Lecture 1

 Trials take place in [in descending order of seriousness of cases]

o High Court of Justiciary[trial stage]
o Sheriff Courts [vast majority of criminal cases heard at first instance – sometimes by
sheriff alone, sometimes by sheriff sitting with jury
o Justice of the Peace Courts [staffed by justices of the peace, relatively non-serious cases]
 Appeals are heard by the High Court [usually bench of 3 judges hearing appeal; sometimes more
e.g. 5] and [since 2016] by the new Sheriff Appeal Court [high court judgments on full appeals];
 no appeal from Scottish system to uk supreme court – high court is normally final court of appeal
– no prospect of case going further
 human rights issues do have potential to be appealed all the way up to uk supreme court but this
mostly doesn’t happen -most appeals usually stay within Scotland
 criminal procedure – parties present to court, court makes decision based on evidence from
parties
o summary procedure
 judges sit without jury and can be either sheriff in context of sheriff court or justices
of the peace in justice of the peace courts (lay people, e.g. lay magistrates, not
judges} who sit with legally qualified clerk; sheriffs are professional judges
o solemn procedure (trial on indictment)
 judge sits with jury (made up of 15 people) which reaches verdict by simple majority
 can take place either in high court (where it will be judge) or sheriff court (where it
will be sheriff)
 judge decides on questions of law whereas jury decides on questions of fact;
criminal jury is sole arbiter of facts – must make decision on which facts have been
proved and which haven’t; judge merely adjudicates on matters of law, ensures fair
conduct of trial
 in England typically unanimity is required in first instance but judge may accept
qualified majority of 12 people
o it is prosecutor’s discretion to decide which procedure to use
o prosecutions are public responsibility: Crown Office and Procurator Fiscal Service take
responsibility for prosecuting criminal cases
 disposals
o verdict:
 guilty (conviction)
 not guilty or not proven (acquittal) – no legal difference between these 2 – both
lead to complete acquittal
 no instruction given to juries whether to use one or the other
o sentence
 almost always some form of punishment when found guilty, e.g. prison sentence,
fine, community service, etc.
 high court has no limits to sentencing powers; sheriff and JP courts have limited
sentencing powers as they hear less serious cases
 sources of criminal law
o legislation
 Both UK and Scottish Parliaments may make criminal laws for Scotland
 BUT UK Parliament rarely does so and many areas are as yet untouched by
Scottish legislation as it is relatively new
  Criminal law per se is not reserved to Westminster
 However, criminal legislation may touch on reserved matters, e.g. drugs, firearms,
terrorism (see Scotland Act 1998 sch. 5)
 Legislation of the Scottish Parliament on reserved matters is invalid unless its
purpose is to make criminal law 'apply consistently to reserved matters and
otherwise' (s. 29(4)).
o common law
 source of most core criminal law doctrine
 high court effectively responsible for development though it can no longer make
conduct criminal
 so we can’t look up a single authoritative piece of work that tells us what crimes
are – makes interpretation of the law quite difficult; must extract principles from
cases; must judge on a case by case basis; very difficult to predict how these
principles may be applied; quite erratic + uncertain development; HOWEVER –
advantage that criminal law is flexible + adaptable unlike rigidity of statutes-based
law
 problems: reckless endangerment + breach of the peace show how criminal law
can develop in unexpected ways
o institutional writers
 commentaries on common law from before official reporting
 considered authoritative
 Most important is Hume, Commentaries on the Law of Scotland Respecting Crimes
(1797), and to a lesser extent Mackenzie, The Laws of Scotland in Matters Criminal
(1678) and Alison, Principles of Criminal Law of Scotland (1832)
 Non-institutional writers such as Macdonald and Gordon have also been very
influential in development of common law
 these days, of limited importance – referred to only selectively, when it is
helpful/relevant to do so; also a lot of what they have said have been superseded
by common law
 structure of criminal liability: what needs to be proved in court for someone to get a guilty verdict
and be criminally pushed?
o needs to have committed criminal offence + lack any criminal defence for that charge

offence

prosecution must prove all elements of the offence

actus reus mens rea

‘wrongful act’ must be committed defender must have ‘guilty mind’

conduct elements culpability elements

‘objective’ elements ‘subjective’ elements

(no defence)

initial, evidential burden lies on the accused – they have to prove to the court that they are entitled
to some defence – then normally prosecution must disprove that they are entitled to a defence
and that no defence applies if the accused successfully raises a defence
e.g. assault is intentional (mens rea) attack (actus reus), vandalism is intentional/reckless damaging
of another person’s property

not all require mens rea, e.g. strict liability offences just require actus reus; but these are exceptional

Lecture 2

 legal limits of criminal law: virtually none (besides legislative competence)

 Human Rights Act incorporated ECHR into UK law so compatibility with ECHR has become issue
on which criminal law limits could be challenged – though they can’t be struck down/declared
legally invalid on this basis but declaration of incompatibility can be issued which will encourage
politicians to change the law
o art.6 – right to fair trial which protects various procedural rights in criminal context, e.g.
right to be presumed innocent, right to be tried promptly before fair and impartial tribunal,
rights in relation to conduct of ur defence (i.e. right to examine witnesses against u), right
to silence, etc. – criminal trials must be conducted in certain way
o but convention says very little about substantive criminal law
o qualified rights under art.8-11 have some relevance in criminal law context – protect right
to privacy/family life, freedom of
thought/conscience/religion/expression/assembly/association
o but all these rights have exceptions (which is why they are “qualified”), protected by
‘margin of appreciation’, where infringement is deemed necessary in democratic society
for some legitimate purpose (e.g. protection of health and morals, public safety);
successful challenges raising issue of incompatibility with ECHR are very rare in practice
o “margin of appreciation” – states are given reasonable margin for error; courts who review
compatibility with ECHR don’t apply those standards too exactively – they realise that
legislators/policy-makers ca have reasonable disagreement abt best ways of achieving
certain aims - so in practice lots of deference is shown to legislation concerning criminal
law that infringes these rights
o legality principle (art.7 ECHR) – forces restraint in how courts interpret the law – there
should be no punishment without law – member states are not allowed to punish people
for something that wasn’t an offence at the time that they did it
 has been interpreted beyond literal wording – also understood to encompass idea
that criminal laws should be clear enough that they are capable of being followed
– law should be tolerably clear – it should be possible to work out whether ur
behaviour would be subject to punishment or not
 successful challenges have been v rare – courts often say law was interpreted v
narrowly
o legal limits on criminal law are quite modest and don’t have much effect – raised question
on whether crim law has moral limits – even if there are lack of legal limits are there limits
that legislators should observe?
 should consent defeat liability for causing injury to others? if someone consents to assault,
should that defeat liability for causing harm?
o R v Brown – HoL said ‘no’ in context of sadomasochistic sex
 they were inflicting injuries on one another that crim law would view as assault –
however, there was mutual consent to those activities which they argued should
constitute defence – they used safety words, sterilised their instruments and
neither complained – police raided their home on drug charges and found videos
of them doing these sexual acts
  court looked at previous cases and in some cases consent did constitute defence,
e.g. boxing matches, surgery, tattoos and piercings, etc. so they were not unlawful
 however, this wasn’t always the case – law doesn’t allow, for example, unregulated
fights even tho they’re consented to, duelling, fights to the death
 majority of 3 to 2 held that consent did not defeat liability as activities were immoral
and dangerous; minority dissented and said that it was a matter of private morality
 activities were contrary to public interest -t hat was the criteria they used – u should
only be allowed to consent to harmful behaviour if allowing u to do that is within the
public interest and in this case these activities were contrary to public interest
 majority used very moralistic language – focused on it being immoral, degrading,
cruel – relied on moralistic considerations
 minority argued that u should generally be allowed to consent to harm to ur person
unless doing so would be contrary to public interest: when proposing that conduct
is not rightly charged, I do not invite you to endorse it as morally acceptable – these
are questions of private morality, not to be judged by standards of criminal law –
state should interfere no more than is necessary to ensure balance of interests of
individual and balance of interests of populace at large – unless there is tangible
reason why this is criminal, they should be able to do as they please w their bodies
o possession offences – (weapons, drugs, etc.) – preventive/preemptive offence –
criminalising people before they (try to) cause harm
 no further intent is required – only possession is necessary
 widely used in modern legislation
 misuse of drugs act 1971 ss.5, 28 – prohibits list of drugs – mere possession of
any of those is criminal – doesn’t matter if u intend to use it for urself/supply
 firearms act 1968 ss.1, 2, 5 – possession of any firearm without license is criminal
– also, it is absolutely prohibited to possess certain types of guns amongst civilians
even with a license (e.g. automatic weapons, most handguns)
 criminal law (consolidation) (Scotland) act 1995 ss.47, 49 – u cant possess
weapons in public but u can possess them in private dwelling (e.g. knives)
 terrorism act 2000, s.58 – possessing info that might be useful to terrorists is
criminal
o breach of the peace – should conduct be criminal if it is not harmful but merely
alarming/offensive/annoying/’indecorous’?
 smith v donnelly: protestor was protesting against trident nuclear weapons
programme – in order to do this she went to naval base where submarines were
stationed and lay down on road outside base, thereby causing big disturbance to
business of naval base – police arrested her and she was charged with breach of
the peace – she challenged this on basis that offense of breach of the peace was
so unclear that it breached art.7 ECHR – wasn’t clear to be able to interpret what
does/doesn’t fall within it – high court rejected that challenge, saying breach of the
peace was compatible with art.7 but in order to achieve that they read the previous
authorities in quite a narrow way and offered new, clearer definition of offense
based on previous authorities: held that breach of the peace requires 2 essential
elements – must be severe enough to cause alarm to ordinary people +
threaten disturbance to the community; merely annoying behaviour is not
enough to constitute breach of the peace if it doesn’t satisfy these elements
 how ‘public’ does conduct need to be?
  harris v hm adv: accused had made threatening communications to 2 police
officers, telling them he knew where they + their families lived + details of
their financial affairs and on basis of threatening calls he was charged with
breach of the peace; accused objected to this charge on basis that his
conduct didn’t satisfy public element of breach of peace required by smith v
Donnelly; he pointed out that those calls were threatening they were made
privately to these police officesr and there was no public dimension to what
he did so he should be acquitted; in this case high court agreed with
accused, saying that public element was missing therefore there was no
offence
 bowes v frame: taxi driver was hired to pick up complainant (14y/o girl) from
school and drive her home; during ride he was alleged to have behaved
inappropriately towards girl – he asked her inappropriate questions abt her
sex life which caused girl to become alarmed and upset; when she got home
and told her parents accused was arrested on charge of breach of the
peace; initially, accused plead guilty but following decision in harris he
sought to change that plea, saying that harris has made clear that public
element is required which was not present here as this was in private
context in cab w one other person; in this case high court disagreed with
accused, upholding his conviction and pointing out that incident had taken
place on public roads inside vehicle available for public hire which could
have had wider effects – could have caused wider disturbance once
complainer got home and reported incident; so they were satisfied here that
there was public element of conduct
 v contrasting cases tho facts are not entirely dissimilar – smith v Donnelly
tried to narrow scope but public/private line has shown to be difficult to draw,
especially in terms of setting the limits of criminal law
 hatcher v harrower:

Lecture 3

 what is actus reus?

