harm person but must have seen someone would get hurt if start fire on ground floor, mustve knpown. - - - **[8/10/24]** #### Week 4, Lecture 7: 2\) Wicked recklessness Expanding definition of murder beyond intentional killings Intention can be difficult to prove, intent to kill or injure? Problems if we limited definition of murder to the intention to kill only. Before Purcell: no requirement of intention **[Cawthorne v HM Adv 1968 JC 32]** Cawthorne was an attempted murder case but court said required mens rea was insane for both offences, guy who had an argument with his wife and it turned violent. Three other people in the house at the same time and wife and other three people barricaded themselves inside a room in the house. The accused had a shotgun and fired indiscriminately into the room even if the door was closed. Risk of fatal consequences. **[Halliday v HM Adv 1999 SLT 485]** - 2 brothers beat victim to death, outside of a house and when the incident was over, left body on the ground outside the house. Went inside, seen shaking hands and congratulated each other on how greT BROTHErs they were, washed clothes, didn\'t call an ambulance, came outside the house then realised the victim died then called an ambulance. Charged with murdering the victim, an issue about required mens rea was present. reAppeal court satisfied wicked recklessness. Was there - indifferent to cause of death? Indicated didn't care much if the victim lived or died, nobody tried to seek medical attention, were laughing in fACT. Arthur v HM Adv 2002 SCCR 796 - accused and his wife had long violent history of getting into violent fights with one another, in one incident, wife was killed. Medical evidence in case suggested the cause of death was her inability to breathe. Accused's version was that he didn't intentionally mean to do this to his wife, she attacked him first so he pinned her to the ground so that\'s what caused her to be unable to breathe. Q about whether we believe the accused's story. Still could satisfy murder charge even if didn't intend bc if put entire body weight, there\'s a serious risk of fatal consequences being taken there. All previous cases pre-date Purcell Wicked recklessness requires something more than jist disregard, needs intention to cause physical injury. **[Culpable Homicide]** "When it comes to a choice between murder and culpable homicide the result does not depend on mathematical assessments of probability measured against the standard of reasonable foreseeability, but depends on a moral judgement which\... could be summed up in the question 'does A deserve hanging?'" Gordon, The Criminal Law of Scotland (2002) vol. 2, p. 299 Murder is unusual in carrying a mandatory penalty if caught with it, how severe is the punishment. Previously was the death penalty. CH reflects judgements about cases where a person has been killed but does not want to place such a serious mandatory punishment on the accused but there\'s some circumstances where killing is not bad enough to have that mandatory sentence, slightly more sympathetic light for the accused. If you want to not give prison for life, need another charge - culpable homicide is there to do. Begin by doing.. Accused entitled to a partial defence, the effect of this partial defence is to reduce what otherwise would be convicted for murder to a conviction of culpable homicide, a person can then escape the mandatory life sentence. [Partial defences because don't result in full acquittal: diminished responsibility or provocation.] Unique to murder (although may act as mitigating factors at the sentencing stage in other cases). - "A person who would otherwise be convicted of murder is instead to be convicted of culpable homicide on grounds of diminished responsibility if the person\'s ability to determine or control conduct for which the person would otherwise be convicted of murder was, at the time of the conduct, substantially impaired by reason of abnormality of mind." Could have been convicted for murder but their ability to determine/control conduct has been substantially impaired. 1. Includes recognised mental disorders s 51B(2) Must be recognised by a relevant profession but need not to amount to a mental illness, does not need to be diagnosable. Mercy killings - **[Gordon v HM Adv 2018 SLT 278:]** accused in Gordon was a husband who killed his wife, she was chronically ill (chronic lung disease) and also contracted terminal lung cancer, suffering a great deal of pain but she also didn't want to go to a hospital, very afraid of hospitals and wanted to stay at home. It was accepted that she had a pact with her husband that he would end her life if her suffering became unbearable to her. This is not the same as some of those other cases involving attacks with that much provocation against other people, more sympathetic cases, don't want him having life in prison - defence of diminished responsibility accepted. Due to pressure the husband was suffering, diagnosed from suffering from a depressive episode brought on by severe strain with wife being so ill. EPISODE OF DEPRESSION-TYPE SYSTEMS = RELEVANT ABNORMALITY. Exclusion for psychopathy personality disorder - specific type of personality disorder which exists partly in antisocial violent behaviour, excluded under old law but no mention of this in the new statute, no limit on the kind of mental limits brought by these offences. Only thing limited is that intoxication does not constitute an abnormality of mind nor prevent an abnormality of mind's establishment: **[s51B(3) Rodgers v HM Adv 2019 JC 150]** **The expert** technically shouldn\'t give an opinion on if their conduct was substantially impaired, the jury will be told the diagnosis and decide that. \(2) Substantial impairment of capacity Abnormality must substantially impair capacity to 'determine or control' conduct Expert testimony will normally be needed to address the effects of an 'abnormality' on these capacities But whether impairment was substantial enough is strictly for the jury to decide: see e.g. Connelly v HM Adv 1990 SCCR 504 Galbraith v HM Adv 2002 JC 1 Statute follows Galbraith - very similar in terms of E\'s defence to diminishing of responsibility, slight irony is that around the same time the S Law Commission, E Law was reformed as well. S law into line with old S law, E law moved to a new direction. **REWATCH LAST 20 MINS** **[History and reform]** Galbraith and the new statute essentially replicate English Homicide Act 1957 s. 2 However, English law was also reformed at around the same time: Coroners and Justice Act 2009 s. 52 Two key differences from Scots law: Includes impairment of other capacities, e.g. cognition and judgement Impairment must 'explain' conduct E defence is narrower - impairment explain's causes conduct, this disorder caused you to do this, court must draw a causal link between the two. Don't need to do this in Scots law. This is why you behaved the way you did. But E defence is more generous to accused. **[Provocation]** Concerned w cases where accused's capability to control selved was impai9red,c an kill itnentioally in circumsatcnes where youre not able to control self.. About effects of certain provocative acts, can kill bc provoked into losing self control. MUST be a provoking act. Only 2 types of provoking acts that qualify - accused or sexual infidelity. Included slightly confusing comments about the required mens rea for murder, main point is that it essentially redrew the law of provocation. Ongoing controversy on what elements is required for the defence, Drury case considered this - LEADING CASE. **[Drury v HM Adv 2001 SLT 1013.]** Redrew law of provocation, ongoing controversy so this case solved that. Provocation is where accused\'s capacity to control themselves was impaired, can lose self control. Has to have been a provoking act that made accused lose self control. ONLY TWO QUALIFY: - - \(1) **[Provocation by assault]** Provocation normally requires an assault -- mere words are not enough: **[Cosgrove v HM Adv 1990 JC 333 ]** Involved an accused convicted of murder after he had gone to the victim's house, after had heard the victim had been accused of sexually assaulting a young girl. Victim happily confessed to the crime when accused confronted him, told him everything that happened whilst smirking and not showing signs of regrets of what was done, this provoked him to lose self control. Beaten victim, causing a death. In his defence, the accused tried to use provocation but was unsuccessful as we were talking here about mere words, no matter how provocative they\'ve been. Words aren't enough if there was no assault. ***[Insults and taunts cannot constitute the relevant provocation.]*** **[ Singleton v HM Adv 2011 SCL 838]** Two people involved had got involved in a fight that started out as a verbal altercation, at one point, one of the people involved had issued a threat to the other so was provoked. Even if a threat instead of a taunt, did not rise to the level of assault and therefore still wasn't enough for provocation to succeed. - War of words outside football club, no physical attack, deceased person didn't attack accused physically, behaved very aggressively towards the accused. Challenged him to a fight, "what have you got", pulled out a kitchen knife and stabbed and killed him. An assault does not necessarily always require a physical attack. If person made threatening gestures causing fear or alarm, can count. However, Smith was just bravado - no threatening gesture so unless line crossed, still just words. One of proportionality so there\'s been a provocation by assault, the question Jury needs to ask itself is if the reaction was proportionate to the provocation. Was the reaction not grossly disproportionate? Can be slightly disproportionate but not too much. Accused's reaction must be proportionate to the provocation (or not grossly disproportionate): **[ Thomson v HM Adv 1985 SCCR 448]** Accused and victim were two former business partners who fell out with one another for reason that the victim had been degrading the accused. Threatened unjustified law reviews against accused, arranged meeting, took knife to meeting to defend self if need arose. Meeting mostly passed off without any problems but when the accused got up to leave, the victim went to restrain him and this caused the accused to snap and pull out the knife and killed the victim. There is a very minor assault, more than just words, provocation defence wasn't successful fo the reason that the reaction was competent disproportionate to the minor assault that had been offered. **[ Robertson v HM Adv 1994 JC 245 ]** Another case here convicted to murder after stabbing the victim to death, evidence was that he had been provoked into doing this. In this case, the provocation was alleged to have threats and unwanted sexual advances towards him, quite minor assault of putting hand on leg. Q on proportionality, on appeal, court happy for there to be a murder conviction of this case. **[ Gillon v HM Adv 2007 JC 24]** **[ Smith v HM Adv (above)]** illustrates same point, two fights outside football club, bravado and stuff but doesn\'t assault them, not just a case where there was no assault. Even if there were, relationship btw two were really disproportionate. Aggressive words disproportionate to killing someone. **[9/10/24]** #### Week 4, Lecture 8: **[Partial defences recap]** Voluntary forms of culpable homicide - satisfies definition of murder, required actual reus and mens des but culpable homicide bc of partial defences (not a full acquittal). **Diminished responsibility** Provocation - accused provoked to lose self-control either by 1. 2. **2) Provocation by infidelity** Doctrine goes back hundreds of year, if husband killed cheating with and man, not charged with murder. Expanded to any relationship, extend to clear admissions of infidelity. Didn't see partner but called; admission is enough, needs to be clear, don't need to witness. **[HM Adv v Hill 1941 JC 59]** : second world war, serving soldier, suspected affair, found both together and they admitted to him. That admission made him lose his self control and kill both, provocation was allowed to go to Jury. **[Rutherford v HM Adv 1998 JC 34:]** married but separated for years, still in church, victim told husband she had affair with another man and was trying to end it. Took it well at time but victim changed her story and claimed "she had been screwing the guy for months under your nose and enjoyed every moment of it", reacted and killed wife. Judge didn't let provocation pass, wasn\'t the first time listened this. Appeal court - enough he was learning these new details even though already knew about it. Limit - admission has to be clear. **McCormack v HM Adv 1993 JC 170**: on-and-off relationship, during diff, wife implied father wasn't dad of their children, when husband killed, tried to use provocation. Court - no clear admission of infidelity, it was hinted at. McKay v HM Adv 1991 JC 91 - not married. Hm Adv v McKean 1997 JC 32 - same-sex marriage, one woman killed other. - Jury - test doesn't apply to provocation by if identity (Drury) Test is whether ordinary person would be liable to react in the same way. What characteristics does the 'ordinary person' have? Issue in other jurisdictions, other places have used reasonable person type tests. What if a person has a characteristic that diminishes their self-control, less impulse control? English law, reasonable person, has whatever characteristic the accused has so if has anger issues, also has anger issues. Court confronted w someone - lack ordinary capacity to self control due to capacity to absolve abuse. Said it was too far? Compromise - accused person gives all their characteristics to the ordinary or reasonable person except those that bear on their capacity for self control and restraint. **[Immediacy of reaction]** Accused's reaction must follow immediately from provocation, delayed reactions don't count. Looks like calculated revenge if not. 