 mere thoughts aren’t enough – but several types beyond this, e.g.
o result crimes (causing a prohibited result) – homicide
o conduct crimes (acting in a prohibited manner) – assault (attacking another person)
o crimes of omission (failing to act/failing to prevent harm)
o states of affairs – (what is criminal is simple fact that…) – possession
 criminal actions
o criminal liability normally requires action that we can attribute to someone
o implicit presumption that action is voluntary
o ways of claiming involuntariness
 automatism – claims that one wasn’t acting consciously/exercising conscious
control over one’s actions
 reflex action – it was an accident; it was unintended
 innocent agency – accused just happened to get caught up in sth beyond their
control
 uncontrolled external events – cases where person is forced to commit crime due
to external events beyond their control
 automatism
o accused didn’t exercise any form of conscious control over that behaviour tho he did do it
o e.g. sleepwalking
o Ross v HM Adv: there must be total alienation of reason amounting in complete
absence of self-control; high threshold
 reflex actions – they didn’t mean to do it; it was reflex; they didn’t intend to do it - courts normally
treat it as one of statutory interpretation – if they were reflex action, does that make them outside
wording of particular statute?
o Hill v Baxter [1958] 1 QB 277 – defendant drove through red light and hit another vehicle
– claimed that before he reached the light he had blackout – couldn’t provide any evidence
of this – court acquitted him on basis that he hadn’t intended to drive dangerously but
prosecution appealed against that verdict and on appeal court said that actually this
defendant fell within wording of statute; statute didn’t say ur driving has to be intentional,
it just said u have to be driving in dangerous manner; court felt in this case accused clearly
did satisfy this provision so he was still found liable – court did say there may be cases
where this is not true – person may be so out of control of what they are doing that it is
not right to be driving the vehicle at all
o does prior fault of the accused matter? if person performs this reflex action but in doing
that displayed some prior fault, getting themselves into that situation in the first place?
o Ryan v The Queen (1967) 121 CLR (Aus) 205 – defendant had tried to rob a shop with
loaded gun; another shop assistant surprised defendant, causing him to squeeze gun
involuntarily and kill person behind counter – defendant said he was surprised into doing
it therefore this wasn’t voluntarily action therefore shouldn’t be held liable – appellant court
held in this case that they had to consider whole course of his behaviour – they said final
action was reflex action but it was his voluntary act to point gun at shop assistant in the
first place to create danger that this could happen
 innocent agents – accused doesn’t perform any action at all; they just get caught up in some
chain of events completely beyond their control – e.g. there are 3 people standing in line, person
1 pushes p2, p2 falls over and injures p3; p2 is innocent agent – he hurt p3 but didn’t perform
any action at all – courts are generally sympathetic to innocent agent bc he hasn’t performed
any action at all so he can’t be liable for any result of events they got caught up in
o Hogg v MacPherson 1928 JC 15 – accused was driving horse-drawn van which got flown
over by gust of wind and van was blown into street lamp which broke; Edinburgh City
Council demanded damages from accused; when accused refused to pay those damages
he was convicted of criminal offence for failure to pay damages; he appealed against this
verdict and on appeal court took sympathetic approach, saying that breaking streetlamp
wasn’t an act of the accused at all – there was no conduct he had performed to which that
damage could be attributed; it was all a result of external causes – thus his conviction was
quashed
 ‘external events’ cases – involve states of affairs beyond accused’s control; as a result of these
events, accused commits states of affairs offences – what happens if u got into this state of
affairs as a result of events outside ur control? – English courts generally unsympathetic and
tend to say statute just prohibits state of affairs so if ur found in this state of affairs ur guilty
regardless of whether this was in/out ur control
o R v Larsonneur (1934) 24 Cr App R 74 – french woman had left uk on date that was
required by her conditions of entry – she travelled to Ireland but when she arrived in
Ireland they straight away deported her back to UK – when she arrived in uk she had gone
past date she was permitted to remain there – no longer permitted to be there so
 eventually arrested and convicted for being in country without permission – so u can see
point here that offence was just being there w/o permission which defendant was – she
appealed, making argument that this was completely beyond her control – she had done
everything in her power to leave country on required time – it was only bc she was
deported back against her will that she was here – on appeal, court wasn’t sympathetic
to that argument – took strict statutory-based approach, saying that statute prohibits being
in country; if u r in country w/o permission, u r guilty of offence
o different jurisdictions go on different way abt this
o Kilbride v Lake [1962] NZLR 590 – defendant had been given ticket for not displaying
registration doc correctly; so offence was just state of affairs – but doc had been displayed
correctly at one point but somehow had fallen off when defendant had gotten out of car;
defendant was able to prove this – all the law said was: docs in vehicle have to be correctly
displayed at all times; it iddn’t make any exceptions – unlike English courts, new Zealand
court said there was no actus reus bc this wasn’t voluntary – it was pure accident that
registration doc had not been displayed correctly; therefore there was no voluntary act,
no actus reus, no liability – so scots law could go either of these 2 ways in terms of
persuasive authority
 how far forward in time should person’s acts be deemed to extend? not only does it have to be
actus rea and mens rea for there to be liability, but 2o f these things also have to coincide – actus
reus and mens rea have to be connected, occur at the same time, satisfied in same moment, for
person to be liable – raises question: what happens if an accused’s action is initially accidental
but they later acquire mens rea? courts have developed concept of “continuing act”
o Fagan v MPC – defendant was driving his car and pulled over by police officer who wasn’t
satisfied with how close defendant had parked to curb so he pointed to precise spot and
said he wanted him to park there – defendant dutifully drove closer to curb and in doing
that he drove onto police officer’s foot; was accepted by all sides that this was initially an
accident + he didn’t mean to drive on his foot; police officer told him to get off his foot;
defendant knowingly didn’t move car; police officer experienced severe bruising and
swelling – on appeal, court said actually we are concerned with whole course of acts that
followed the driving on the foot until he decided to drive off – so on that basis, when
defendant decided he was’nt going to drive off ths foot he could be convicted because
there was coinciding of acus reus and mens rea
o Sexual Offences (SCotland) Act 2009 s.1(2) – what happens if sexual contact was initially
consensual but consent was then withdrawn? 2009 Act makes clear that actus rea of rape
is continuing act – if consent is withdrawn at any time, person can still liable for this offence
 liability through omissions
o failure to prevent harm/do act ur supposed to do – general principle: no commission by
omission – u can’t commit offence by omission – only general rule though: there are
exceptions, e.g. where accused has positive duty to act
o 4 categories of duties
 duties arising from relationship between parties – e.g. parents and children
 assumption of responsibility
 creation of dangerous situation
 contractual duties
o this set of rules is limited to cases of commission by omission, not other offences like
explicit statutory offences that criminalise commissions by omission
o duties arising from relationship between parties – e.g. parents and children
  Children and Young Persons (Scotland) Act 1937, s.12(1) – duty parents owe
children
 DUty is to take steps reasonable in circumstances – established in Bone v HM Adv:
accused was mother in abusive relationship; she had child from that relationship
and alleged to have neglected the child but in her defence it was argued the context
of her relationship had to be understood – there were limits to what was reasonable
to expect her to do due to abuse + psychological harm she suffered as a result of
it – court said we have to look at what’s reasonable in circumstances – when they
looked at circumstances (i.e. her abusive relationship) they took into account her
psychological vulnerability
 the only really clear case for positive duty is parents and children – it is unclear
when this extends to other relationships (e.g. spouses/partners, children to
parents, other blood relatives, members of same household) – these cases are
more likely to be dealt with in next category
o assumption of responsibility for someone else’s care
 R v Instan – defendant lived with 73y/o aunt with developed health problems – he
didn’t tell anyone abt his aunt’s problems; she didn’t seek medical assistance; he
didn’t even give food to aunt; eventually aunt died as a result of this neglect;
evidence suggested that her death was significantly accelerated due to neglect
she’d suffered; on that basis defendant was found guilty of manslaughter – court
held that bc aunt was in victim’s house he was supposed to be looking after her –
there was common law duty of care
 R v Stone and Dobinson – Stone and Dobinson were pratners who lived tgt w one
of their sons; all of them were of low intelligence; one of defendant’s sisters came
to live in house; she was cared for very badly; put in room with no ventilation, no
access to toilet/washing facilities; she became very reclusive and eventually
bedridden; at one point defendant Dobinson attempted to wash her and she also
had at one point tried to find doctor but this was unsuccessful; she never tried again
tog et help; not long afterwards sister died from infection she was suffering from;
so in this case both defendants were convicted of manslaughter as they had
responsibility to care for her and they did not so they were liable for their death; on
appeal conviction was affirmed; in DObinson’s case there was no blood relation at
all so this was purely on basis that she had attempted to find her a doctor and
therefore voluntarily taking on responsibility for her care and thus liable
o creation of dangerous situation
 even if u created dangerous situation by accident, u still have duty to remedy it
 McPhail v Clark: accused was farmer who set fire to some straw on edge of
stubbled field which in itself was perfectly normal farming practice; however, fire
spread to rest of field and smoke resulting from it spread over nearby road; during
this time farmer did nothing to address problem and carried on w rest of his work;
in meantime thick smoke seriously reduced visibility on road; there was collision
between 2 vehicles; as a result farmer was charged with culpable and reckless
endangerment; though fire was perfectly normal practice, farmer had endangered
people by failing to do anything about this and letting smoke engulf road; farmer
appealed against his conviction but on appeal court upheld conviction and applied
rule that bc farmer had created dangerous situation, even tho creation was no fault
of his he failed to remedy that situation and therefore could be liable for
endangering users of roads
  McPhail v Clark: accused was farmer who set fire to some straw on edge of
stubbled field which in itself was perfectly normal farming practice; however, fire
spread to rest of field and smoke resulting from it spread over nearby road; during
this time farmer did nothing to address problem and carried on w rest of his work;
in meantime thick smoke seriously reduced visibility on road; there was collision
between 2 vehicles; as a result farmer was charged with culpable and reckless
endangerment; though fire was perfectly normal practice, farmer had endangered
people by failing to do anything about this and letting smoke engulf road; farmer
appealed against his conviction but on appeal court upheld conviction and applied
rule that bc farmer had created dangerous situation, even tho creation was no fault
of his he failed to remedy that situation and therefore could be liable for
endangering users of roads
 general principle: if there is dangerous situation created, even accidentally, uhave
duty to remedy that situation and u can be liable for any harm that ensures from
failing to fulfil this duty
 recently courts have been more reluctant to find duties of this kind
 Mallin v Clark: accused was arrested and asked whether he had any sharp objects
on him; he said he didn’t know; police officer then searched him; syringe was found
and police officer injured himself on syringe; sheriff in case convicted accused of
culpably and recklessly injuring officer; he said what he had done was omission to
act though – he hadn’t physically caused injury; he failed to mention that he had
syringe on his person; so relying on general principle that there can be no
commission by omission he sought to challenge his conviction; in this case; high
court agreed w accused that this was case of omission and quashed his conviction;
prosecution hadn’t established existence of any positive duty to disclose existence
of syringe – general principle here not effective
 McCue v Currie: accused had broken into caravan for purposes of theft; it was
nighttime; he needed illumination; used cigarette lighter to provide light; lighter
exploded in his hands which caused him to accidentally drop it, starting fire;
accused ran away from scene and eventually fire burned down caravan; accused
was charged with fire raising; sheriff convicted him on that charge; accused sought
to appeal; court said accused’s conviction should be quashed and appeal allowed
bc accused had no mens rea – he was charged w fire raising but that was purely
accidental – there was no mens rea therefore no conviction
 court didn’t actually say, but there were 2 different charges in McPhail v
Clark and McCue v Currie
 in this case court came to conclusion that if he was charged w starting fire
then he would have to be acquitted bc he had no mens rea
 if charge had been causing damage by failing to put out fire the result in
mccue v currie may have been different; but as charge was fire raising he
had to be acquitted
 ^way of thinking abt case – court didn’t actually say this
o other legal duties (contractual)
 causing harm through failure to fulfil contractual obligation may be criminal
 uncertain bc cases on this point are v old – no modern Scottish cases
 old English case – R v Pittwood sometimes taken into consideration that failing to
fulfil contractual obligation can be criminal : one day person opened gate into level
crossing to let car go through; after he opened gate he went off to lunch break; bc
 he let gate open there was collision w oncoming train; train driver was killed in
collision; defendant was convicted of manslaughter of traindriver; court’s reasoning
was that he had duty to close gate as a result of his job; he failed to fulfil that
contractual obligation; as a result of that he failed to prevent collision; failed to
prevent that train driver being killed; therefore he could be liable by omission for
train driver’s death