'Heat of moment' Thomson case from yesterday - guy and former business partner, immediate trigger that matters (held back) not previous history like the years of fighting. Parr v Hm Adv 1991 JC 39 - accused and victim (mum) violent relationship, built up over time and what triggered was a relatively trivial assault. Only immediate reaction we are concerned with. Downside: Longer relationships when there is a history of violence, slow burn reaction to violence - relationship btw two ppl, long history of DV, typically men abusive towards female partners, subject partner to long campaign of abuse. Something trivial leads to murder. People sympathetic, should avoid murder charge but can't because law only concerned with last instance. Provocation defence even if it's neutral, in practice, favours men and not women. Sex/gender bias against this defence. Women typically stopped due to immediacy requirement. Law Commission looking at new defences for murder. Alternative ways of reconstructing defence - English law of partial defences formed in Coroners and Justice Act 2009 ss. 54-55. Replaced with loss of control - loss of control needs one of two 'qualifying triggers' - - English law extends to saying fear of violence is enough not specific act Much narrower in way that explicitly crosses out sexual infidelity, ruling out that as a qualifying trigger. Loss of control need not be sudden, around immediacy requirement. Person with normal tolerance and self-restraint but otherwise in defendant's circumstances/characteristics. Not reasonable person. **['Involuntary' culpable homicide]** 2 varieties: - Unlawful act homicide - involves death caused by another unlawful act (normally an assault) Lawful act or reckless homicide - death caused recklessly (potentially in course of otherwise lawful act) 1. **Offence + death** Any assault that causes death whatsoever is culpable homicide. Causation of death and assault. No need to prove further mens rea is required; constructive liability (constructing liability of one offence out of another defence) 'Thin skull' take victim as found them, unusual vulnerabilities and unforeseeable, does negate causation. Bird v HM Adv 1952 JC 23 - grabbed shoulder, died from shock (not normal) doesn't matter she was susceptible to harm, ingredients caused her death. Homicide offence. One punch homicides or killings - freakish turn of events, cause death even if assault is minor - culpable homicide. **Burns v HM Adv 1998 SSCR 281** Two people at pub, got in fight, one swung a punch in other, no great force but through bad luck, victim moved head, hit skull, injured artery and killed them. No appeal on offence, appeal on sentence - community penalty. Murder is serious enough, mandatory life sentence. Culpable homicide, court might decide there's no way for a prison sentence. Clear that if an assault causes death = culpable homicide. What else beside assault counts as relative unlawful act: MacAngus v HM Adv 2009 SLT 137 (vague) - not just assault, cases analogous to assault that are directed in some way to victim. Court didn't give indication of what unlawful acts fall. Issue itself was death by drug supply. Saw from causation point of view, supplier can be cause of death. Drug cases don't full under culpable homicide but reckless culpable homicide. Victim accused of culpable homicide bc set fire, burned down building. Rewatch this bit. Lourie v Hm Adv 1998 SCCR 634 - defraud way into victims house, elderly woman, witnessed theft so victim with heart condition had heart attack and this caused her death. Appeal court quashed culpable homicide, not enough evidence showing death was a result of this unlawful act (theft). Any thing causing death is culpable homicide but got rule that said this applies to other acts analogous to assault (MacAngus) Lawful act/reckless homicide - definition vague - gross negligent equals criminal negligence. Now, Lord Osborne \> Transco plc v HM Adv (No 1) 2004 JC 29 - gas company gave gas, exploded, aware of risk, death of many. Gross negligence means recklessness in common law sense given in Cameron v Wire. - Effectively, gross negligence used in patonc ase, just means recklessness in commonlaw sense given in Caemron v Maguire. Recklessness fr purpose of commonlaw crimes was used indifference to or disregard of your actions. Transco - terms gross negligence means negligence in sense of Cameron v Mag If looking at charges of lawful ac tof homicide, was there an actus reus inc ausing death if so, the mens rea needed ot be establishe dis recklessness in that sense. Was there any differenc3 to or disregard towards consequences fo your actions. **[15/10/24]** #### Week 5, Lecture 9: #### Assault and reckless conduct **[Road Traffic Homicide Offences]** Killing by drivers can fall within the definitions of the general homicide offences, e.g, **[McDowall v HM Adv 1998 SCCR 343]**- motorist overtook car ahead, went in opposite lane and killed passenger. **[HM Adv v Purcell 2008 SLT 44] -** how do we define wicked recklessness, hit child, charged with mruder and convicted wih culpabe homicide. These offences don;t have exclusive jrusidction over that area, killings but drivers can fall under mruder and manslaughter. Jury hesitant to do this though. But juries perceived to be reluctant to convict drivers of murder and culpable homicide. Road Traffic Act 1998 thus creates several dedicated driving homicide offences. S1 - death by dangerous driving. Dangerous drivings falls far below what would be expected of a competent and careful driver (s. 2A) Other offences of xausinf death by: - - - - - - **[Corporate homicide]** Explitly in chagreof corporate homicide. E.g, Transco - culoanble homcide. Bu orpsictin companies is difficut, one main reason - had to find senior manager causing satisfign this mens rea so now there s a creation of this new act; Corporate Mansalughter and corporate homicide act 2007, s 1: Must be a dut of care wed by org to vitim Gross breachof duty of care Breach caused victim's death BreH MUST Have resulted frpkm how the company's activities were 'amanged or organised'. This is easier to prsoecute than like in Transo for homicide. **[Assault -]** intneitonally attacking other people Mens rea of recklessness unites both. - - - Assautl is a classic example of conduct crime - focus on aytack itsef (injury not necessary), result -concerned w outcome of accused's actions. A single, board offence - aggravating factors may b e mentione din the indictment / complaint. Does the accused's conduct amount ot attack even if no injry caused. It's only one offence, Brown - charges of assault to bodil harm and greivouw, etc. In Sctland, just one offence that covers everything. Minor push to whateer. Aggravatin factors mentione din complaint. Degree of injur caused, identity of victim, weapon used - infleunce sentence (aggravating factors), charge is same but punishment depends on these. Actus reus: attack upon the person of another Direct inflcition fo violence is th epardaim case - punching, etc. Borderline cases created difficulty - ;ots pf cases exmainnign boundaries of concept f attack. Indirect infciion of violence ay be anattack and now threatening gestures sufficient to produce fear or alarm. **[David Keay (1837) 1 Swin. 543]** accused whipping horse, horse buck and threw off child, stomped on child, carhed w assautlign xcuilf. He hadnt himself hit child, assault should be limtied to drect of violence. Court rejected this, as much as capable of constituting assault as if guy hti child himself **[Kay v Allan- 1987 SCCR 534 -]** children trespassing, accsed set dog ion children, causing injury and landowner charged w assault by setting dog