Lecture 4
 causation
o result crimes mean causing a particular result, e.g. homicide
o normally treated as common sense matter, e.g. if I shoot someone in head and they die,
we don’t need lengthy legal analysis to show that I am cause of death
o not always case though – sometimes strange things happen that give rise to dispute abt
whether there is causal link to required result – especially true where liability often turns
on whether there is causal link or not
o 2 elements of causation
 factual causation
 as matter of fact, were accused’s actions a causal condition of prohibited
result?
o the ‘but for’/sine qua non test- would result have come about if
accused hadn’t done what they did?
 R v White: accused had poisoned his mother’s drink; shortly
after this, mother died; medical evidence in case showed that
she actually died from heart failure; she hadn’t actually taken
enough of cyanide for it to have been fatal; decided there was
no factual causation bc if he hadn’t poisoned her she still
would have died
 Hendry v HM Adv: accused had assaulted 67y/o man;
following attack, man had heart attack and died; there was
medical evidence that injuries suffered by victim were only
very minor; there was also other evidence that victim’s heart
condition was generally qiute bad so any significant stress
could have caused his death at some point; victim had also
been drinking heavily that day, had eaten heavy meal and just
before assault he had climbed large flight of stairs to his
house; pathologist was of opinion that all of this introduced
reasonable doubt that it was assault that caused victim’s
death; accused appealed in this case against conviction; in
contrast of why court upheld his conviction they agreed with
rule that should be applied but for the accused’s actions –
would accused have died? court’s view was that jury had been
properly directed on this question; even after they heard
medical evidence they must have been of opinion that death
wouldn’t have come abt when it did but for assault of
perpetrator; even tho there were contributing factors they were
satisfied that accused was but for cause of victim’s death
 legal causation – judgment of legal responsibility
 why: any event that occurs will have many but for causes – there will be
many causal conditions that contribute to event; law focuses on one cause
it will attribute responsibility to offence;
 no one test is used to establish legal causation so there are overarching
ideas of proximity of damage and remoteness of damage; idea: the closer
an event is to the actions of the accused, the easier it is to find causal link;
the further away we get (the more time goes by/the greater number ofe
vents that intervene), the less likely causal link will be established
 in criminal context, accused does not have to be ONLY significant cause;
shown in Hendri case
 the thin skull rule: pre-existing characteristics of victim don’t negate
causation (‘take ur victim as u find them’)
o Bird v HM Adv: Bird had pursued victim down road in belief that she
had taken money that belonged to him; victim tried to escape from
this and get to passing car in order to escape; before she was able
to do that, accused grabbed her by shoulder to stop her from getting
in car; at point when accused grabbed her, victim collapsed and died
from shock; accused was convicted of killing victim despite how
unforeseeable consequences of this were
o extends to non-physical characteristics
 R v Blaue: defendant had stabbed victim which caused her to
be hospitalised; victim was told that she needed blood
transfusion in order to save her life but she refused blood
transfusion on grounds that she was Jehovah’s Witness; as a
result of refusing blood transfusion she didn’t get treatment
she needed and she died from wounds the following day;
defendant was convicted of killing and found liable for her
death; but he appealed against this on basis that refusal of
treatment which he alleged was v unreasonable was actually
main cause of her death; on appeal court applied thin skull
rule, saying that defendant had to take victim as he found her
which included not just her physical characteristics but her
religious beliefs as well
 novus actus interveniens – intervening causes – intervening acts and events
that ‘break the chain of causation’ - if these events occur, they sever causal
link between what accused has done and harmful result
o intervening acts of victim
 acts of self-preservation (which actually cause harm to person
themselves) break causal chain when they aren’t
reasonable/foreseeable
 R v Roberts: defendant and victim (young woman) went
to party together; defendant had promised victim lift
home; when they were in car, defendant threatened to
sexually assault victim and said that he would
physically assault her if she didn’t give him what he
wanted; in order to get away from this, victim jumped
out of moving car and seriously injured herself; on that
basis defendant was convicted of offence of assault;
 defendant sought to appeal against that conviction; his
argument was that intervening act of victim (victim’s
voluntarily decision to jump out of car) should be held
to break chain of causation; responsibility should be
judged to be w victim rather than him; court held that
that argument was wrong – conviction should be
affirmed and his appeal should be dismissed, applying
rule that said we have to ask whether self-preservation
was reasonable and foreseeable consequence of
defendant’s acts; they went slightly further, saying as
long as victim’s actions weren’t completely dumb they
wouldn’t break chain of causation; so test in Roberts is
often referred to as daftness test – was victim’s act so
daft so as to be unreasonable/unforeseeable?
 R v Williams and Davis: defendants had picked up
hitchhiker; evidence was quite sketchy; it seemed to
have been that defendants asked hitchhiker for money
for lift they gave him; when he was reluctant to do that,
defendants tried to take money from victim’s wallet;
victim chose to jump out of moving car and sustained
serious head injuries and died as a result of those
injuries; appealed against conviction, claiming that act
of self-preservation broke chain of causation; in this
case they said his response was so unreasonable +
unforeseeable that chain of causation should be held
to be broken; in this case; court agreed w that argument
– action of jumping out of car was completely out of all
proportion to what happened;
 McDonald v HM Adv
 victim has no duty to seek treatment – failure to seek medical
treatment no matter how unreasonable will never break
causation
 R v Blaue
 R v Dear – defendant attacked victim w knife after
finding out that victim had sexually assaulted
defendant’s young daughter; victim died due to stab
wounds a couple of days later; shortly after attack,
victim had been found by someone else but insisted
ambulance shouldn’t be called; medical evidence
showed that victim had deliberately tried to open his
wounds and stop them from bleeding; suicide note was
found w his body corroborating that was what
happened; defendant was convicted w murder of
victim; on appeal he argued that unreasonable refusal
to seek treatment broke chain of causation; on appeal
court rejected that argument, again applying principle
that victim had no duty to seek treatment
o intervening acts of third parties
 o negligent medical treatment
o intervening natural events
Lecture 5
 they make voluntary decision to take drugs and die/suffer injury as a result – can initial person
who supplied drugs be held responsible? or does deliberate decision of taking drugs constitute
novus actus (intervening act)
 intervening acts of victim
o Khaliq v HM Adv: accused were shopkeepers who supplied glue-sniffing kits to local
children; they were charged with offence of reckless causing injury to children; they
challenged charge on numerous grounds, one of which was voluntary decision of children
to take substances broke chain of causation; thus they couldn’t be held responsible for
what children suffered; on appeal this argument wasn’t successful; high court held that
there was causal link between actions of accused and injury that children suffered bc
accused knew purposes for which substances were being supplied; thus there was no
break of causation chain; might have been bc victims were children
o Ulhaq v HM Adv: similar facts but w adults not children; high court said even in case of
fully competent + informed adults, voluntary decision to ingest these substances doesn’t
break chain of causation
o Lord Advocate’s Reference (No 1 of 1994): supplier of drugs could potentially be found
liable for homicide offence if someone who bought drugs for them took them and died;
accused was among group of friends who had gone to party together and supplied
amphetamines to group; deceased was one of this group who took dose at her own
choosing and as a result died; accused was charged with culpable homicide; at trial
accused was acquitted by trial judge who threw out case bc voluntary decision of victim
to ingest drugs was clear break in chain of causation; therefore it wasn’t possible in law
for accused to be guilty of this offence; if person is acquitted on trial/indictment they can’t
be appealed; so instead there’s Lord Advocate’s Reference where LA refers point of law
that they would have appealed law on to High Court which makes determination on that
point of law; so no possibility of acquittal being overturned but point of law can still be
determined; on appeal, High Court cited earlier case of Ulhaq and said actually this
voluntary decision wasn’t break in causation; trial judge had made error
o R v Kennedy: in contrast to Scottish cases, in England HoL believed that voluntary
decision ALWAYS breaks chain of causation
o MacAngus v HM Adv: asked court to clarify law again due to R v Kennedy; court affirmed
that scots law remained different from English law on this point; person who supplies
drugs can still be liable for that person’s death
 deliberate acts of self-harm – what happens if accused contributes to victim doing deliberate act
of self-harm (e.g. suicide/other physical self-harm)? is there break in causation? or can accused
be held responsible for harm victim does to themselves?
o R v Dhaliwal: English court of appeal didn’t rule out possibility that he could be liable for
homicide offence by causing another person to commit suicide; didn’t say he definitely
could be but judge said it couldn’t be ruled out
o there have been successful English prosecutions for causing another person’s suicide;
leading case is R v Wallace where ENglish court of appeal said it depends on
circumstances but it’s at least possible for person to be liable for homicide by causing
another person’s suicide; deliberate decision to commit suicide doesn’t necessarily break
chain of causation
 intervening acts of third parties
 o general common law rule: intervening acts of third parties will always break chain of
causation provided that they are voluntary (i.e. free, deliberate and informed)
o but ‘voluntary’ should not be interpreted too literally
 R v Pagett: defendant had taken his gf hostage at gunpoint; ended in confrontation
between accused and police which took place in dark stairwell of block of flats he
lived in; accused was on upper floors and armed police on lower floors; at one point
police heard shot firing; they returned fire and shot towards defendant; after
incident died down and it became clear what had happened, defendant had used
his gf as human shield so when police had fired back at him they killed gf;
defendant was put on trial for manslaughter of his gf; allegation was that he caused
his gf’s death; but he wasn’t direct cause of death – he had created situation and
police had come along, returned fire to him and were direct cause of death; so
defendant appealed against his conviction, trying to argue that bc actions of police
were voluntary (free, deliberate and informed) they broke chain of causation and
therefore he didn’t cause his gf’s death in law; so he couldn’t be liable for homicide
offence he was charged with; on appeal court rejected that argument and upheld
his conviction for manslaughter and gave reasons for that – they said on proper
reading of what it means for action to be free, deliberate and informed actions of
police weren’t actually truly voluntary – bc they were acting on their legal duty and
acting in legitimate self-defence
 medical treatment cases – accused causes harm, harm is treated negligently by medica
professionals, victim sufferes more severe injury/dies, is original accused responsible or does
negligent medical treatment break chain of causation?
o negligent medical treamtne tcan break chain of causation but only in very rare situations
– only if accused’s act has ceased to be any kind of operate/substantial cause of
harm/death that actually eventually happens
o R v Jordan: members of AMerican air force stationed in UK; they had fight w man during
which they stabbed him in stomach; victim died a few days later; medical evidence was
that stab wound had very nearly healed but immediate cause was harmful medical
treatment that victim was given, e.g. he was given excessive fluids/drug he was allergic
to; assessment was that any competent doctor would have realised that this treatment
was harmful; at initial trial, defendants were convicted of murder; on appeal court found
that that decision had been wrong; bc stab wound had nearly healed, court couldn’t
possibly have concluded that it was cause of death; it was really negligent medical
treatment that had caused – it should have been held that there was break of chain of
causation – so convictions were quashed
o R v Smith: defendant and victim were both soldiers stationed on base; there was fight
during which defendant stabbed victim; victim was then stretchered to medical station at
base; there were number of errors; on the way 2 medical station he was dropped twice;
was given incorrect treatment which had at the very least diminished his chances of
survival; defendant was convicted of causing death of victim; but on appeal he tried to rely
on R v Jordan decision – that in this case there was seriously negligent medical treatment
which caused break of chain of causation; court disagreed with that, distinguishing facts
in Jordan to facts in this case; in particular crucial consideration in JOrdan was that wound
had basically healed and ceased to be substantial and still operate cause of death which
was entirely due to medical treatment; Smith said that yes treatment contributed but
original wound that was inflicted was still operative cause that contributed to death of
victim – difference between 2 cases; courts normally tend to stick with Jordan – only in
 exceptional cases where wound was almost healed that they will hold that there is break
of chain of causation
 intervening natural events can break chain of causation
o must be so powerful and unforeseeable that accused’s acts cease to be substantial cause
o u punch someone, they fall on the ground and pass out, are struck by lightning and die –
freak natural event
 criminal liability requires both actus reus (wrongful act) and mens rea (culpable mental state)
which comes from actus non facit reum nisi mens sit rea – there can be no guilty act without
guilty mind
o reasoning: in criminal law, kind of sanctions we use involve condemnation and censure
and subjection to punishment; person shouldn’t be punished unless they were at fault for
it in some way
o there are sometimes strict liability offences that require no mens rea but generally
speaking they’re exceptional and almost all offences do require some form of mens rea
o dole: similar to mens rea but older version
o mens rea and actus rea MUST coincide – must occur at same time and be connected
o transferred mens rea/intent
 A has gun, takes aim and shoots at B with intention to kill; A misses and kills C
instead; in that case there is actus reus (death of C) and mens rea (accused
intended to kill B) but these 2 things relate to different people; does A’s mens rea
in relation to B transfer to C? does A’s intention to kill B relate to C’s death?
 general doctrine of transferred mens rea – yes generally speaking
 case law in Scotland on this point is not entirely clear
 Roberts v Hamilton: in favour of transferred mens rea; accused’s partner
and her son were having fight; accused picked up 4ft pole which she
intended to use to hit her partner but she missed partner and hit son (victim)
instead; question arose on appeal on whether rmens rea in relation to
partner transferred to injury to son; on appeal it was found that transferred
intent did apply; it was no form of defence to this assault charge that she did
not actually intend on hitting her son
 doctrine of transferred intent applies where A’s intention to assault B results
in assault of C
 Byrne v HM Adv: goes other way; accused was convicted of wilful fire
raising; accused had set fire to object on floor of room; fire spread to bed
and mattress and floor and walls of room; given that he only intended to set
fire to first few items, could he also be found guilty of wilful fire raising in
relation to other items?
o in this case court held that actually doctrine of transferred intent didn’t
apply; if prosecutor wanted to charge with wilful fire raising he would
have to prove intention of damage for every item named in
indictment; so accused could only be guilty of wilful fire raising in
relation to items he intentionally set alight; for others it would have to
be charge of reckless fire raising at best
 so in straight forward scenario transferred intent will apply there; but outside of
those straightforward cases the law is less certain (as seen in Byrne)
o intention: sufficient mens rea for most offences; not always necessary – some crimes can
be committed recklessly or w other mens rea states; but if it is crime to cause particular
result, it would be sufficient mens rea that u intended to cause that result; intention has
 no technical definition; courts’ approach is that it has its ordinary language meaning, i.e.
u intend something if u do it on purpose/mean to do it;
 important to distinguish intention from premeditation – intending something is not
the same as planning on doing something in advance
 u r in a fight and person insults u and u throw punch at them – throwing punch is
intentional (u meant to do it) even tho it isn’t premeditated in any way
 important to distinguish intention from motive (ultimate end/reason for doing what
u did) – law is generally not interested in why u did what u do/what ur ultimate
motives were, just whether u intended on committing criminal act or not; doesn’t
matter whether ur motives were good or bad
 maxim: motive is irrelevant to criminal liability; although intention is often important
in determining whether accused has mens rea, motive is not relevant to liability
and not something courts have to think about
 Palazzo v Copeland: involves gang of unsavoury and drunken youths committing
breach of peace near house of accused; this included shouting abuse in his
direction; as a result accused became very irritated and chose to deal w situation
himself by getting shotgun, firing shotgun from his window which caused gang to
disperse but also caused them to experience fear and alarm; as a result accused
was convicted of breach of peace; he tried to argue that his motive was to prevent
breach of peace and thus he shouldn’t be liable for that crime himself when that
was his only motive; on appeal court applied this classic principle that it’s intention
and not motive that’s relevant to liability; essence is breach of peace is conduct
likely to cause fear/alarm; accused had done that and it was what he intended to
cause even though his motive was a good one – to prevent breach of peace +
further crime; so that good motive was irrelevant to liability; it was his intention that
mattered; so he did have required mens rea; intention is thus distinct from
premeditation and motive
o recklessness
Lecture 6
 direct/indirect intention
 indirect/oblique intention: refers to effects of action not literally intended but nevertheless it was
certain/virtually certain that they would come about as a result of ur actions
o e.g. person puts bomb on plane to detonate when in mid-air to destroy plane and claim
insurance money; foreseeable side-effect is that passengers will be killed; so literally
speaking, person who sets off bomb doesn’t intend to kill passengers; but nevertheless it
would seem pretty bad if that constituted any defence to any criminal charge
o u must be able to foresee effect + it is certain effect will come about
o R v Nedrick
o R v Woollin
o combined effect of these 2 cases was to recognise indirect/oblique intention – foresight
and virtual certainty
o unlike Scotland which usually uses common sense definition, English law and other
jurisdictions go beyond this and create definition of indirect/oblique intention
o but concept is now receiving some recognition – Petto v HM Adv – in case of murder
 most important mens rea concept after intention – recklessness
o recklessness is more about taking risk of something – reckless accused is one who take
sunjustifiable risk which will cause consequence to come out
o 2 types of definition
  subjective: depends on what accused believes that they’re doing or what they know
that they’re doing – u would be subjectively reckless if u knew/believed that u were
taking an unjustifiable risk – used in most other ENglish-speaking jurisdictions
 objective: not based on accused’s own knowledge/belief – used in Scots law
o recklessness usually used in statutory offences
 Allan v Patterson: case about old offence of reckless driving; accused was
motorcyclist driving down road where there was school crossing patrol in
attendance; he drove past attendant at high speed while there was child waiting to
cross road; in relation to this he was charged with reckless driving; sheriff acquitted
accused bc although his driving was bad that wasn’t enough to satisfy definition of
offence; there also needed to be mens rea of recklessness which sheriff thought
onf acts of this case was not proved; prosecution appealed against that verdict and
High Court had to decide what definition of recklessness was to apply here:
 “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.’”
 some have argued that this definition is less demanding than ‘recklessness’
– it’s more carelessness/negligence; higher standard should be demanded
 approved in context of other statutory offences
o Black v Allan: definition was cited approvingly in relation to offence
of vandalism
o McIntosh v HM Adv: offence of maliciously causing explosion; mens
rea acquired according to modern understanding is intention and
recklessness again; High Court said right definition to use here was
Allan v Patterson definition
o Milne v Harrower: offence of threatening/abusing behaviour; High
Court cited Allan v Patterson definition with approval
o all of these cases, especially M v H, is that they all cited Allan v
Patterson case; but none of them actually discuss that definition;
definition of recklessness actually used was common law definition;
 occasionally approved in relation to common law offences
o Gizzi v Tudhope: culpable and reckless conduct; common law crime
of culpably and recklessly discharging fire alarm; accused had held
pigeon shoot in building; workmen were working on sewer behind line
of trees; shotgun pellets accused fired hit workmen; so accused were
convicted of culpable and reckless conduct; they tried to argue that
they hadn’t been able to see workmen and didn’t know they were
there therefore they lacked required mens rea for this offence; on
appeal High Court applied Allan v Patterson test; High Court
concluded that they didn’t; so conviction could be upheld; but this
authority is best regarded as outdated
 more common case law: High Court has been consistent in believing that
different definition should be used for common law crimes
o Cameron v Maguire: 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.
 recklessness = disregard of/indifference to consequences –
from Quinn v Cunningham
 more demanding
 higher threshold for mens rea
 focus is on attitude – did accused’s actions display
indifference/disregard?
o example cases
 Quinn v Cunningham 1956 JC 22
 accused was riding bike at high speed and went round
flying corner and hit some pedestrians crossing road
there; he was convicted of offence of culpable and
reckless conduct; he appealed, claiming that he didn’t
have required mens rea; on appeal court agreed that
that hadn’t been proven;
 Carr v HM Adv 1994 JC 203
 accused had broken into church hall which was v dark;
for illumination he set fire to piece of paper that he used
as torch; he dropped this paper, started fire which
spread; accused left building; eventually building burnt
down; he was charged with reckless fire raising; on
appeal he raised issue on definition of recklessness –
he wanted to argue that his conduct hadn’t been
reckless if court relied on proper definition; HIgh COurt
upheld his conviction, saying that trial court had applied
right standard (from QUinn v Cunningham)
 McDowall v HM Adv 1998 JC 194
 accused was driving over speed limit; he went to
overtake car in front of him by pulling out into opposite
way on road; car was coming in opposite direction
which caused him to pull back into his own lane very
suddenly; but his reacton wasn’t quick enough to avoid
hitting car in front of him which caused collision and
several people died; accused here was convicted of
culpable homicide; he appealed against that conviction;
again as in past couple of cases one of his grounds of
appeal was definition of recklssness but in this case
outcome was same as Carr – HIgh Court said correct
test (Quinn v CUnningham) test had been applied; they
were satisfied that accused’s actions did fall under
definition of recklessness; therefore conviction could be
upheld
 *Cameron v Maguire 1999 JC 63
 reckless discharge of firearms; accused had been
testing new high calibre rifle he’d bought; he was firing
it on his property at target he placed in front of bank of
berth, behind which was woodland with footpath
 running through it; tho area where accused lived was v
remote + rural, some people did sometimes use this
park; there was also main road in front of accused’s
house and it was possible that any bullet fired could
have ricocheted and gone back into main road; so in
relation to all this, accused was convicted of culpabl
and recklessly discharing firearm; accused’s appeal
against conviction was refused; High COurt felt that in
applying that test requirement for recklessness had
been proven
 *Transco plc v HM Adv 2004 JC 29
 culpable homicide; accused was company responsible
for distribution of gas in residential area; there was gas
explosion at house in that area which claimed several
lives; following this incident, company was charged
with culpable homicide; basis for allegation was that
company’s actions had been reckless – apparently
there was awareness that explosion could happen,
failure to devise systems that could manage that risk
which showed indifference/disregard; several issues
raised including definition of recklessness – court had
used + applied correct definition + language
o precise definition of recklssness used depends on which offence
 FOR STATUTORY OFFENCE – ALLAN V PATTERSON
 FOR COMMON LAW OFFENCE – QUINN V CUNNINGHAM
DEFINITION – MORE DEMANDING
 other mens rea terms
o wicked recklessness – specific to murder – different from ordinary recklessness
o negligence/gross negligence – sometimes used as mens rea for culpable homicide
o knowledge that certain circumstance exists /belief of certain circumstance – rape, sexual
assault – lack of reasonable belief that victim was consenting – did u reasonably believe
that victim was consenting?
o wilful blindness – general rule that whenever criminal offence requires mens rea of
knowledge, one thing that can substitute knowledge of certain circumstance is wilful
blindness to certain circumstance – if u deliberately close ur mind to fact that certain
circumstance existed
 Latta v Herron: accused was solicitor who had substantial criminal law practice; he
was also collector of firearms; following some dealings which he had with one of
his clients he was convicted of offence of reset [possession of stolen property];
client had offered him sale of 2 old and collectible firearms for very cheap price; in
order to make deal, accused had met this client in alleyway and claimed that he
didn’t know received firearms were stolen
 important bc essential element is knowledge that property was stolen; sheriff
at trial accepted that he hadn’t known firearms were stolen; in circumstances
tho he found that accused must have been wilfully blind; this was suspicious
set of circumstances, client who was known criminal selling firearms at
cheap price, meeting at dark alley somewhere; accused must have
deliberately closed his mind to risk that goods were stolen; on that basis
 conviction was affirmed; so even tho offence requires knowledge, wilful
blindness can substitute knowledge
o dishonesty – debate rn about whether dishonesty in dealings can be mens rea for theft
 strict liability offences
o statutory offences that don’t require mens rea
o strict liability: possibility of criminal liability without proof of mens rea
o these offences are v controversial bc they allow person to be convicted + punished for
things they did by accident/reasonable mistake – it is no defence to say that they didn’t
do something intentionally
o rather than being true crimes, they’re regulatory offences
 regulatory offence: aimed specifically at regulating specific area of commercial
activity, e.g. health and safety at work, environmental regulation, financial
regulation, etc.
 typically non-stigmatic; don’t carry same stigma as would conviction for true crimes
 the most they lead to are financial penalties [fines]
 in case of strict liability offences, for regulatory offences theyr’e less controversial
bc punishment is less severe
o but some very serious crimes are strict liability, e.g. FIrearms Act 1968 s5 – it is no
defence to say u didn’t know that firearm was prohibited; v serious offence – carries
mandatory minimum sentence of 5 years imprisonment
o courts’ approach to strict liability – generally matter of statutory interpretation – courts look
at purpose of legislation – courts employ presumption that mens rea that can be rebutted
 so if evidence is clear that parliament meant to create strict liability offence, that’s
how courts will interpret the law
o more recently it has been asked if strict liability contravenes ECHR
 might be able to argue that criminal liability without fault is breach of human rights
 Salabiaku v France: some have interpreted as suggesting there are limits
on strict liability – however UK courts have been v clear that they disagree
w this view; UK courts have consistently held that European COnvention
has no implications for strict liability crimes
 shown in R v G: offence in ENglish law of rape of child under 13; actus reus
of this offence simply consisted in having sexual intercourse with child under
13; no mens rea; strict liability offence; victim was 12 years old, accused
was 15 years old, but victim had told defendant that she was 15; it was
accepted by court that he had reasonable believed that to be true;
nevertheless he was convicted of this offence bc all statute says is if u have
sexual intercourse w person under 13 years of age u r guilty of this offence;
court said that there was no breach of his human rights
Lecture 7
 "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), p 89.)
o actus reus: causing death of another person whether u intended to kill them or u were
wickedly reckless; essentially same actus reus for all homicide offences
 Drury v HM Adv: case about provocation; confusion arose from sth said in case by Lord General
Rodger abt definition of murder
o said macdonald definition doesn’t describe relevant intention
o in actuality recklessness and intention must be wicked
 o so more accurate definition is: murder is constituted by any wilful act causing destruction
of life by which perpetrator either wickedly intends to kill/displays wicked recklessness as
to whether victim lives/dies
o so intention to kill strictly speaking is not enough for mens rea of murder – Lord Rodger
is appearing to suggest that there must be WICKED intention – but he didn’t expand on
what that meant
 Lieser v HM Adv
o said that court in drury mentioned this idea of intention but substantively this hasn’t
actually changed the law – all they’re doing is stressing that even when person has mens
rea of intention that still doesn’t necessarily mean they’re liable for murder; there might be
defences such as self-defence/provocation that mean they didn’t act with wicked motive
that would be required for murder conviction
 wicked recklessness: distinct concept from ordinary recklessness
 HM Adv v Purcell:
o accused was charged with reckless driving; one time he drove past red light at 60mph;
when he went over crossing through red light he hit and killed child crossing road; on this
basis accused was charged with murdering child but during trial accused sought
declaration from judge that murder verdict wouldn’t be open to jury bc simple fact that he
was driving recklessly, he said, should not be sufficient mens rea for murder – sth more
than that was required for mens rea of murder conviction; prosecution argued against
that, saying if u showed indifference and disregard to life of child this was enough; on
appeal court sided w argument of accused and put forward definition of above wicked
recklssness –
 Petto v HM Adv: accused had murdered his flatmate and sought to dispose of body by setting
fire to ground floor tenement flat they shared; he did this, fire spread, it caused extensive damage
to rest of tenement building and resident of one of flats upstairs then died from smoke inhalation;
initially when accused was charged he pleaded guilty to murder of neighbour of upstairs flat;
following decision in PUrcell, however, he sought to change his plea; Petto said he didn’t intend
to harm person in upstairs flat; he may have been reckless but didn’t intend any injury therefore
he didn’t have required mens rea intention for murder and sought to change his plea; high court
found there were no legal grounds for allowing him to withdraw his plea bc they said accused
must have known when he started fire it would virtually certainly cause death/serious injury of
other people in building given other flats were inhabited, fire would definitely spread, etc.; so
although it was true that accused didn’t desire to hurt anybody he knew it was virtually certain
that such consequence would happen and bc of that it could be said that he intended that result;
so for purposes of wicked recklessness definition of intention includes so-called indirect/oblique
intention
 before Purcell: no requirement of intention for wicked recklessness; used to be flexible concept
covering unintentional killings or killings where intent couldn’t be proven that nevertheless
displayed sufficient fault for murder conviction
o Cawthorne v HM Adv 1968 JC 32: accused and his wife had been having argument; wife
had barricaded herself into room in their home; 3 other people were visiting house at time;
accused had shotgun; he went up to door of room, fired at random knowing there were
people inside; fortunately no one was actually killed; case of attempted murder rather than
actual murder; question still arose on whether accused had actual mens rea – did
indiscriminately firing into room knowing people were inside constitute wicked
recklessness? court said it did
 o Halliday v HM Adv 1999 SLT 485: 2 brothers had gotten into fight w their victim; fight had
ended w 2 brothers beating victim to death outside their house; after incident they were
seen shaking hands w one another, congratulating each other, went inside house, washed
their clothes, failed to call ambulance/do anything to help their victim; they only called
ambulance when they returned to scene a while later and realised victim had actually
died; accused of murder on basis of these facts; appealed on basis that no sufficient
evidence of required mens rea for murder conviction; court disagreed w that, found that
all facts [behaviour after incident, not caring at all abt what happened] could be taken to
constitute wicked disregard for consequences
o Arthur v HM Adv 2002 SCCR 796: accused and his wife frequently got very drunk, during
which they had violent fights; during one such fight wife was killed which led to accused
being charged of murder; medical evidence suggested that wife had died from being
strangled; accused’s version of events was that his wife had attacked him and in his own
defence he’d pinned her down on ground; she had then been able to breathe due to his
weight on top of her which led to her death; accused tried to argue that in these
circumstnaces he should be held not to have required intention for murder – his actions
weren’t sufficiently reckless to justify intention for murder – court rejected that argument
– even tho he didn’t intend to kill his wife what he’d done displayed such high degree of
recklessness + disregard to her life + health that nevertheless he could be convicted of
murder; these cases so come before Purcell; some element of intention to cause injury
does now need to be proved – can stil assist us w what court would be likely to say abt
wicked disregard for consequences
 culpable homicide:
o tradition of severe mandatory penalties for murder
o when it comes to choice between murder and culpable homicide, it doesn’t depend on
technical rules but moral judgment on whether A deserves hanging
o if yes – murder
o if no – culpable homicide
o voluntary culpable homicide: accused has required mens rea for murder – either they
intended to kill or were wickedly reckless – but there’s partial defence available to them
that reduces conviction from murder to culpable homicide
 partial defence bc full defence completely negates criminal liability and results in
acquittal whereas partial defence means they can avoid severe mandatory penalty
 unique to murder – although may act as mitigating factors in other cases
 2 partial defences available
 diminished responsibility:
o Criminal Procedure (Scotland) Act 1995 s. 51B (inserted by the
Criminal Justice and Licensing (Scotland) Act 2010 s. 168): "(1) 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."
o so there must be abnormality of mind and that abnormality must
substantially impair person’s ability to determine/control their conduct
o abnormality of mind
 includes recognised mental disorders: s51B(2)
  must be recognised by relevant profession but need not
amount to mental illness
 e.g. Gordon v HM Adv: accused had killed his wife but
had done so at her request; helped her to take
overdose of painkillers bc she wanted to commit
suicide; she suffered from chronic lung disease, had
contracted terminal lung cancer but she had serious
phobia of hospitals, didn’t want to go to/die in hospitals;
was in constant pain which led to her request; accused
was originally charged with murder bc he had required
mens rea for murder; but accused has psychiatrist who
gave evidence that at time of accused’s conduct he
was suffering from episode of depression – accused
himself didn’t have long-term depression but
psychiatrist said he had probably been suffering from
depression at the time; on that basis court was
prepared to accept plea of culpable homicide on
grounds of diminished responsibility; in fact when there
was appeal against sentencing this case high court
decided that appropriate sentence would’ve been
admonition – formal conviction – accused would be
admonished but no formal sentence
 under old common law, one thing that was excluded
from diminished responsibility was psychopathy; no
longer any similar exclusion in new statute though – so
to extent that psychopathy is recognised mental
disorder those things would be counted as
abnormalities of mind and could be found as foundation
for diminished responsibility
 intoxication neither constitutes abnormality nor
prevents its establishment: s51B(3)
 must have specific effect – substantially impair person’s
capacity to determine/control their conduct
 only talking abt specific capacities – volitional
incapacity – ur capacity to determine/control ur
behaviour
 whether impairment was substantial enough is strictly
for jury to decide – normally mental health professional
will be there to say to court whether or not person had
this disorder and what effects of this disorder are but
professional should not say whether accused should
actually be entitled to defence
o Connelly v HM Adv
o Galbraith
 provocation
o premised on idea that sometimes killings result from situations where
person’s self-control is diminished due to some kind of
 triggering/provoking act against accused that causes them to lose
their self-control
o Drury v HM Adv: held that provocation applies where killing resulted
from accused being provoked and losing their self-control;
provocation has to take 2 forms
 assault; or
 mere words are not enough
o Cosgrove v HM Adv – accused was found guilty
of murder after having beaten his victim to
death; accused had gone to victim’s house after
hearing that victim had sexually assaulted young
girl; victim allegedly confessed to crime and
recounted what had happened while
smirking/smiling; accused claimed among other
things that hearing about sexual assault had
caused him to lose his self-control and kill victim;
tried to use this as defence of provocation;
conviction of murder was upheld – provocation
requires assault
o SIngleton v HM Adv – 2 co-accused had gotten
into fight w victim at takeaway; evidence
suggested that victim had started fight by issuing
threat to 2 co-accuseds; it was agreed that 2 co-
accused had continued to beat victim long after
he posed any kind of threat; victim died;
accuseds were convicted of murder and tried to
raise partial defence of provocation; but as in
Cosgrove appellant court concluded that no
reasonable jury could possibly have found
provocation in these circumstances
 accused’s reaction must be proportionate [or not
grossly disproportionate]
o Thomas v HM Adv: 2 business partners had
fallen out when it emerged that victim had been
de-frauding accused and threatening unjustified
legal action against accused to get accused to
sign over his share of business; meeting
between 2 was arranged to resolve their
differences; accused took knife w him to meeting
in case he needed it to defend himself; as
accused was going to leave, victim restrained
him from leaving which caused accused to pull
out knife and stab victim to death; he again tried
to claim provocation defence on conviction of
murder which wasn’t allowed bc proportionality
test wasn’t satisfied
o Robertson v HM Adv: accused was convicted of
murder after having stabbed victim to death; his
 evidence was that victim had made unwanted
sexual advances towards him and having put his
hand on accused’s inner thigh without his
consent; as in previous case there was
conviction of murder and accused appealed on
grounds that he should have been entitled to
defence of provocation; on appeal court again
decided that there had to be some
proportionality between reaction and initial
provoking action; they used wording that
accused’s reaction must “not be grossly
disproportionate”; court was satisfied that
correct test had been applied and upheld
conviction
o Gillon v HM Adv: accused had killed victim after
having hit him repeatedly with spade; his
defence included provocation on grounds that
victim had started fight; here question arose on
what proper test was on provocation by assault;
again court said it was one of proportionality; as
in previous 2 cases court was satisfied that trial
court that applied that test had done so correctly
 sexual infidelity
 extends to admissions of infidelity
o HM Adv v Hill: accused was military policeman
stationed in England during war; he suspected
his wife back home was having affair; he
obtained leave to return home from his post;
when he arrived he found his wife in their house
with another man; two of them admitted they had
been having affair; accused shot and killed both
of them; jury was directed that as long as they
were satisfied he might be entitled to
provocation defence even tho accused himself
hadn’t witnessed any sexual infidelity; he just
hadi t confirmed to him for first time when he
returned home
o Rutherford v HM Adv: accused and victim were
separated but still married; still in touch and on
relatively good terms; victim informed accused
she had had brief affair with another man but
was trying to break off that affair; accused was
upset and iddn’t react violently; few days later
victim changed her story and said she had been
sleeping w him under accused’s nose and
enjoyed every minute of it; accused killed her;
on appeal high court agreed that jury should at
least have had opportunity to consider issue;
 o McCormack v HM Adv: accused had killed his
wife and been convicted of murder; at time of
trial he said he had no memory of what had
happened; later appealed on basis that he had
recovered his memory of incident and his
version of events should have entitled him to
provocation defence; his new story was that at
some point during their fight his wife had
suggested that he was not father of their child;
accused then tried to stop her from saying
anything further and eventually he’d strangled
her which led to her death; accused here tried to
say there had been clear admission of infidelity
so he should be entitled to provocation defence;
court disagreed, saying that wife’s suggestion
was at best innuendo – wasn’t clear admission
of infidelity; therefore this wasn’t subject to
provocation test; so admission must be clear
 applies to any relationship where fidelity is expected on
both sides
o McKay v HM Adv: in context of relationship
where 2 people had been living tgt for no.
months even tho not married, high court
confirmed that provocation defence of infidelity
could arise if there were
o HM Adv v McKean: homosexual couple; court
confirmed that even tho defence might have
been limited to married heterosexual couple it
was now extended to cover all relationships
where fidelity was expected on both sides
including homosexual relationships
o one recognised exception to rule where
provocation requires assault; we also don’t use
same test here that’s used in context of
provocation by assault which was confirmed in
 Drury – bc test in context of assault is
proportionality – to ask whether killing is
proportionate to assault – but it’s
meaningless to ask whether killing is
proportionate to infidelity bc how can u do
that – so different test was needed –
which was ordinary person test – whether
ordinary person would have been liable to
react in same way
 but what characteristics does ‘ordinary
person’ have?
 in scots law purely objective way –
ordinary person has statistically ordinary
 characteristics – we don’t attribute to
ordinary person any particular character
traits/relevant personality flaws accused
might have; purely objective test; so even
tho there’s no direct authority on this
question in scots law [no cases directly
on this point] we can assume that
ordinary person test would be held to be
objective one
 in other jurisdictions this question has
plagued courts, e.g. in England – lots of
litigation abt it – argues that if u insist on
purely objective test that might be unfair
to particular defendant in case, e.g. if they
have diminished responsibility to control
their behaviour when provoked – like if
they have personality disorder they have
less control – seems unfair to judge that
person by purely objective standards – so
response to that is to make standard
more subjective
 R v Smith (Morgan) – HoL said ordinary
person just has any relevant
characteristic defendant has
 but if test is completely subjective then
that means defendant isn’t really being
tested by any meaningful standard at all
 A-G for Jersey v Holley – accused was
addicted to solvent abuse; court had to
ask what reasonable glue-sniffer would
have done which robs test of any
objective meaning at all
 statutory reform tried to solve this
problem – Coroners and Justice Act 2009
s54
 only available for immediate heat-of-the-moment
reactions
o Parr v HM Adv: accused killed mother; turbulent
relationship; frequently had drunken arguments
that escalated into violent fights; victim regularly
threw objects at accused e.g. glasses; on one
occasion she hit him; against this background
this fight was unexceptional; victim had thrown
object at accused; on this occasion accused
described it as last straw; he attacked her and
she died; court was keen to stress that all that
mattered was immediate context – court didn’t
assess whole background of physical violent
 relationship; only immediate reaction, last fight,
last throwing of object against which court had
to assess defence; as in Thomson court found
in that context that reaction was completely
disproportionate; therefore accused wasn’t
entitled to defence so conviction of murder was
still upheld
o Thomson: case of 2 business partners;
provocation was relatively non-serious physical
restraint; defence had to be assessed by
reference to that one incident; so court had to
exclude whole context of what had come before;
so even tho provocation might have seemed
quite serious in context of damaged relationship;
court said reaction was completely
disproportionate – in provocation we’re only
concerned with immediate context; didn’t matter
that reaction was more understandable in
context of relationship
o idea is that ur less culpable when doing
something in heat of the moment – shouldn’t be
treated as same cold-blooded murder –
rationale for this rule – but creates problems e.g.
in case of victims of long-term domestic abuse,
slow-burn reactions
o victims of domestic abuse have killed their
abuser in situations where immediate threat
posed by abuser is quite small e.g. when he’s
asleep/off their guard/abuser has offered
relatively minor provocation; but that incident
may take place against background of long
period of v serious physical and psychological
abuse; evidence is clear eough that in these
kinds of cases reaaction might be moer of slow-
burn reaction – accumulative effect of abuse
builds up over time which causes victim to lose
their self-control; but provocation defence is
unable to handle this bc of immediacy
requirement which rules out these cases of
slow-burn provocation; so victims who kill their
abusers in these situations are still convicted of
murder; this has led to allegations that
provocation defence privileges cases where
people’s direct response is aggression [e.g.
male perpetrators in context of violent fights
responding to incident of violent provocation] but
female victims [e.g. in situatiosn of domestic
abuse] are not entitled to defence – so it’s been
 alleged that bc of way defence works it
privileges explosions of anger men tend to
experience over those women experience
 reforms to provocation defence in England: loss of control
Coroners Justice Act 2009 ss.54-55 – they tried to address
many of problems previously mentioned
 English law used to have common law defence of
provocation much along same lines of Scottish defence
 following report from law commission Coroners Justice
Act 2009 was enacted; ss.54-55 created new statutory
defence of loss of control which has several
requirements
o there must be ‘qualifying trigger’
 fear of serious violence
 anything said/done that gives person
justifiable sense of being seriously
wronged
 sexual infidelity is excluded as ‘qualifying
trigger’ – even tho sexual infidelity could
give u justifiable sense of being seriously
wronged that in itself is not enough – was
felt to be v outdated
o loss of control doesn’t need to be sudden –
immediacy requirement has been done away
with – reason was bc defence should be more
accessible to victims of domestic abuse
o new legislation attempts to compromise
between subjective and objective tests
 ordinary person is person of normal
tolerance and self-restraint – but
otherwise in circumstances defendant
found themselves in
 test is objective with respect to tolerance
and self-restraint – ordinary person is
assumed to have normal levels of
tolerance and self-restraint -b ut it is
subjective in any other respect,e g..
defendant’s age