on kids. Same result as earlier case. Can use animal too - **[Atkinson v HM Adv 1987 SCCR 534 -]** reboory of shop counter at \[etrol station, jumped over counter, held knife to employer working there and stoke money. Jury found one of two guilty, inr elationt o second one - deleted the holding of the knife. Only one person hoilding knife, other person took moeny so dont beleuev in assault. How can I be of assault if they donthtink I physcially attacked person, appeal court dismissed, assault emans not jus tphysically atackignppl or acting threatening way. **[Gilmour v McGlennan 1993 SCCR 837]** Accused poitned gun at people behind counter, felt fear and alarm, turned out gun was a toy and in defence, this was a practical joke gone wrong, used atksinon case- made threatening gesture. **[Mens rea: evil intent]** Assault must be itnentional, no lesser form of mens rea - recklessness, negligent, etc, so on. Whether evil really adds sumn to defintion? Modern position - evil doesn't add , acronysm, itnentionally doing umn amounting ot unlawufl attack is enoughf or mens rea of assault. **[Smart v HM Advc 1975 SLT 65 -]** agreed to fist fight to settle dispute, both ended w assault convicton, tried ot argue that bc this wss mtuauly condensually mens rea element missing. Only doing usmn each side agreed to. On appeal, court didnt agree w argument, punishing other person is clearly an attack doesnt mater if there was consent. No indpendent meaning to word evil - cant assault personr ecklessesly or negilgiently. **[Lord Adv Reference (No 2 of 1992) 1993 SLT 460 -]** only did this as practical joke, confused itnention and motive. Well mauve been tyring to do joke doesn change fact you were trying to cause fear and alarm, meant you had the evil itnent for assault. **[JH v Scottish Children;s Reporter Adminsitration 2023 SLT (SAC) 97]** Civik case not criminal, sheriff aopea court on civi side, defintion of crime of assaukt. Sheriff ppeal court gave even more specific defintio, went with general oricn9ipe - of do sumn intentionally amounting to unalwfu act - guilty. Intendign to cause fear or alarm. Persuasive atuhoruty bc civil case but not binding. **[Consent to assault]** Defence? Smart case - c9onsent is not a valid defence. Smart - fight between 2, court said nah. First weeks lectures, thigns cant be simple. Law doesnt allow consent in unregulated fight but does fo regulating boxing match, surgery, tattooing, etc. Smart - fudgy solution, if intend only to do sumn that amounts to s lawfula activity - surgery, etc. These are lawful. Solution is a fudge, consen tmakes a differnece. Surgery ithout consent is unlawful. **[R v Brown \[1994\] 1 AC 212]** Brown - sadomasochist. How would a future court respond to this? No diret authority telling us how scots law owudl do this. If intending to do this for sexual pleasure, not assault, contrasts w E law. **[Laksey v UK (1997) 24 EHRR 39]** ECHR approach taken in Brown didnt violate defendants right ot private life, approach in Brown compatible. **[Corporal punishment]** Physcaly punish,ent of children (smackign) satisfies definition Parents and guardians who employed Smart - movie of punishing child would nto be a defence. If hitting intentionally, amounts to attack w evil itnent. Those using this - used to be defended w reasonable chasistement if for discipline but abolished in s1 in Children (Equal Proteciton from assault) (Sctland) Act 2019, s1 - now illegal. **[16/10/24]** #### Week 5, Lecture 10: **[Culpable and reckless conduct]** Umbrella term for offences of recklessly injury adn endangering others How many fall under this? Why? S, idnctment and complaints documents against accused take narrative form , state varuis facts abt case crown s offering i prove. So don't need ot say what they're actually charged w / the offence. You killed this person, name particular sttutory provision offence is thingy to. Kelly - idncitment: accused knoqign or beleivign with HIV, knowing t could be transitted, between 9th jan and blah said didnt have it, woman had hiv and endagrered health and life nut does tname charge. The nomen juris issue: no requirement ot name an offence in indictment / complaint Result is unceratiny abt precisely what offences exist in this area and their definition Charges idneitifable by key words: you did culpablu and recklessly do x. 2 gen types: Reckless endangermemet (endanerign the lieges) Reckless injury Some established particular cases Dicharge of firearms Administration / supplu of harmful substances Mens rea of recklessness, in common low sense, ie indifference / disregard (Cameron v Maguire 1999 JC 63) Mens rea required here is recklessness - unintentionally but culpably causing danger fir ithers. 1. 'The lieges' = the public or a section of the public Though, case law ofer recent yers suggests endganemgenet doesn tneed ot be particularly widespread, if harms one person or someone who ould have been there, thats enough. - - - No actual person needs to be in danger, purely hypothetical. How muchd anger must the conduct create? 'Sharps' cases - 90s and early 2000s, prosecute people failed ot disclose sharp objects. Searched by police when arrested, asked if have sharp objects. 2. Histroically, charges of reckless conduct had to allege endangerment of the lieges Now accepted that recklessly causing injury is itself a crime: Recklessly causing ijury itself is a criminal offence - **[HM Adv v Harris 1993 JC 150]** - nightclu bouncer assaulted customer ot her injury, thrown out, hit by car, assault eneds mens rea of itneniton so prosecution added reckless conduct. Accused appeale don basis he injured customer, no danger to bigger public so said this tiself is a crimianl offence. Other examples: **[W v HM Adv 1982 SLT 420]** - someone thrown bottle out of window of flat, hit someone below, wasnt deliberate, dropped without looking so deemed to be reckless. Didnt look for wider danger of public, enough that injured person hit. **[HM Adv v Kelly 2001]**, unreported - HIV case, common to see serious cases of covid rule breaches.Sanctions too light? Add culpable rand reckless. 3. - 200 yards away, invisible to them, workmen digging trench on other sit, hit w pellets of shotgun csartridges, tried to say they didnt know this risk s didnt have mesn rea, invisible behind lines of tree. Scots law - agains thesis, enough cr eated risk to workmen, shouldve taken greater care/ **Campbell v HM Adc 1997 SCCR 269** Cameron v Maguire 1999 JC 63 - testing new rifle just purchased, set up target, firing, public roas begind. **4) Culpable and reckless administration / supply of harmful substances** **[22/10/24]** #### Week 6, Lecture 11: #### Sexual Offences Re;ativelt recently, scots law was rpimarily due ot common law. - - - - - - - **[Rape (s1)]** Overruled Charles Sweeney cause, physical force does not need to be one. Before 2001 case, law required physical force of rprae to be used. Now centred around notion of consent. Up to 1989, husband could nto rape wife. - - ***[Actus reus]*** (all without consent): RANGE **[*Mens rea*:]** intention or recklessness as to the action **AND** lack of reasonable belief in consent Both sexual assault by penetration (s2) and sexual assault (s3) cover penile penetration of anus