Lecture 8
 involuntary culpable homicide: accused doesn’t have required mens rea for murder; have lesser
form of mens rea; are held liable for causing death on basis of that lesser form of mens rea
 2 varieties
o ‘unlawful act’ homicide: death is caused in course of another criminal act, e.g. assault
 well-established rule of common law that any assault that ends in death amounts
to culpable homicide; this is constructive liability offence – no mens rea is required
as to death in this case; only mens rea required is mens rea of underlying defence;
we construct liability for death out of mens rea as to lesser crime
 required mens rea for assault is intentionally attacking another person
 bearing in mind ‘thin skull’ rule, this offence is thus v broad in scope
 Bird v HM Adv: man pursued woman who tried to get into car to get away
from him; he put his hand on her shoulder which caused her to die from
shock; shows constructive nature – in this case there was assault committed
albeit v minor; he did that intentionally; as a result she died; applying thin
skull rule, her sensitivity didn’t negate causation; there’s assault + causation
of death = unlawful act homicide; no form of defence that her dying from
shock was v unforeseeable
 often known as “one punch” homicide cases – person assaults another
person [punches them], person falls over, hits their head, lands in
particularly awful way, dies; even thow hat’s been perpetrated is only v
minor assault if that’s what causes death that causes culpable homicide
 Burns v HM Adv: victim was v drunk; got into fight; accused swung punch
at victim which victim attempted to move away from; accused hit victim near
his ear where base of skull meets neck; v vulnerable spot to have been hit
even tho blow was of v little force; it struck victim in just wrong place; it
damaged cerebral artery which caused haemorrhage as a result of which
victim died; in this case there wasn’t even appeal against conviction; it’s v
clear that accused had committed culpable homicide; it was appeal against
sentence – where accused was given non-custodial sentence of community
service; similar to Gordon case, offender’s culpability was minor enough that
he was considered eligible for non-custodial sentence even tho this was
homicide offence; shows how broad this offence is
 what else besides assault counts as ‘unlawful act’ for purposes of this
offence?
 fire-raising – if guilty of fire-raising that causes person’s death, clearly this
counts as culpable homicide
o Mathieson v HM Adv: accused had set fire to some paint cans in
building inhabiting elderly residents who were killed due to smoke
inhalation + other injuries etc.; judge said accused would be liable for
culpable homicide if jury was satisfied that this offence of fire-raising
had caused death; conviction was held on appeal
o Sutherland v HM Adv: accused and victim were both accomplices in
burning down accused’s house to claim insurance money; there was
explosion; victim was trapped in building and died in fire; accused
was convicted of culpable homicide; High Court upheld that
conviction on appeal
 theft?
o Lourie v HM Adv: accused was entering victim’s house [elderly
woman]; did so fraudulently – by telling lies; attempted to steal things
from her including her handbag; victim had weak heart; following
incident she had heart attack and later died in hospital; initially they
were accused of culpable homicide bc she got heart attack from
witnessing theft; on appeal they argued that theft should not be seen
as sufficient for conviction of culpable homicide; conviction in this
case was quashed bc High Court felt there wasn’t enough evidence
of causation – not enough evidence that victim had witnessed
 death/that witnessing death had led to her subsequent heart attack;
High Court left open + declined to answer question of whether theft
would’ve been enough for conviction
 not supply of illegal drugs
o MacAngus v HM Adv: there wouldn’t necessarily be break in
causation even if victim took drug themselves; supply of drugs wasn’t
relevant lawful act; even if there could be liability for death there
wouldn’t necessarily be break in causation; these cases would have
to be prosecuted as reckless homicide
o ‘lawful act’ or reckless homicide: death is caused recklessly [potentially in course of
otherwise lawful act]
 Paton v HM Adv: "It is now necessary to show gross or wicked or criminal negligence,
something amounting to, or at any rate analogous to, a criminal indifference as to
consequences." (Lord Justice Clerk Aitchison”
 for liability in this offence what is required is one of gross/wicked/criminal
negligence which arises to criminal indifference to consequences
 test seems a bit circular – if we ask what’s gross negligence, it’s negligence
that is severe enough to be criminal; if we ask when it is severe enough to
be criminal, we say when it’s gross; so for a long time law on this was not
especially helpful
 in more recent times there’s been more clarification
 Transco plc v HM Adv (No 1): accused’s company was responsible for gas
supply in ersidental area; failure in supply caused explosion which killed 7
ersidents in nearby houses; was considered severe corporate negligence
o referenced Cameron v Maguire – indifference to/disregard of
possible consequences
o ofificially court didn’t overrule paton so it is technically still valid law;
but Transco says that gross negligence now just means same thing
as recklessness in ordinary sense
 road traffic homicide offences: statutory offences created specifically to deal with death on roads
o not exempt from usual law of murder + culpable homicide; simple fact that death occurred
in traffic incident doesn’t mean that law of murder/culpable homicide doesn’t apply
o McDowall v HM Adv: case where accused had been speeding, went to overtake car in
front of him, moved to opposite carriageway, suddenly pulled back into own carriageway,
caused collision which caused couple of deaths, was charged with culpable homicide
even tho it was death on road
o HM Adv v Purcell: went further to involve murder charge; pure traffic was waiting at
crossing; accused drove past traffic at 60mph; went through red light; hit child; was
accused of murder
o but there’s been perception for long time that juries are generally quite sympathetic to
drivers in relation to death caused in relation to traffic incident; that perceived reluctance
to convict led to enactment of road traffic act 1988 – one of purposes was to create
numerous offences which apply only to deaths caused in traffic accident; thinking was
that juries would be more likely to convict on comparatively less serious homicide offences
 causing death by dangerous driving (s1)
 dangerous driving = “falls far below what would be expected of a competent and
careful driver” (s2A) – large deviation
 other offences of causing death by
  careless/inconsiderate driving (s2B) – conduct that falls somewhere below
what would be expected of competent and careful driver
 careless/inconsiderate driving while under influence of drink/drugs (s3A)
 driving while unlicensed, disqualified/uninsured (s3ZB) – doesn’t require
any form of mens rea/careless/inconsiderate driving – just by fact that u r
unlicensed/disqualified/uninsured which is enough to render u liable for
homicide offence under this section – seems to be one of strict liability – no
mens rea required, just that u’ve committed unlawful act, even by
accident/mistake; could be used when driver was not at fault at all – e.g. ur
driving ur car, ur license has expired previous day, technically ur driving w/o
insurance, driving perfectly safely, child jumps out in front of ur car, through
no fault of ur own u kill them; what happened was that large number of
people were charged w this offence in v similar circumstances which created
number of appeal cases
o [ENglish case – UKSC] R v Hughes: defendant was driving w his
family in van that he owned; he was driving around bend; coming in
opposite direction was person driving v dangerously; he was high on
heroine + other drugs at time; person ploughed into defendant’s van;
he was killed in accident which led to police attending scene and
immediately concluding that victim had been responsible for
accident; defendant in their judgment had no blame on his part;
evidence emerged that defendant didn’t have valid insurance; he was
charged for causing death of other driver while driving uninsured;
even tho police concluded that fault lay entirely w victim, when they
found out that person didn’t have valid insurance they chose to
charge him w homicide offence; to many people this seemed unfair;
court said at least some minimal amount of fault in driving was
required, interpreting statute non-literally; used interpretation of mens
rea and said parliament ouldn’t possibly have intended that person
could be convicted of such a serious offence when not at fault
o [Scottish case] Stewart v HM Adv: affirmed R v Hughes reasoning
 another new statutory homicide offence – corporate homicide – created in corporate
manslaughter and corporate homicide act 2007 s1 – created bc historically it was v hard to hold
corporations responsible for deaths as a result of their negligence, e.g. Transco case where
corporation had managed its affairs negligently which resulted in explosion; historically law was
v complicated – to convict company u effectively had to find person in company management
who themselves astisified required mens rea for offence, e.g. in case of reckless homicide u had
to find someone to whom u could attribute required mens rea – there had to be proof that u could
say this person knew about risks, were indifferent and allowed company’s activities to carry on
– 2007 act was to make those prosecutions easier by introducing new offence of corporation
homicide and requirements that were easier to fulfil
o elements of offence
 duty of care owed by corporation to victim – determined in way that it would in civil
law – in delict – if duty of care owed in civil law sense
 gross breach of duty of care
 breach caused victim’s death
 breach must have resulted from how activities were ‘managed or organised’
Lecture 9
 assault: attack upon person of another with evil intent
o actus reus: attack
o mens rea: evil intent
 assault is conduct crime – defined by specific kind of conduct that’s prohibited as opposed to
result – focus is on attack itself; it’s not necessary to prove causation of injury; causation is not
element of offence of assault; it’s attack on person; we’re not concerned with result that follows
 single, broad offence – aggravating factors may be mentioned in indictment/complaint that may
affect sentence that’s passed, e.g. degree of injury suffered, whether victim’s life was
endangered, whether victim had particular characteristic [police officer in execution of their
duties], whether weapon was used, etc.
 actus reus: attack
o paradigm case is direct use of violence – e.g. if u took a knife to someone, struck
someone, etc.; case law mostly concerns marginal cases; how far does concept of attack
extend?
o indirect inflictions of violence?
 David Keay: victim was child riding horse; accused repeatedly whipped horse while
boy was riding it, causing horse to throw victim off its back; horse then stamped on
victim as well which caused significant injury to him; accused was charged with
assault on basis of these facts; challenged relevance of that charge, arguing that
whipping horse was not direct use of violence; therefore wasn’t attack and not
capable of being foundation of charge of assault; court disagreed, holding that this
was example of attack; so even tho there was no direct physical contact this was
nevertheless indirect use of force which had caused horse to attack
 Kay v Allan: victims were 2 young boys repeatedly trespassing on accused’s
garden; one day accused released his dogs onto them who ran towards children
and bit one of them; conviction for assault was upheld even tho there was no direct
contact/use of force; there was clearly indirect violence
o threatening gestures?
 Atkinson v HM Adv: accused had jumped over counter of service station, presented
knife to victim (shop attendant working there), held knife to his neck; jury convicted
one of accused in this case on that indictment but didn’t convict Atkinson; said he
was guilty of jumping over counter but don’t find allegation proved that Atkinson
was involved in use of knife; so Atkinson appealed against his conviction on basis
that what was left in charge was no longer assault; argued that if what they were
saying was all he did was jump over counter, that wasn’t assault – what made this
attack was use of knife; so he wasn’t guilty of assault; on appeal high court
disagreed – said that threatening gestures can themselves constitute attack and
be actus reus for assault; on that basis Atkinson’s conviction was affirmed
 Gilmour v McGlennan: accused was in car; called victim over to him; pointed toy
gun at victim and said give me all ur money or I’ll shoot u; victim ran off; after
incident he was reported to have been v agitated and upset; when accused was
arrested his defence was that pointing gun had just been joke; no reasonable
person would’ve thought gun was real; so he hadn’t committed assault; on appeal
court applied principle from Atkinson – if there’s threatening gesture that’s sufficient
to produce fear and alarm, that constitutes assault; court felt that fitted facts here
even tho gun was only toy
 mens rea: evil intent
o attack must be intentional [not reckless, negligent, etc.]
 o modern authority suggests ‘evil’ doesn’t add anything to this – that there’s intention to do
sth that amounts to unlawful act is sufficient mens rea for assault
 Smart v HM Adv: accused had agreed to fight; on basis of this was charged w
assault for his actions during fight; sheriff directed jury that mutual consent involved
wouldn’t be defense to assault; on appeal court said consent was not defence for
assault charge; relied on definition of crime – assault is attack with evil consent; in
this case evil intent was clearly to cause injury to one another which amounted to
mutual intention to attack; used example of sporting events – difference lies in
mens rea; intention in sporting events is to participate in unlawful activity; in this
case that wasn’t true; intent was only to inflict unlawful violence on one another; so
mens rea of assault was still present
 Lord Advocate’s Reference (No. 2 of 1992): case involving threatening gestures;
accused had walked into shop with toy gun, pointed it at person behind counter,
demanded she give me all the money in the till and told her to lie down on ground;
at this point he noticed there were other people in shop; when he noticed this he
ran away; later on accused turned himself in at police station on his own volition;
said it was joke; if shop assistant had offered money he wouldn’t have taken it; it
was just joke; at his trial for assault trial judge directed jury that if they believed his
evidence then that would mean he didn’t have required mens rea so they would
have to acquit him; clearly jury did believe this so he was duly acquitted; following
acquittal Lord Advocate referred issue to High Court; so reference court held th at
trial judges h ad been wrong – made classic mistake of confusing motive with
intent; motive may have been to do this for joke; but motive is generally irrelevant
to criminal liability; even if his motive was just to pull practical joke, he intended to
do this by threatening cashier, causing cashier fear and alarm; so he had required
intention for assault even tho his motive may have been just to do this as joke;
court again stressed that evil intent just means intention to do sth that is in fact
unlawful act
 issue of consent to assault
o consent is not valid defence to assault in scots law: Smart; court took absolutist approach
– consent is never defence to assault under any circumstances; they dealt w this issue
instead with how mens rea is defined – if accused intends only to engage in lawful activity,
they will lack evil intent and thus can’t be liable, e.g. sporting events, boxing matches,
things that would normally involve assaults in context of lawful activity – if all accused
intends to do is participate in lawful activity they won’t have required mens rea
o raises question which hasn’t been answered yet in scots law
o what if victim positively wants to be injured?
 in scots law we may have to ask whether or not we view e.g. sado-masochism in
R v Brown to be lawful activity (as in SMart); High COurt is likely to say yes
 English law: R v Brown
 rule is that u can’t consent to be injured but u can do if public interest speaks
in favour of allowing consent as defense
 was later taken to ECHR in Laskey v UK where praticipants in Brown tried
to challenge their conviction on basis that it was unjustified interference with
their right to private life but European court disagreed with that argument –
interference with that right was justified
 corporal punishment – seems to be problem bc it satisfies definition of assault
 o historically, parents and guardians may use defence of “reasonable chastisement” –
punishment was reasonable in all circumstances – governed by statute in s51 of Criminal
Justice (Scotland) Act 2003 s51; main point is that reasonableness if question of fact for
court to decide
o blows to head, shaking of child and use of implement are inherently unjustifiable
o courts might want to consider nature of what was done to child, why it was done,
circumstances in which it took place, duration and frequency, any effect on child, child’s
age + other personal characteristics
o defence of reasonable chastisement is almost certain to be abolishment at some point
soon so all forms of corporal punishment will constitute assault – bill before SP called
Children (Equal Protection from Assault) (Scotland) Bill – clause 1 abolishes corporal
punishment; private members’ bill; but current SG has indicated it will support this; so in
practice bill is almost certain to pass
o defence has already been made unavailable to teachers – Standards in Scotland’s
Schools etc. Act 2000 s16
Lecture 10
 offences of reckless injury + endangerment – unintentional causation of physical harm + creation
of danger to other people -so even if u don’t intend to attack someone, if u harm them w mens
rea of recklessness u may fall under these offences
 nomen juris issue: no requirement to name offence in indictment/complaint – just needs to set
out set of facts which if proved would suffice for criminal liability; normally it’s not an issue that
offence isn’t named; but in this context it’s harder to tell bc all u get often that person culpably
and reckless did X – so result is uncertainty about precisely what offences exist in this area and
their definition
 2 general types of charge in this area
o reckless endangerment (endangering the lieges)
o reckless injury
 difference between these 2 things – first one involves putting someone in danger/at risk w/o
actually causing harm; second involves actually causing them injury
 some established particular cases in which it’s well-known that there can be liability for certain
conduct
o discharge of firearms
o administration/supply of harmful substances
 required mens rea for all of these charges is recklessness in common law sense, i.e.
indifference/disregard as defined in Cameron v Maguire
 culpable and reckless endangerment of lieges [public/section of public]
o McPhail v Clark: farmer who set fire in farm, causing smoke to obscure road and car
crash; where charge of reckless endangerment might apply – u create dangerous
situation, even accidentally; if u fail recklessly to remedy that dangerous situation u
created, that could be subject to reckless endangerment
o Normand v Robinson: rave started at derelict warehouse premises; alleged to have been