and vagina, s 3 also does of the mouth so same with rape. Enduring prosecution is possible unsure if penis was used or other implements or if unsure if there was penetration at all. Overlap between these provisions and with section 1 (rape) Why the overlap? Each offnce needs lack f consent on part of complainer, all are crimes of intnetion, cannot be commited recklessly, lack of reasonable belief of consent. **Coercing or compelling sexual activity (ss4-7)** Common components of these offences *Actus reus*: the complainer does not consent to the activity *Mens rea*: Doesn't matter if complainer was alarmed or threat of alarmed, irrelevant in defence defintion - its a conduct crime, law doesnt required all this must be proved. **Coercing or compelling sexual activit (ss 4-7)** Offence of causing a person to \[articpate in non c sexual actvity, may not incude accused person themsleevs can be complainer and third party, can be complainer themselves or sexual thign btw complainer and acuused. Can include wide range of conduct, this would be crime tht can include female rape - woman is sexually penenetrTED BY man who is not consetnting ot that activity or anyone by someoenwho is not conswnting. Communicating indecently (s 7): i) sending sexual written/verbal communication to the complainer or ii) causing the complainer to see or hear such communication. Image not in relation to breasts or images relating ot complainer. Accused has image of complainer adn tells complainer might do sumn w it, not this crime. This is of the accused person. If of complainer or either disclsoes or threatens to disclose, might be a crime -revenge porn or image based sexual abuse, porn might infer consent given. S2 of leg - criinalises this bhv, actus reus - non consent disclosing or threatning to disclose photo or film showing complainer in intimate situation. Mens rea - cause fear, alarm or distress. Abusive Behaviour and Sexual Harm (Scotland) Act 2016) 2016 s 3 act - ibtimatre situation if not ordinarily odne in public (other than kissing), breasts, buttocks exposed or covered only w udnerwear, doing sumn sexual S5 - coercing person to be present during sexual acitivty or causign complaine to be present wihislt others are in sexual activity, compeleld to be present and forced to be witness. This offence like others unlike s 4 requires sexual grat or thretanign or alarming, gratification must relate to presence of complainer and not to the act itself - no requirement that complainer watches sexual act but in position to observe it. S7 complainer inactive or passive, sends sexual writtenor verbal communciation 0 message or cause complainer to see or hear such communciation. Complainer may not even understand nature of sexual communciation. About conduct of accused. As soon as sent or communciation happens w releavtn mens rea - happens, even if intercepted by someone else. Lack fo consent here might be tricky eg id soemone sends message ot another that could be understood ot be sexual and dont message before tosay if its ok, might it be nonconsesual? Need context, if previous relationship maybe will shape assessment, lack of reasonable belief of consent? **[Sexual exposure (s 8)]** **[Voyeurism (ss9 & 10)]** **[Not part of original sexual offences bill]**, when reveiewed S law commission didnt include this but Scottish gov amended bill based of english sexual offences act 2003. There was a case involving boyeurism which involved sexual partner - **[(KT v PF Falkirk 2019 SCCR 11)]** Accused person charged w observing and recording partner sleepign in underwear adn taking photos of breasts, purpose of sexual gratification. Lack of consent when asleep? Court said the recording dimension of what he had done meaning he should be convicted of crime, simply observing sicne they wer ein a relationship, shared bed, was not enough to prove it was fo rsexual gratification or lack of reasonable belief of consent. Court wants to emphasise observing ones partner is unlikely to have offence, it was the reocding. [ Actus reus (all without consent): no. of ways to be committed] - - - - - Person in place expecting privacy, clothed or unclothed, genitals exposed, lavatory etc. If person was sshowering publicly, expectation not to be speid upon bu someone. It is also an offence to install equipment, or construct or adapt a structure, with the intention of enabling the accused or some other person (C) to do any of the previously mentioned acts **[23/10/24]** #### Week 6, Lecture 12: What constitutes private act? S 10 - if someone is in place which in circumstances believignwoud bprovide tem privacy or clothed or unclothes, gentias, buttocks, sexual act, toilet. Privacy doesn tnecessarily mean not being seen by others - reasonable expectation onto to be spied on eg changing room or shower. **[Consent]** Cosnrnt did make way into scots law proper to 2009 act but not defined really, Marr v HM Adv - cisnetn is a straightforward defintionog ocnsent. S law comm - were repsonible for thinking, wanted law of sexual offences ot respec sexualatuonomy so cvonsent is bets way. Some other jurisdictions base off force rather than cosnent, etc, highlights aggressiveness of act. Complainer is normally main focus, problem bc accused is typically in criminal trials? Consent leavesmore room for defence or jurors to bring problematic bias in decision - making. **[Circumstances of non-consent (s13 (2))]** Must have either the genital, buttock or breast exposed. Voyeurism - ss 9 and 10 Further mens rea requirements Lack of reasonable belief in consent Purpose of either sexual gratification or humiliating, distressing ro alarming complainer Also an offence to install equipment, construct or adopt a structure. with intention of enabling the accused\... Consent Made way into Scots law prior of 2009 act - consent wasn\'t really defined. Consent means consent. The definition of consent is a common, straightforward definition of consent - straight from Eng. word, no interp. Scots law commission Positive one \'co-operative\' model of consent Genera; definitions (s12) : free agreement (HM Adv v SM 2019 JC 176) Non-exhaustive list of circumstances were the complainer is deemed not to consent (s13) Consent whilst asleep / unconscious (s14) Giving/withdrawing consent (s15) Consent is key part of the acts. Sexual activity is an interaction between people. The provisions of acts within consent are section 12 to 15 - 12 - general definition f consent (free agreement), general definition in Eng. sexual offences act (s74) - someone consents if they agree by choice. Agreement is not free if its reluctant agreement in the face of pressure brought about by accused person - HM Adv v SM 2019 JC 176 - trial judge said there was no case to answer, accused assaulted, seriously injuring complainer, abducted her to a remote location. She had sex with accused and even that she initiated it but this was bc she had not wanted to engage in sexual activity and wanted to diffuse situation TRIAL JUDGE - because said consent and when got into car, judge\'s view beloved there was consent. Appeal court repealed said abuse can go from reluctant acquiescence right up to desire. Agreement is not free if only brought by severe acts of accused