dangerous in numerous respects, e.g. no mains electricity, no lighting (only lighting
provided was from candles), no fire alarm, no means of escaping fire, no firefighting
equipment, no running water, there were holes in floor, there was flooding + debris lying
around; charged w reckless endangerment – by organising this event they put in danger
attendees; sheriff dismissed complaint on grounds that it didn’t specify criminal offence;
prosecutor appealed against that decision and on appeal court agreed w prosecutor that
charge was relevant one – behaviour alleged against 2 co-accuseds did constitute
 criminal offence according to HIgh Court which said that all that needs to be established
is some conduct to which a criminal indifference to consequences could be attributed to
constitute reckless endangerment offence; charge related only to event – stage at which
accused were arrested no one had gone to event yet; even potential danger was
considered to be enough to constitute reckless endangerment; offence is quite broad in
scope
o Robertson v Klos: involved charge of what was effectively dangerous driving; accused
was caught driving at 156mph on carriageway while using his phone so he only had 1
hand on wheel; on other hand it was also found he was in full control of car; he hadn’t lost
control of car; he barely passed another driver on road; hadn’t actually endangered other
road users; normally this kind of conduct would be charged under statutory offence of
dangerous driving; but for technical reasons that charge wasn’t possible; so prosecutor
instead chose to try him for reckless endangerment; when relevance of that charge was
challenged, High Court sided with prosecutors, saying charge was relevant in this case
even tho other road users hadn’t actually been put in danger; indifference to possible
consequences was enough to bring this potentially within offence of reckless
endangerment; even tho no one had yet been put in danger, nevertheless this was still
enough to constitute reckless endangerment
o capable of applying in wide range of situations where person puts another person in
actual/potential danger
o how much danger must the conduct create? not very much – even if it’s relatively minor
physical injury/only to 1 person that’s enough to justify reckless endangerment charge
 known as sharps cases – all these cases have common pattern of facts – accused
person is arrested on another charge [usually drug charges]; they’ll be searched
by police [standard routine upon arrest]; suspect will be asked whether they have
any sharp objects on them which they should then remove before officer searches
them; accused either denies that they do or fails to produce any sharp objects on
them; officer finds object [usually syringe] and on that basis person would be
charged w endangering police officer
 Normand v Morrison: involved accused having denied needle in her bag when
being searched; she did in fact have unguarded needle; on that basis she was
charged w reckless endangerment for officer who searched her; sheriff held that
this was relevant charge; this was first incidence case so didn’t carry any particular
authority; principle wasn’t confirmed until Kimmins
 Kimmins v Normand: accused denied when he was searched that he had any
sharp objects when he did know he had syringe in his pocket; officer injured himself
when he found it; so there was charge of reckless conduct against accused for
exposing officer to risk of infection; this time sheriff’s decision was appealed but on
appeal high court upheld judgment of court and also judgment of court in earlier
case and supported general idea that there could be reckless endangerment
charge in these cases even tho only person harmed was officer – even tho no risk
of greater injury to wider public
 Donaldson v Normand: accused was searched, arrested, asked; he removed
number of syringes from his pockets; made genuine effort to assist officer but had
left one syringe in his sock which officer had found; he said he’d forgotten abt it bc
he was high at the time of being searched; High Court wasn’t v sympathetic to that
argument and in fact High Court said bc he was voluntarily intoxicated it was not
 possible to use that as denial of mens rea; so he was still liable for reckless
endangerment
 Mallin v Clark: when accused was asked whether he had any sharp objects, he
said he didn’t know; after trial resulted in conviction, on appeal accused raised
argument that effectively what he was being held liable for here was omission; thus
he couldn’t be liable unless there was some positive duty for him to act; HIgh COurt
agreed w that ground of appeal and quashed his conviction; agreed that general
rule on omission applied; prosecution would have to prove there was positive duty
to disclose existence of syringe; theyw erent saying that wasn’t possible/there was
no such duty but they were saying that prosecution had to prove it; if prosecution
failed to prove there was positive duty, they had failed to establish elements of
defence so they could not impose liability
 culpable and reckless discharge of firearms
o not entirely clear whether this is just species of reckless endangerment or where there’s
separate offence called reckless discharge of firearms; doesn’t matter; it is clearly
established that u can liable for it
o Gizzi v Tudhope: case involving clay pigeon shoot on grounds of abandoned hospital;
there were some workmen who were invisible to accused; accused fired shotguns; pellets
from shotgun cartridges ended up injuring workmen who couldn’t see; on that basis they
were charged w recklessly discharging their firearms; court in this case was content to
uphold that charge
o Cameron v Maguire: guy was testing newly bought rifle; lived in house in fairly remote +
rural location; had target set up at back of his house that he was using to test rifle;
nevertheless there was path running through woodland behind his house; there was also
main road at front of house so there was risk potentially that anybody walking along this
path might be hit; there was risk that if bullet ricocheted it might endanger anyone using
road; again given those risks court was willing to say that this was a case of reckless
endangerment; so despite fact that he lived in quite a remote location, there was enough
of a risk for his conduct to be considered reckless; mens rea of recklessness in sense of
indifference/disregard as to possible consequences was required which in this case was
satisfied
o Campbell v HM Adv: accused was farmer; there was group of children who repeatedly
trespassed on his land; on some occasions they caused damage to farmer’s property;
farmer had tried on numerous occasions to ward them off; on this occasion he decided to
take more drastic action; when he saw boys trespassing on his land he fired shotgun into
trees (not at boys themselves) to scare them off; but some pellets from one of shotgun
cartridges hit one of boys and that was again basis for successful charge of recklessly
endangering them; this was not case of intentionally trying to hurt boys – he was only
trying to scare them – but fact that he had done so recklessly (risking injuring them) was
enough for court to find him liable
 culpable and reckless injury
o historically charges of reckless conduct had to allege endangerment of lieges; now
accepted that recklessly causing injury is itself a crime
o HM Adv v Harris: nightcluouncer was alleged to have thrown patron of club out of building
– threw her down stairs onto road outside; caused her severe injury; principal charge was
one of assault; jury was directed: even if u don’t believe he intended to do this u can still
convict him of this alternative charge if u thought he was reckless; accused appealed
against relevance of that charge on basis that up until that point any charge of reckless
 conduct required some element of putting wider public in danger; there was no suggestion
here that he put wider public in danger; just charge in relation to one person; so charge
shouldn’t be allowed to stand; on appeal High Court rejected that submission, upholding
relevance of charge and establishing principle that recklessly causing injury is itself a
crime; so there are 2 different routes to liability in cases of reckless conduct – recklessly
causing injury or recklessly putting someone in danger; High Court said these are 2
different but equally valid grounds of liability
o HM Adv v Kelly: Kelly involved charge of recklessly transmitting HIV to sexual partner –
danger of their health + life; unreported but established that transmitting STI in this way
would be enough for reckless injury charge
o W v HM Adv: accused had thrown glass bottle off his top floor flat in 15-floor building;
injured passerby walking below; again no allegation that injury was intentional; this wasn’t
case of assault, it was case of recklessness; accused was held liable; injury alone was
enough
 culpable and reckless administration/supply of harmful substances
o administration of harmful substances (e.g. putting poison in ur drink – administering
substance to u) has long been recognised as crime
o more controversial, recent development – supply of substances that person voluntarily
chooses to take for themselves has also been regarded as equivalent to administration;
so if u supply harmful substance to another person in full knowledge that person intends
to consume it and they take voluntary decision to use that substance, u could be held for
criminal offence
o both cases were abt supply of glue-sniffing kits (solvents from which people could inhale
fumes + objects to inhale fumes with – all legal substances but potentially harmful in their
use) – supply of those substances was held to be enough for charge of reckless supply
of harmful substances
o Khaliq v HM Adv: people supplied to children
o Ulhaq v HM Adv: same principle applied to fully informed and competent adults
o there are lots of substances that if abused are potentially harmful; nonetheless we supply
them to
o Borwick v Urquhart: applied Ulhaq principle to alcohol; older guy w younger people at
party; victim was 15y/o already v drunk when she came to party; accused gave her even
more alcohol which was held to be enough to constitute reckless supply of harmful
substances even tho alcohol is entirely legal substance; tho she was under legal drinking
age even if she was fully informed, competent adult this would make no difference to
liability
Lecture 12
 until sexual offences (Scotland) act 2009 was enacted sexual offences were mostly common law
based
o implemented through majority of Scottish Law Commission suggestions (Report on the
Law of Rape and Other Sexual Offences (Scot Law Com No 209 (2007)) but with
significant departures
o attempt to modernise law – build into law more contemporary view of sexual relations and
gender equality
o sexual autonomy is hugely important dimension of 2009 act; reflected in way that consent
is one of major concepts when talking abt sex offences
 protecting certain vulnerable groups for whom there is difficulty w consent – people
w mental disorders, children, etc.
  law that existed before 2009 act in practice will still remain important bc sex
offences can sometimes remain unreported for v long period of time
 at common law before 2009 act rape was v narrowly defined as man having sexual intercourse
w woman without her consent – which meant penile penetration of vagina
 all other types = assault
 focus on lack of consent was fairly late in day – by Lord Advocate’s Reference No 1 2001 – prior
to then rape = sexual intercourse with force
 2009 Act s1
o actus reus of rape now is penile penetration of the vagina, anus or mouth of another
person without that person’s consent
 it’s possible for both men and women to be legally recognised as victims of rape
when before only women were recognised
 also includes surgically constructed penises or vaginas – for indviduals who
have undergone re-assignment surgery
 but penetration of other kinds – e.g. other body parts, objects – are not considered
rape within scots law
 SLC thought non-consensual penetration of penis was specific kind of wrong –
should be kept apart from other penetrative sexual assaults
o mens rea of rape is intention or recklessness as to penetration AND lack of reasonable
belief in consent
 first part of mens rea is as to actual penetration itself
 second part of mens rea is that they must not have reasonably believed that
complainer was consenting
 s2: sexual assault by penetration
o Actus reus: sexual penetration of the vagina or anus of another person without that
person’s consent
o Mens rea: intention or recklessness as to penetration AND lack of reasonable belief in
consent
o ‘Sexual’ (s 60(2)): if a reasonable person would, in all the circumstances of the case,
consider it to be sexual – to distinguish from penetration done for other purposes/ways
o SLC intended that this would be objective test – hence reasonable person dimension of it
– so it doesn’t matter if person has non-standard sexual proclivities
o some overlap w rape
 s3: sexual assault
o Actus reus (all without consent):
 sexual penetration of vagina, anus or mouth of another person;
 sexual touching of another person;
 other sexual contact (bodily or otherwise); (so can be under/over clothes)
 sexually ejaculating semen on to another person;
 sexually emitting urine or saliva on to another person
o Mens rea: intention or recklessness as to the action AND lack of reasonable belief in
consent
o Again, the Act’s definition of ‘sexual’ applies
 s2 and s3 actus reus are v similar; that penetration can be by other parts of body than penis –
but could also be penis; so s2 and s3 are broader in that penetration can be by other body
parts/objects – intentional so in situations where it’s not clear whether penetration was in fact
done by penis/some other kind of penetration (e.g. complainer is blindfolded, sexually
 inexperienced) prosecution is still possible; also to ensure that prosecution is possible where it
is uncertain whether there was penetration
 ss4-7: coercing/compelling sexual activity
o common components of these offences
 Actus reus: the complainer does not consent to the activity
 Mens rea:
 All crimes of intention
 All require lack of reasonable belief in consent
 All except s4 require purpose of either obtaining sexual gratification or
humiliating, distressing or alarming the complainer
 Sexual coercion (s4): accused causing another to participate in sexual activity w third party
[someone else/animal] – doesn’t involve accused themselves
o also for when accused is being penetrated by complainer - e.g. woman is rapist
 Coercing a person to be present during sexual activity (s5): i) engaging in sexual activity in
complainer’s presence or ii) causing the complainer to be present while other(s) engage in such
activity
o complainer is inactive/passive – not actually involved but being coerced into being present
while it happens
o “cause” is not defined here
o purpose that’s required – obtaining sexual gratification – must relate to complainer’s
presence at relevant sense – not from carrying out sexual activity but from having
complainer present in coerced way
o no requirement that complainer actually watches what’s going on – just needs to be in
position to observe it (even if they cover their eyes)
 Coercing a person to look at a sexual image (s6): causing another to look at a sexual image (i.e.
a still or moving image of i) a person engaging in sexual activity or ii) a person’s genitals)
o complainer is inactive/passive again – seeing something
o component of purpose of sexual gratification must be present – so doesn’t apply when
someone sends u genitals bc it’s funny
o doesn’t include breasts/images of complainer themselves – images of accused/other third
person – but there is now legislation to deal w that kind of situation – e.g. revenge porn –
the offence of disclosing, threatening to disclose, an intimate photograph of a complainer
(s2 Abusive Behaviour and Sexual Harm (Scotland) Act 2016)
 actus reus: photo of breasts/butt/genitals either naked/covered in underwear – of
act not usually done in public
 mens rea: intention to cause complainer fear, alarm, distress/recklessness as to
whether complainer suffers fear, alarm or distress
 accused defence if they have proof that complainer did consent to disclosure or if
accused reasonably believed that complainer consented or if disclosure of images
was necessary for protection/investigation/prosecution of crime or if disclosure was
reasonably believed to be in public interest
 Communicating indecently (s7): i) sending sexual written/verbal communication to the
complainer or ii) causing the complainer to see or hear such communication
o complainer is active/passive
o must be non-consensual – so they look at nature of relationship
o once sent offence has been committed even if it gets intercepted by someone else
 s8: sexual exposure
 o Actus reus: exposing genitals to complainer in a sexual manner without complainer’s
consent
o Mens rea:
 Intentional exposure and intention that complainer see genitals
 Lack of reasonable belief in consent
 Purpose of either obtaining sexual gratification or humiliating, distressing or
alarming the complainer
o Meaning of ‘in a sexual manner’?
o “genitals” given ordinary meaning – seems as tho offence is committed even if complainer
didn’t actually see accused’s genitals – this requirement of exposing genitals in sexual
manner doesn’t seem to be adding much to definition but SLC wanted to make sure
someone exposing genitals for some other reason (e.g. to urinate) wouldn’t fall under this
crime bc it might be crime of some other kind
o if they expose their genitals without intention of exposing to another person it might be
considered another offence
 s9-10: voyeurism
o wasn’t actually included in SLC’s report – didn’t make any recommendations about this –
was added into legislation at Stage 2 of Bill – modelled on English Sexual Offences Act
2003
o Actus reus (all without consent):
 Observing the complainer doing a private act
 Operating equipment with intention of enabling the accused or some other person
(C) to observe the complainer doing a private act
 Recording the complainer doing a private act with the intention that the accused or
some other person (C) will look at an image of the complainer doing the act
 Operating equipment under the complainer’s clothing with the intention of enabling
the accused or some other person (C) to observe the complainer’s genitals,
buttocks or underwear, where these would not otherwise be visible
 Recording an image under the complainer’s clothing with the intention of enabling
the accused or some other person (C) to observe the complainer’s genitals,
buttocks or underwear, where these would not otherwise be visible
 last 2 ways were not actually included during course of 2009 act going through
parliament – added to 2009 act by s14 Criminal Justice Act 2010 – added bc of
what is colloquially known as upskirting – people putting phones up women’s skirts
and taking pics
o s10: defines voyeurism
 S 10: For the purposes of s 9, a person is doing a private act if the person is in a
place which in the circumstances would reasonably be expected to provide privacy,
and
 The person's genitals, buttocks or breasts are exposed or covered only with
underwear
 The person is using a lavatory, or
 The person is doing a sexual act of a kind not ordinarily done in public
 reasonable expectation of privacy – does not necessarily involve complete
enclosure – e.g. in communal changing room/shower but context is such that u’d
except privacy from people outside of that changing room environment
o Further mens rea requirements:
 Lack of reasonable belief in consent
  Purpose of either obtaining sexual gratification (for the accused or some other
person (C)) or humiliating, distressing or alarming the complainer
o 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