person. Eng. legislation set up that there\'s two circumstances where there is presumed to not be consent, then there\'s other defenced that there\'s a presumption of no consent? **nglish Legislation**: Similar to other jurisdictions, it indicates that a reasonable expectation of privacy doesn't require complete enclosure or shelter. - - ### **Mens Rea Requirements** - - ### **Voyeurism** - - - - ### **Key Concepts in the 2009 Act** - - - - - ### **Scottish Law Commission** - ### **Development of Sexual Offences Legislation** - - ### **Alternative Legal Structures** - - - - - ### **Issues with Consent-Based Approach** - - ### **Advantages of Consent** - - ### **Victor Tadros' Perspective** - - ### **Scottish Law Commission's Decision** - - ### **Definition of Free Agreement in Scottish Law** - - - ### **Case Law on Free Agreement** - - - - - ### **General Definition of Consent** - - - ### **Comparison with English Law** - - - - Section 13(s) Circumstances of non-consent Section 17 talks about capacity generally, mental disorders so in law, unable to consent. Q of capacity questions on whether person is able to understand what the conduct is, can they make a decision and communicate it. Intoxication - where sexual activity happens and person is incapable of consenting to activity, there is no - incapacity, not just intoxication. Intoxication doesn\'t mean there\'s no consent, must be intoxicated to the point they\'re incapable of giving consent - line where established is difficult to identify. Someone may be intoxicated but still capable of giving consent - R v Bree \[2008\] QB 131; HM Advocate b MMI \[2022\] HJAC 19 - court held (criticised of this) vomiting, memory loss and passing in and out of consciousness is not enough to say they were incapable of giving consent. Can contrast that case with a civil case - civil action for damages happening in 2018. GC v JD and VR? Said she was raped whilst drunk by two professional footballers, went to police, for decisions not made public, weren\'t prosecuted. Eng. case - case did concern whether these men had carried out a rape as defined in 2009 act even though a civil case. Here, pursuer said she was so drunk and blacked out so had no memory of events that took place. Civil case - judge looked at witnessed, even psychologist - ppl who are very intoxicated and impairment of working memory, might be able to engage in physical mechanics of sexual activity but not with capacity of consent. Court said the conduct of pursuer (taxi driver said she was out of it, didn\'t respond to him) - in view of judge, made clear she was incapable of consenting to the sexual activity that happened. Went to the pub after having a lot of Guinness I think. Medical evidence said sex is what happened, bartender saw complainer arriving, accused had brought her a straight vodka and half a pint of beer, she was pale with a blank expression, had to be guided by accused. Taxi driver picking up complainer and accused, accused was holding complainer were, taxi refused to take her to hotel, called police. Police said she was extremely intoxicated, unstable on feet and mumbling. Toxicology report - enough alcohol that could even cause a coma or death. Appeal court - she was incapable of consenting to activity. What if gave prior consent? Against Scottish Law Commissions opinion - it would be possible for people to agree while sober whilst still have capacity to have sex at some point in future then engage in it whilst drunk, prior consent being operative. However, way law was passed and constructed, law says there\'s no free agreement at time where complainer is incapable of giving consent even if prior consent sober. Voluntary intoxication isn\'t a defence in law, accused person voluntarily drunk. Section 134 - violence or threat of violence, no free agreement if complainer agrees to sexual activity because of violence used against complainer. Has to be causal consent between violence and threat and agreement to engage in sexual activity. If physical violence were used during a sexual activity it would be clear there was no free agreement. Signific because may be examples where\'s abuse carried out by accused before sexual activity has occurred so q on whether agreement was given because of the abuse. Third person could have been the one to be affected by violence e.g. child of complainer, doesn\'t need to be the complainer. Doesn\'t need to be physical, e.g., I will fire you is not included under this section. If section 13 isn\'t satsifi9ed, section 12 still exists - fact of threat to fire somebody isn\'t under section 13, section 12 - talks about free agreement. Section 13 is a lot of case law, not Scottish. Courts considered whether deception has to be what one would call active deception. Or passive, failing to disclose something. - Section 74. Whether deception has to be active\... Thought it was a medical act, misunderstanding the casual behaviour of the accused person - Baileys (a doctor engaging in unnecessary act, claiming it was Music teacher telling pupil it was necessary to help her breathing - Williams. Devonald - 16yo boy in relationship w defendants 16yo daughter, broke up with them, father had fake account pretending to be like 20yo woman, ex-gf\'s father told to masturbate. Didn\'t know this, claimant said wouldn\'t have.Court held this was done ot humiliate complainant, c didn\'t know so theres deception as to the purpose of the activity. Legs make It clear has to be deception by accused for this provision to apply. If someone else deceives complainer and are mistaken, or if come to a mistaken belief through no actions of anyone else, just have - unethused/uninduced mistake. English cases. R v B - whether failing to disclose one\'s HIV status would be considered relevant to question of whether complainant has consented. Court said it is not relevant to consent, later case, in the Assange case - r v b said only a failure of disclose won\'t but this opens possibility that active deception abt HIV status might qualify under this section but hasn\'t been prosected yet. Assange case - whether having sex without condom might constitute rape, stealthing (thought there was a condom) - separate provision of criminal law for this? Seen as deception, accused person lies about their intention and condom - they suggest they are in fact engaging in sexual activity. First case of stealthing in S was last year but decision hasn\'t been problem, could be section 12, 13 or deception about the nature of the act, or even section 15. S15 says consent to one act is not consent to another. Possibility of pregnancy - deception to ejaculate in complainant\'s vagina. Negating consent, consent is given but some sort of deception happens so it is not real consent, lying bout intention withdrawal before ejaculation might be relevant to question of consent. Lawrence case - pregnant did not undermine complainer\'s consent to sex - applied doctrine applied in a case called Monica - only deception in relation to act itself (sexual consent) is\...? Deception only qualifies if its about sexual intercourse itself and not circumstances about it. Lie of fertility so not.. blah. Complainer agrees because accused was impersonating someone complainer knows personally, induced