Lecture 13

 prior to 2009 act consent wasn’t well-defined

o in Marsh, jury asked what consent meant; response was that consent means whatever its
ordinary meaning is
o in consent we’re often concerned w how that consent can be proved
o advantage of looking at consent is that it allows law to capture some of non-physically
violent ways through which someone’s sexual autonomy might be undermined; - not just
when someone is physically compelled; it can be undermined in other ways
o consent is v much part of 2009 act – LC wanted more positive, cooperative model of
consent – consent must be given in interactive way – there must be collaborative, mutual
consent; keeping in time with how contemporary society views consent
o so s12 has general definition of consent – “free agreement” – does this capture idea of
cooperation?
o juries are told that consent is continuing, active agreement by both parties
o 2009 act has non-exhaustive list of circumstances where complainer is deemed not to
consent (s13)
 English legislation includes 2 scenarios where consent will not exist – when they’ve
been deceived into purpose of act
o rules about consent while asleep/unconscious (s14)
o giving/withdrawing consent (s15)
 circumstances of non-consent (s13(2))
o S 13(2)(a): Where B is incapable of consenting because of the effect of alcohol/other
substance (R v Bree [2008] QB 131; DC v DG & DR [2017] CSOH 5)
 cause of intoxication is not important here – used to be the case in other places
that it’s only when accused has got B drunk; applies even if B voluntarily
drinks/takes drugs
 so how do u draw the line? when is that threshold crossed? no set threshold –
depends on circumstances and what appears to be capacity of complainer
 it has been suggested that capacity and consciousness are different things – u
don’t have to be so drunk ur unconscious; u can lose capacity before losing
consciousness
 in R v Bree drunkenness alone isnot enough to show u don’t have capacity to
consent; court held that memory loss, vomiting, passing in and out of
consciousness were not enough to show lack of capacity
 in DC v DG & DR – there was no prosecution actually brought; it was civil case;
alleged victim sued man that she claimed raped her; different burden/standard of
proof; not criminal case – was abt whether person was liable for damages; there
was evidence from taxi driver that she was unresponsive; didn’t seem capable of
engaging in meaningful convo w him; here it was established that she had lost
capacity for consent – from evidence by psychologists + taxi driver; so this is not
binding on any criminal court but future cases may look to this
 what if B’s given prior consent but then becomes intoxicated?
  the way that bill was originally worded said that there was no free agreement
when only indication/expression of consent occurred when B was
intoxicated; so when 2 people had agreed to have sex earlier/when sober
and then got v drunk, that consent would still be operative; but the way that
legislation has been enacted suggests that when sex occurs at time
somebody is incapable of giving consent there is no consent; it doesn’t
matter if they gave earlier consent
 voluntary intoxication is not defence to criminal activity – drunk accused person
can’t use his voluntary intoxication as defence
o S 13(2)(b): Where B agrees or submits to conduct because of violence/threat of violence
against B or any other person
 threat of violence may to be someone other than complainer, e.g. if accused
threatens to injure complainer’s child/other loved one
 threats described are only threats of violence – other kind of threats [I’ll fire u if u
don’t have sex w me] don’t fall under s13; but could apply under s12
o S 13(2)(c): Where B agrees or submits to conduct because unlawfully detained by A
 must be unlawful – lawful detainment e.g. prison doesn’t apply here; but could
apply under s12
o S 13(2)(d): Where B agrees or submits to conduct because mistaken, as result of
deception by A, as to nature or purpose of conduct
 if complainer doesn’t understand conduct is of sexual nature – e.g. B thinks they’re
carrying out medical procedure/procedure that’s not required when actually it’s for
sexual purposes, e.g. that penetration of vagina/anus by fingers is necessary for
treating thrush
 R v Williams: singing teacher who engaged in sexual intercourse with 16y/o student
under pretence that her breathing wasn’t quite right and he had to perform
operation to enable her to produce her voice properly was convicted of rape
 Baillie v HM Adv: General practitioner was held to have sexually assaulted his
female patients under pretence of performing medical procedures on them
 if SOMEONE ELSE deceives her s13 doesn’t apply
 what if someone else has deceived them abt HIV status of parties? will that count
as deception as to nature of conduct? English case R v V says that that’s not
deception but non-disclosure; so failing to tell another person that ur HIV positive
doesn’t undermine consent under general provision of 2009 Act; but in Assange
court said R v V tells us that non-disclosure is not going to undermine consent but
lying abt it might possibly be deception; court also talked abt whether or not person
agrees to have sex w another person if condom is used but condom is then
removed later undermines consent under general provision
o S 13(2)(e): Where B agrees or submits to conduct because A induces B by impersonating
someone known personally to B
 must be deliberately induced – doesn’t apply to misunderstanding
 must be KNOWN PERSONALLY to B – if pretending to be someone famous that
doesn’t fall under s13
 doesn’t apply if lying abt how much money u earn, if ur married, etc.
 but there has been number of cases where young defendants have been
designated female at birth and are either trans or gender queer have
identified/presented to complainer as being male; sex has occurred; and court has
 held that that “deception” has undermined consent; various critiques have been
made of this
o S 13(2)(f): Where only expression or indication of agreement to conduct is from someone
other than B
 doesn’t apply for sign language interpreter – bc consent is being given THROUGH
third party not by third party
 DPP v Morgan [1976] AC 182: honest belief by a man that a woman with whom he
was engaged with sexual intercourse was consenting was a defence to rape,
irrespective of whether that belief was based on reasonable grounds
 under 2009 act there would be no consent in this case
o all these scenarios are where consent doesn’t exist; but it’s still open for jury to
say that under s12 there is no consent even if s13 doesn’t apply
 s14: a person is incapable, while asleep or unconscious, of consenting to any conduct cf. original
Bill
o different to what LC intended – that there’s no free agreement where at time of conduct
complainer is asleep/unconscious in circumstances where person has not consented prior
to sleep/unconsciousness – this proved unpopular; Parliament was worried that this
provision would make it too easy for sex offenders to get away w it bc they could always
say they agreed beforehand
o prior consent is more theoretical problem than practical issue for those in relationships
 S 15(2): giving consent to one sexual act does not by itself constitute consent to a different sexual
act
 S 15(3): consent may be withdrawn at any time before completion of conduct/during conduct
 S 15(4): if the conduct continues it continues without consent
 ^talking about consent when it comes to actus reus
 what about mens rea as to non-consent (s16)?
o Lack of reasonable belief in consent an essential element of all offences discussed so far
o Belief in consent includes belief in capacity to consent (Winton v HM Adv 2016 SLT 393)
– for there to be no liability accused must not have reasonable belief that complainer had
capacity + did consent; consent implies that complainer had capacity to consent
o Honest but unreasonable mistakes as to consent will not exculpate accused person (when
before 2009 act it did)
 how does jury assess reasonableness? act doesn’t define reasonable as concept
but in s16 it does say that jury must have regard to steps taken by accused in trying
to ascertain whether complainer did give consent – so there’s focus on what
accused did to determine whether there was consent on complainer – when jury
looks at those steps they must figure out whether they were reasonable or not –
did they constitute reasonable attempt to ensure that consent existed?
o S 16: In determining whether a belief was reasonable regard is to be had to steps taken
by A to ascertain whether B did consent and what those steps were

Lecture 14

 offences against children

o 2 groups
 Offences against young children (under 13)
 Offences against older children (over 13 but under 16)
  Different underlying principles: younger children are deemed incapable of consent;
older children may be capable of consent but must be protected from exploitation
 offences against young children [aged under 13]
o don’t require lack of consent on part of complainer – consent of younger child is
completely irrelevant here
o there is no defence available to accused person on basis that they have mistaken age of
child – these are strict liability crimes with reference to age of child; rationale for this is
that if child is this young there’s no real way that someone could conceivably believe they
are 16+ - s27
o R v G – court had to think abt whether Art.8 or Art.6 of ECHR might have been breached
by lack of availability of this defence bc 15y/o defendant and 12y/o claimant had sex 15y/o
defendant said he believed claimant was 16 and had consented; court held that although
Art.8 was engaged it was not breached; they held that there is no defence of mistake as
to age of child and this was not breach of human rights
o modified versions of offences above
 rape of a young child (s 18)
 assault by penetration (s 19)
 sexual assault of a young child (s 20)
 causing a young child to participate in or be present during sexual activity (ss 21 &
22), to look at a sexual image (s 23) or to see/hear an indecent communication (s
24)
 sexual exposure towards a young child (s 25)
 voyeurism towards a young child (s 26)
 Offences against older children (13 or older but under 16)
o Modified versions of offences above – in sense that these crimes are committed EVEN IF
older child has consented; if they haven’t consented to sexual activity it’s more likely that
one of offences (i.e. those which involves lack of consent – ss1-9 offences) will be charged
bc they’re seen as more serious offences – they have stricter penalties attached to them
 intercourse with an older child (s 28)
 penetrative sexual activity and sexual activity with an older child (ss 29 & 30)
 causing an older child to participate in or be present during sexual activity (ss 31-
32)
 communicating indecently with an older child /causing an older child to see or hear
indecent communication (s 34)
 sexual exposure to an older child (s 35)
 voyeurism towards an older child (s 36)
o ss28-36
 Accused must be 16 or older
 Separate offence of older children engaging with sexual activity with each other (s
37)
 Intentional or reckless sexual penetration of B’s vagina, anus or mouth by
A’s penis
 Intentional or reckless sexual touching of B’s vagina, anus or penis by A’s
mouth
 If B consents then she / he also commits the offence
 Defences in relation to offences against older children (s 39)
 That accused reasonably believed complainer was 16 or older (with 2
exceptions) NB AB v HM Adv [2017] UKSC 25
 o but 2 limitations on availability of that defence
 won’t be available if accused has previously been charged
with so-called relevant sexual offence
 won’t be available if there is risk of sexual harm order against
accused
 UKSC held that this provision wasn’t law bc this interfered with
Art. 8 ECHR – bc if u restrict defence in this way, this means
that personal info regarding previous convictions/charges is
revealed in court which is recorded for future use; question is
whether this interference with ECHR ARt.8 is necessary for
prevention of crime – was discussed at length in UKSC; aim
of legislation is protecting children from sex offences; but
problem + why it was deemed to be disproportionate
interference was that legislation includes sexual activity that
goes beyond kind of sexual activity s28 is really designed to
protect children against – includes far broader range of
conduct; so justification given for having this defence is that if
someone’s committed one of these crimes they’re being put
on notice that this is not sexual behaviour – but bc of way
legislation has been drawn up relevant sexual offences went
way beyond these crimes – it was thought that people charged
w this broad range of crimes weren’t necessary put on notice
for these types of sexual offences; so it’s not yet become clear
what will happen as a result of this
 That accused and complainer are within two years of one another in age –
but this defence does not apply to penetrative sexual activity
 interaction with older law
o 2009 act abolished and replaced many common law crimes with statutory crimes – but
many common law crimes remain
 incest – under Criminal Law (Consolidation) (Scotland) Act 1995, ss 1 & 2); Stübing
v Germany (2012) 55 EHRR 24
 ss1: it is crime for man and woman related to each other to have sexual
intercourse
 defence – if accused can prove on balance of probabilities that he/she didn’t
know + had no reason to suspect they were related to other person; if
accused can prove that they didn’t consent to sexual activity; if 2 parties
involved were married to each other
 ss2: it’s crime for step-parent and step-child to have sexual intercourse – if
step-child is under 21/any time before they reach age of 18 lived in same
household as accused and were treated as child of that family
 argument has been made in Stubing v Germany that when it’s 2 consenting
adults what’s the harm involved? offences against children are already
covered under other crimes so incest offence is only for adults; question is
raised abt morality – what’s the harm in 2 consenting adults? genetic
abnormalities, etc. we also tend not criminalise people with genital
disorders; there’s also questions abt if 2 children as in deed happened in
Stubing are raised separately whether there’s any kind of corruption of
family unit
  so unsuccessful attempt to challenge incest laws in Germany
 public indecency
 leading case is Webster v Dominick 2005 1 JC 65 – effectively abolished
common law crime called shameless indecency which came into being
through statement by Macdonald that all shameless, indecent conduct is
criminal – approved in McCoughlan v Boyd but that crime was of fairly
limited importance until Watt v Annan 1978 – here it was held that crime
could encompass obscene publications and displays; and following decision
in Watt v Annan courts engaged in process of developing that crime so it
covered indecent exposure and certain types of sexual relationships not
captured by incest legislation (e.g. foster-carer with child in their care)
 in Webster v DOminick high court held that idea of shameless indecent
conduct being crime no longer applied; only thing that survived as a result
of WEbster v DOminick was what is called public indecency – that common
law crime remained good law post-Webster; e.g. indecent exposure
[exposure of genitals in public place, sexual activity in public place]
 property offences – crimes that infringe upon property interest one might have
o 2 types of offences
 Offences of dishonesty
 Theft
 Housebreaking and opening lockfast places
 Embezzlement
 Robbery
 Extortion
 Fraud
 Reset – having receiving stolen goods
 Offences of destroying or damaging property
 Malicious mischief – common law offence
 Vandalism – statutory offence – all other property law offences are common
law offences
 Fire-raising
 theft
o Actus reus: appropriation of property of another without consent
 Appropriation
 Traditionally, theft was the ‘felonious taking and carrying away of the
property of another, for lucre’ (Hume)
 so theft by finding was not theft under this older definition
 Appropriation slowly replaced ‘taking and carrying away’ as courts dealt with
more theft cases
 John Smith (1838) 2 Swin 28 – accused was charged w stealing items he’d
found; when court held this was competent charge, they said he’s found
them and appropriated them for his own uses
 George Brown (1839) 2 Swin 394 – confirmed this change in definition of
theft: accused was jeweler lawfully given watches by owner in order to repair
them; istnead of returning them he kept them for himself; here court said
that conduct was perfectly legitimately charged as theft even tho clearly
there was no taking and carrying away – his initial possession was entirely
 consensual; it was this subsequent keeping of them – appropriating of them
– for his own uses that made it theft – emphasizing transition from taking
and carrying away to appropriation
 Black v Carmichael 1992 SLT 897 – most radical change in actus reus of
theft; still represents scots law today – 2 accused were becoming v
frustrated w people parking their cars on their private property; so they
bought wheel clamp and attached it to any cars parked on their land w note
attached to wheel clamp saying they’d release car when they’d pay them
levy; accused was charged w extortion and theft – they objected to these
charges saying this doesn’t satisfy definition of theft; here court said yes
that’s theft – they appropriated property by denying owners of that property
control and possession and use of that property – so u no longer need to
take away someone’s property; u just need to interfere with owner’s
control/possession/use of it
o Control and possession
o Deprivation of use
 Corporeal, moveable property
 property must be capable of being owned – excludes e.g. living humans (NB
the offence of plagium, though – but it is possible for child to be stolen from
their parent/carer)
 Dewar v HM Adv 1945 JC 5 (cf violation of sepulchre: digging up dead
bodies) – once dead body has been buried it can’t be stolen; manager of
crematorium was convicted for stealing 2 coffins and lids of number of
coffins – made furniture from them – bodies themselves were not
considered stolen
 Must be corporeal – excludes non-corporeal property e.g. information
o HM Adv v Mackenzies (1913) 7 Adam 189: involved accused
charged with stealing book of chemical formulae from his employer –
making copies of chemical formulae to sell to rivals of company; he
was charged w theft; court said that charge was relevant in so far as
it related to physical book itself but not information contained within
that book – so there may be some other kind of remedy but it’s not
crime of theft
o Grant v Allan 1988 SLT 11: accused made + kept copies of print-outs
of employers’ customers without permission and offered to sell this
info to other rivals; following Mackenzies court said this is not crime
under scots law of theft; no physical property had been appropriated
by accused, just info itself
o contrast with English law of theft – Statutory Theft Act 1968: theft is
defined as dishonest appropriation of property including intangible
property; more general policy question that it might be more
appropriate to regard intangible property as being in capable of being
stolen in this day and age; although someone having info doesn’t
necessary deprive owner of that info – they might both have copies
of that info – if it’s no longer excluded to them it may result in
economic loss, fraud, etc.; so there are arguments that it might be
worth changing definition of theft to take into account incorporeal
property
  Excludes heritable property e.g. land, buildings, etc. but things that come
from land/buildings can be
 Belonging to another
 Cannot steal one’s own property (cf s 5 Theft Act 1968 & R v Turner (no 2)
[1971] 2 All ER 411: owner of car took his car to garage for repairs; day
before he was supposed to come and collect car, he snuck up in middle of
night and drove car off without paying for repairs; was charged with theft
under Theft Act 1968 but he argued that it was his property so he couldn’t
have stolen it; as Theft Act regards property belonging to person when that
person has possession and control of it, in this scenario garage owner was
treated as having ownership of that property so registered owner could
actually steal it but under scots law this was not theft)
 Or property that is not yet owned (e.g. wild animals (Scott v Everitt (1853)
15 D 288; Valentine v Kennedy 1985 SCCR 89) – as soon as wild animal is
captured/enclosed by person (e.g. in pen), it is possible for those animals to
be stolen as they are then regarded as belonging to another person
 ‘Abandoned’ property? (Mackenzie v Maclean 1981 SLT (Sh Ct) 40; Kane
v Friel 1997 JC 69; Butler v Richardson 2013 SCL 734) – abandoned
property technically belongs to Crown so it would be theft to appropriate it;
court generally requires that prosecution prove that accused person
understood/appreciated that abandoned goods were in fact property that
someone might want to keep despite having left it on the street
o Mackenzie: damaged beer cans accused person had been instructed
to dispose of; passersby started to take them away and even paid
him for them and used them for charity event; to prosecute someone
for theft it’s not necessary for prosecution to prove who owns goods;
all they have to prove is that they didn’t belong to accused person;
accused person didn’t own beer cans and were taking them away
o Kane: 2 brothers found sink and bag full of copper piping; when they
were stopped and asked why they had these items they said they
found them and were taking them to scrap yard where they could sell
them and get money for them; charged with theft; on appeal court
said there was nothing in circumstances of case that
suggested/justified inference that these 2 brothers knew that
someone would want to keep these bits of piping and sink; so
conviction was quashed; if there’s nothing abt circumstances/nature
of items found/taken away that suggests they will be sth another
person wants to keep hold of; so it would be hard to reach conclusion
that this has been theft; for there to be theft facts must suggest that
someone wants to keep hold of these stolen items
o Butler: copper wire was taken; conviction for theft was quashed on
basis that there was nothing abt location/quality of wire that would
suggest it hadn’t simply been thrown away