by the impersonation - criticism: what if somebody knows the complainer has a mistaken belief.. accused entered complainers hotel room uninvited, believed it was her bf but he didn\'t actively impersonate the bf. What if got into online person with other person. Monica - this involved a police officer undercover, posing as environmental activist, entered sexual relationship w woman, she didn\'t know he was really an officer. Wasn\'t prosecuted because deception wasn\'t of someone known personally. **[29/10/24]** #### Week 7, Lecture 13: **Circumstances of non-consent (s13(2))** Deception as to gender - (other certain attributes) - non-disclosure of gender history. Earlier proesuction, Mcnalley - this deception s court percieves it would undermine aoprrent consent to sexual acitivtiy. Relevant sexual activity was digital penetrtion - defendant's fingers. Monica - court tried to rationalise what happened in Mcnalley by saying ondisclosure of gender of person changes sexual nature of act. 2023 Scottish case - Wilson, yong transman pleading guilty. Some ppl have brought up prviacy rights. Pro Objections - wrong to see transpeopel deceptive around gender, privacy rights, non-doscosure if abel to trigger criminal law, then q abt what it is we assume abt outer people. Disclose in some cases only? Gender history will be relevant when complainer learns of birth gender of trans partner they had contact with - S fiscal something. Prosecution in public interest? ECHR - art 8 (right to family life and privacy), nondislcosure of gender hisotry could be aart of this. CPS - crown pros service, suggested changes ot legal guidance on deception as to gender. Consultation on this but no action taken. Suggested text of change proposed notes possession of gender recogniton certificate may be relevan there, not all trans ppl have one. No. of issues. Factors include "active or delib deception" - active: said or doe sumn, delib - premediation to mislead. Whether complainant was deceived, false impression in mind and dod the trans person believed complainer not mistaken. Coercion or control, more likely delib deception occurred. There are more indications abt how proesucotrs are to decide of complainer deceived -- wethee willfully ignored aspects of subject's gender, did communication suggest complainer knew or not, explorignown sexuality? Active deception, unlike suspect beleived consent existed. Long passage of ttie enagged in sexual conduct, complainer could acquire knowledge across series of this. Whether makes sense ot limit range of deceptions that can affect consent, Johnathan - nany mosyake important to complainer should be important to effecting consent? Doc prepare dby crimnal law reform netowrok - 10 proposal on reforming this area of law. **[Consent cont'd]** S12 - general consen provision exists in backgeoun, van schift - fell asleep at party bc drunk and found accsed striping her an ddigitally penetratign vagina. Was convicted but on deletion of bit where complainer was asleep. - **[The meaning of 'sexual']** "Acting in sexual manner", "sexual communication, etc" Is sexual if- if a reasonable person would, in all the circumstances of the case, consider it to be sexual (s 60(2)) Objective test, particular preferences of accused person isn't important here, it's what the reasonable person would think of as sexual activity. Recent appeal court of - **[ Ferguson v HM Adv 2022 SCCR 26]**. Enough to direct jury that this is what the statute says, this is what they have to be told. Decision of ferguson posed some doubt on earlier case Scott v Dunn. Here accused charged w sexual assault w penetration by placing hand on complainer's buttocks causing dress to rise up. Said wasn't interested when approached earlier. First instance, Sheriff believed accused person had grabbed hold of complained without consent or reasonable belief of consent. Believed his touching would be sexual. On appeal, court took into consideration the seriousness of the consequences of convicting accused. He'd have a sex offence registration, court agreed yes it was an objective test but the sheriff did not pay attention to that the accused was very drunk when did this. Might've been fuelled drink than overtly sexual. Court in Ferguson thought that finding was remarkable and wrong bc there's no dichotomy between being overtly sexual and drink fuelled, not an either or. Self induced intoxication is not a defence. **[Offences against children]** 2 basic underpinning principe of 2009 act - sexual autonomy and the protective principle. Protection of individuals is what the law is trying to do. Two groups: **[Offences against young children (aged under 13)]** - - Those offences carry a more severe sentence. E.g, if adult has sex w child between 13&16 and child consented, that's an offence under section 28. If child didn't consent, more appropriate to consider that as rape under section 1 of act bc there was no consent. **[30/10/24]** #### Week 7, Lecture 14: If lack of consent then ss 1-9 offences more appropriate Two ses of offences that might apply, s1-9 more approp if sex w older child is non-consensual. Accused person must be 16 or older. Offences against older children (ss28-36) continued Provision of sexual offences Scotland act denies this belief Goes against article 8, the right to private life Question for SC, is this interference with article 8 justified? Link between his aim to protect children and provision was not clear enough. Does not include when older children engage in sexual activity with one another. Wide range sexual offences, unclear how being charged be one of them will show a sexual offence against older children. SC remitted the case back to High Court of Judiciary to see if any cases will apply retrospectively but no changes made yet despite made in 2017 - NB AB v HM adv 2017 UKSC 25. Other defence - between 2 years of age, defence will not apply if crime includes penetrative sexual activity. Applies to defence of section 30. Section 30 covers sexual activity with older child which is a range of things but not penetrative sex. Last area of law - the interaction with the pre-2009 Act law. Abolished no. of common law crimes including rape, clandestine injury to women, lewd, indecent or libidinous practice or behaviour. Incest is a crime - Incest (Criminal law) Consolidation) (S) Act 1995, if related to one another, great-grandparents and adoptive relationships too. - section1 of act, makes it a defence for accused to prove on balance of probability. If did not consent to sexual activity, they would have a defence. Engaging in sexual activity will not be a crime. Section 2 - step parent cannot have sex with step or ex step child or if before age of 18, lived in house of step parent and treated as child of that family or if under age of 21. Argument - should incest be criminalised. Yes - protect children from abuse. If activity is between adults, if consensual, there\'s QUESTION IF CRIMINALISNG IS JUSTIFIABLE. Stubing v Germany (2012) 55 EHRR 24 - court held there is a margin of appreciation, members states can decide themselves whether or not to criminalise this bhv, moral arguments ought to be recognised in law of each jurisdiction. Public indecency (Webster v Dominick 2025 JC 65) - abolished common law crime which was public indecency but did not abolish public indecency - making sexual gestures in public. Urination in public is not one. 2009 act did not abolish this? #### Property Offences Protecting property rights or interests. Generally speaking talking about property rights and interests. Offences of dishonesty - theft, housebreaking, robbery, extortion, fraud, reset and embezzlement. Offences Breaking property. Theft - appropriating property of another person without consent (actus reus), culpability aspect is intention o deprive owner of property. Appropriation - heft was about taking for quite a long time. Hume - felonious taking and carrying away the property of another, for lucre. What is casually turned theft by finding, not recognised as theft, not taking or carried of from somebody. Overtime, appropriation replaced definition as core element of actus reus effect. Cases indicated shift - John Smith 1838 2 Swin 38 - stole number of items that he found, theft by finding. In this case, court did away from taking away from owner. George Brown (1839) 2 Swin 394 Jeweller lawfully given watches to fix, did not return but kept for self. Court said it was appropriate ot charge this as theft. Most radical change is in Black v Carmichael 1002 SLT 897 - two accused persons frustrated of people parking cars on their property, attached wheel clamp, car will be released if owners pay 45 pounds- extortion and theft. Judge said theft charge was not but on appeal, High Court - essential feature of actus reus is appropriation and this happened as owners were denied possession and control over their cars. Scots law is similar to English law, E law means dishonest property of owning of a possession? Appropriation includes rights of an owner. What kinds of property can be stolen 0 items themselves have to be capable of being owned by somebody. Of corporeal moveable property - must be capable of being owned excludes living humans (offence of plagium though) Dead bodies can be stolen before buried - Deward v HM Adv 1945 JC 5 - manager of crematorium stole coffins and coffins lid, bodies taken out and coffins held onto to make various objects like tea trays etc - once body been buried, cannot be stolen. If one were to dig up dead body, doesn\'t mean they can, might commit a crime but not theft - violation of sepulchre? Violating a tomb. Must be corporeal - excludes non corporeal property eg information Shares or information HM Adv v Mackenzie\'s 1913 7 Adam 189- stole a book of chemical recipes/formulas from employer, made copies to dispose of them for profits. Charge of theft was relevant if it was the actual book but of information it contained was not relevant to do so/competent. Grant v Allan 1988 SLT 11 - kept copies of employee print out of customers, list without commission from employer and offered to sell these onto rivals - this is not theft in Scots Law. English LAW - legislation defining theft (theft act 1958) - section 4 says property that can be stolen can include intangible property but does not mean there will be a different outcome in these cases. In Oxford v Moss 1979 68 Cr App R 183 - court of appeal said confidential information is not intangible property in purpose of theft act - stole exam paper for civil engineering exam he had to sit, did not mean to steal physical paper but whether taking info in paper constituted theft. Uni had right over its publication? Confidential information is not theft under both jurisdictions. Excludes heritable property - lands or buildings but items taken from those can be stolen. Can steal lead from a roof or fruit from a tree. Other forms of incorporeal property - electronic transfer of cash. It must belong to somebody else. R v Turner (no 2) \[1971\] 2 All ER 411 - involved a registered car taken to garage and the accused drove off without paying/for repairs and he argued that since the car did not belong to garage then he could not have stolen it. Property is regarded as possession and control of car, and it was half that the defendant did steal it because it was deemed to be his? Cannot steal property not yet owned by nobody like wild animals. Old institutional writers - Stair and Erskine. Scott v Everitt - wild fish taken not theft but when captured, capable of being stolen). Valentine v Kennedy - animals in those circumstances can be stolen (where in an area called a skank?) If abandoned? Abandoned property belongs to crown but courts have not always taken view that pocking up stuff is theft, prosecution has to prove that they have appreciated that the abandoned item is something someone would want to retain - come back and get them. Mackenzie v Maclean - can still this, damaged beer cans that accused was told to dispose of, threw into skip but passer-by\'s paid for cans and started taking them. To charge someone with theft, prosecution does not need to prove who owned item but have to prove it was not owned by the accused. Kan v Friel 1997 - man and brother carrying sink, bag of copper piping, found items and wanted to sell at scrapyard, not their items to take. On appeal m prosecution did not prove anything about the circumstances of which pipes were found, appeal allowed and conviction overturned. Something must show items still have value and someone wanted them back. Actus reus of theft - appropriation WITHOUT CONSENT OF OWNER. Even when possession happens with consent (eg keep hold of it without owners consent even if handed to them). Ownership being transferred? Theft cannot happen if ownership has been transferred consensually 0 Macleod v Kerr and another 1965 SC 253 - who owned a car (civil law case) Galloway bought car from Kerr, paid with stolen cheque but by time discovered cheque was bad, car was sold onto third party - Gibson acting in good faith. Even though seller was induced to sell this car by false representations, they had voluntarily consented to give ownership tog Alloway so contract of sale was valid for Gibson as he got it in good faith - final owner of car. Galloway was not guilty of theft, possibly theft. **[5/11/24]** #### Week 8, Lecture 15: **[Mens rea: intention to deprive]** Historically required Mens rea is wider now, ita the case that intention to deprive (temporarily or indefinitely) will suffice - - - - No time limit, just rode off with it. Discussion whether a person needs to be acting with dishonesty - not really featured as an aspect of theft. Dishonest intention is essential to uphold conviction of theft - Kane v Friel, etc. There has to be something about the circumstances of condition of abandoned property to make accused person aware. *[Housebreaking and opening lockfast places]* - - - - - - - **[6/11/24]** #### Week 8, Lecture 16: **[Extortion]** - blackmail, might be committed by combining lawful command and legitimate threat. Thing demanded might be something accused person is not entitled to. Courts have said theres certain kinds of threats that might be legitimate like threatening to sue. Legit demand and legit threat - not extortionate. Court mentioned how tire clamp and demanding money is an illegitimate means - extortion/ Not restricted to demand of economic nature, does not need to be money. Complainer should drop