Lecture 16

 Without consent
 appropriation must be carried out without consent
  there are examples where possession of item has occurred consensually;
but it’s when that subsequent appropriation (keeping it for one’s self) is done
non-consensually that is theft
 if actual transfer of rights in property has been consensual there can’t be
theft
o Macleod v Kerr and Another: Mr Galloway bought car from Mr Kerr
using stolen cheque which eventually bounced; by time this was
discovered, Mr Galloway had already sold car to Gibson acting in
good faith; under rules of contract sale was valid – ownership had
passed to Gibson from Mr Kerr from Mr Galloway; so although
Galloway could be guilty of fraud he couldn’t be guilty of theft bc
ownership had validly passed on
o Mens rea: intention to deprive the owner of their property
 Historically required intention permanently to deprive
 Intention temporarily (or indefinitely) to deprive will now suffice:
 Milne v Tudhope 1981 SLT (Notes) 42: had asked builders to carry out
repairs on his house; wasn’t happy with them so asked builders to make
changes to fix problems free of charge; they weren’t happy w suggestion
and refusd to do that; removed things from owner’s house (radiators, doors)
and held them ransom until owner of house agreed to pay them for repairs
he was asking them to carry out; on basis of those facts builders were
convicted for theft; appealed, suggesting they only intended to keep them
temporarily; court said in some instances temporary intention to deprive
owner of their property will constitute theft – where taking of items was
clandestine and for nefarious purposes
 Kidston v Annan 1984 SLT 279: accused advertised in newspaper that he
would repair electronic items for certain estimated amount of money; when
complainer gave TV set to accused, he didn’t give estimate and went ahead
and did repairs anyway; refused to give back TV until complainer paid him;
court said in this instance actions of accused had been sufficiently nefarious
for mens rea to be present
 Black v Carmichael 1992 SLT 897: tire clamping case; no intention to
deprive permanently – just until payment was made; they were charged w
extortion and theft; court said theft was held to be relevant charge consistent
w idea that temporary deprivation is enough to constitute mens rea of
intention to deprive owner of their property
 Fowler v O’Brien 1994 SCCR 112: intention to deprive owner of property
indefinitely is also sufficient to constitute mens rea of theft; accused asked
owner of bike if they could have a go on bike, rode bike off, not making it
clear to owner when/if they would return it; then just ditched bike eventually
elsewhere; was that activity theft? court said yes
 Dishonesty? these cases involved condition of property, how it had been left, etc.
but court also touched upon possibility that dishonest intention might be necessary
to uphold conviction of theft
 Kane v Friel:
 Mackenzie v Maclean:
 Butler v Richardson:
 Belief in owner’s non-consent?
  Lauder v HM Adv 2016 SCL 459: touched on question of dishonesty by
considering whether it was important that accused person had to believe
that relevant owner didn’t consent to them taking property; involved
employee of clothing manufacturing company who’d been taking items from
company for number of years and selling them on ebay and making lots of
money; when he was challenged he said he thought this was perk of job –
he was told by owners of company that he was allowed to do this; at trial
judge didn’t mention to jury that there was any dishonesty requirement; only
mentioned intention tod eprive owners of property; on appeal there was
discussion on whether trial judge should have said sth abt dishonesty; what
court held was yes he should have bc here he was claiming he didn’t know
that he didn’t have consent to take these items
 Housebreaking and opening lockfast places
o Not criminal in themselves
o Become criminal when accompanied by intent to steal
 HM Adv v Forbes 1994 JC 71: simply entering someone’s house by overcoming
security w/o intention to steal is not housebreaking but w intention to commit
another crime (e.g. rape) is not housebreaking
 Mason v Jessop 1990 SCCR 387: accused was found breaking windows of church
and found drinking on church grounds; he appealed on ground that intention to
steal hadn’t been established – was only looking for place to drink his beer; his
conviction was quashed
o Housebreaking = overcoming security of a building
 Burns v Allan 1987 SCCR 448: accused were convicted of attempted
housebreaking w intention to steal after they’d disconnected burglar alarm of night
club; these activities were considered attempts to overcome security of building
and intention to steal was established
 Heywood v Reid 1996 SLT 378: accused had smashed external security light; court
said this could be considered attempt at housebreaking – turned on facts: e.g.
where was light located?
o Opening lockfast places = breaking into locked places other than buildings e.g. cars, safes
etc.

o Also aggravations to theft (theft by housebreaking, theft by opening a lockfast place) – if
someone breaks into building and steals something they’ll be guilty of that – and their theft
will be aggravated by it
o key has been left in door and they turn key to go in – not housebreaking bc they haven’t
had to do anything to overcome security
o but if they break window/smash door in – that’s housebreaking
 embezzlement – challenging to define; consists basically in failing to account satisfactorily for
property that has been entrusted to u; involves relation of authority SO POSSESSION MUST BE
OBTAINED WITH CONSENT
o Actus reus: appropriation of property by one authorised to deal with it, and owing a duty
to account for it to the owner
 Edgar v MacKay 1926 JC 94: solicitor had instructions to recover money from other
party; didn’t get in touch with clients for number of months; during that period where
he was meant to be working for them he collected several sums of money he didn’t
tell clients about; when they found out abt this they asked for money to be sent to
 them; he didn’t do so; was convicted of embezzlement; court said his silence abt
money – lack of honest explanation and failure to pass on money – was enough to
uphold his conviction; so all u need to show is that accused has duty to account for
that property and he hasn’t
 Kent v HM Adv 1950 JC 38: accused was charged dealing with huge consignment
of apple puree; only dealing w that to arrange delivery of it from one place to
another as he was told; when it arrived at his destination recipients rejected to it bc
thought it was subpar quality; accused kept it and sold it on to someone else and
kept money; there’s nothing in circumstances of case to suggest that accused had
been authorised to deal w property in that way; so court said they’re not dealing w
embezzlement bc he wasn’t authorised to deal w property in way that he’s
breached – he wasn’t entrusted to handle/manage property in various ways; he
was only entrusted to make this delivery; so this was just theft
o Mens rea: dishonest intention
 Allenby v HM Adv 1938 JC 55: there was fish salesman who engaged in unusual
accountancy practices; he was dealing w money in way that wasn’t totally standard
and was convicted of embezzlement; on appeal he said trial judge didn’t mention
that he had to have dishonest intention to be guilty of embezzlement; court said
that was necessary part – bc bizarre accountancy practices might have good
honest explanation for them; there must be some dishonest element for there to
be embezzlement
 Moore v HM Adv 2010 SCCR 451: confirmed that dishonesty was part of mens
rea; director and enstranged wife who were co-owners of company; director was
taking money out of company to gamble and trying to repay it; suggested he was
trying to conceal his activity – he was trying to strip company of its assets so when
they divorced his wife would be deprived of assets; so appeal was unsuccessful
 McCraw v Murphy 2016 SCL 383: dishonesty is part of mens rea for
embezzlement; in addition to that this can be established through recklessness –
if someone is recklessly using company’s car for activity he shouldn’t be using it
for that is enough to constitute embezzlement
o Distinction from theft?
 theft requires appropriation which can involve initial consensual receiving of
property – so difficult to distinguish theft from embezzlement
 person can be convicted on theft on embezzlement charge and vice versa bc
they’re so similar – shown in Act
 so we want separate offence bc there’s idea that someone’s conduct should be
reflected in conviction – theft may not adequately capture breach of trust that
embezzlement involves; it’s distinctive in way that it is destroyed effectively by
conduct; embezzlement can cover dishonest appropriations that will not constitute
theft – e.g. someone can’t steal their own property but if trustee stealing trust funds
can commit embezzlement (though not theft)
 theft requires corporeal property but embezzlement doesn’t

Lecture 17

 robbery
 Theft accomplished by violence/threat of violence/intimidation
 Elements of theft must be established (NB robbery is a separate offence)
 separate assault doesn’t have to have occurred
 Level of violence?
o O’Neill v HM Adv 1934 JC 98: accused was charged with both robbery and assault as
separate crime; they were convicted of robbery but not assault; on appeal court said that
even tho assault hadn’t been proved there was sufficient evidence of violence being used
to obtain property for him to be properly convicted of robbery
o Cromar v HM Adv 1987 SCCR 635: appellant tried to argue that his actions weren’t
sufficiently violent to constitute robbery (taking bag out of hands of complainer); court said
no this action of pulling bag out of hands was sufficiently violent to constitute robbery;
handles of bag had been snapped off; enough violence – in this example not a clear
inference that there’s any fear of harm/injury to body
o Flynn v HM Adv 1995 SLT 1267: accused was charged w assault and robbery; specific
violence alleged to have been used during course of robbery (seizing complainer by
throat) had been specified within robbery charge; accused was acquitted of assault,
convicted of robbery but conviction of robbery was subject to deletion of this specific detail;
court said that convicting of robbery while deleting those components of charge didn’t
make any sense – although charge of robbery doesn’t have to go into specific details of
force used, when they are referenced they have to be proved otherwise it’s not robbery,
just theft
o Morrison v HM Adv 2010 JC 174: robbery charge included specifc reference to violence;
jury deleted reference; on appeal tried to argue that he wasn’t guilty of robbery; court
distinguished situation from Flynn, saying although jury has indeed deleted reference to
that specific violence nevertheless during course of evidence there was evidence that
violence had been used against accused – he’d mentioned that he was trying to retaliate
in certain actions he couldn’t specify bc he was drunk when robbed; there were scratches
on his face; described his experience as having been mugged; so although specific details
of violence had been erased by jury in course of evidence it was clear that some violence
had been used; so itw as okay that robbery charge was found
 extortion
o Legal term for blackmail: demands backed by threats; don’t necessarily have to be
unlawful demands/threats
o Not restricted to unlawful threats
 Marion Macdonald (1879) 4 Coup 268: accused threatened to reveal complainer’s
immoral conduct to relatives/friends unless he paid accused person sum of money
– what made this extortion was bc money wasn’t owed; there was no legitimate
debt
 Silverstein v HM Adv 1949 JC 160: appellant was managing director land lord
company; he approached manager of their tenant company and told this manager
that unless he paid sum of money owed to accused he would tell his land lords to
dispossess tenants of that manager; he had right to dispossess tenants; so
demand for money was owed (lawful) but court held this was extortion; in giving
reasons why this was extortion court gave insight into situs where combo of these
things might not be extortion
 this wouldn’t be extortion if pressure that was brought to bear on complainer
was “legitimate”; had accused here threatened to bring complainer to court
to get money that was owed? – not extortion
 Black v Carmichael 1992 ST 897: tire company case; accused didn’t have
legitimate claim to money they wanted from car owners; court said that had they
been owed that money threatening to go to court wouldn’t constitute extortion
 o Not restricted to financial demands
 Rae v Donnelly 1982 SCCR 148: accused wanted complainer to drop claim for
unfair dismissal
o The paradox of blackmail
 how can doing 2 lawful things amount to a crime?
 A discovers B is local councillor guilty of corruption; A goes to B and tells him to
resign; alternatively A goes to local newspaper and tells them abt B’s corruption;
OR A goes to B and says unless u resign I will tell the local paper that u’ve done
all this terrible stuff – extortion bc alleged wrong of blackmail is taking away
freedom and choice of another person – u r coercing someone else into doing sth
 fraud – broadly defined crime
o Inducing a person, by false pretences, to do something that he / she would not otherwise
have done
o False pretences as to some material (i.e. not collateral – on the sidelines) matter (Tapsell
v Prentice (1910) 6 Adam 354; Strathern v Fogal 1922 JC 73; Richards v HM Adv 1971
JC 29)
o Tapsell v Prentice (1910) 6 Adam 354: accused adopted false identity; pretended to be
member of gang of gypsies residing nearby in order to encourage complainer to buy rug
from her; but she didn’t lie at all about nature of rug, just claimed to be someone she
wasn’t; bc court said there was no lying abt nature of item being sold the lies were
collateral and not material to sale so no fraud had been committed; distinction between
material and collateral can be a bit difficult to discern
o Strathern v Fogal: father and son told tenants that unless they made payments son
wouldn’t bring tenancy agreement and would instead transfer agreement to other people;
court said these lies were not material to relevant bargain reached with tenants; court
here was influenced by land lord being lawfully entitled to receiving these payments
o Richards v HM Adv: accused had allegedly induced owner of mansion into selling this
property to him bc he falsely claimed that he just wanted to live there – he’d leave the
mansion as it was; court said this was material to matter
o To bring about a practical result
 McKenzie v HM Adv 1988 SLT 487: court was dealing w attempt at fraud involving
trying to get solicitor to raise particular legal action; involved fishing company and
trying to raise action against fisheries; person induced to act was solicitor’s firm; if
that had happened and it was successful, fishery would’ve lost money and accused
wouldn’t have gained money but relevant practical result was raising in action of
itself; victims of that misrepresentation (solicitors) wouldn’t stand to lose anything;
so that was case that signalled move away that person induced to act must suffer
some kind of economic loss
 Adcock v Archibald 1925 JC 58: not only does there not have to be economic loss
there doesn’t even have to be gained on part of accused; coal-mining case; coal
miner here had allegedly claimed that one of his fellow workers’ piles of coal was
one of HIS pile of coal; reason he did this was bc he was trying to get bonus; but
other worker’s pile wasn’t big enough to get that bonus; so all this lying brought abt
was false impression of who had dug up how much coal; no one stood to lose/gain
anything but it was held to be fraud; so basically any kind of practical result induced
by way of false pretence could amount to fraud
 Mather v HM Adv (1914) 7 Adam 525): false pretences themselves have to be
means of bringing about practical result; accused used bad cheque to purchase
 cattle – lie was that he had enough money to pay from his account; court said
although hhe did tell lie that lie wasn’t means through which delivery of cattle had
occurred bc it happened before cheque was handed over;
o Mens rea: knowledge of falsity of representation and intention to bring about practical
result
 (Mackenzie v Skeen 1971 JC 43): accused was careless in weighing out what he
was selling (animal internal organs – offo); but couldn’t be shown to have intended
to deceive purchaser; he as just careless
 reset
o Possession (doesn’t matter how possession was acquired) or being ‘privy to the retention’
of stolen goods (also fruits of embezzlement and fraud (Criminal Law (Consolidation)
(Scotland) Act 1995, s51))
o Mutually exclusive with theft (Druce v Friel 1994 SCCR 432)
o Actus reus: possession not necessary (HM Adv v Browne (1903) 6 F (J) 24; McNeil v HM
Adv 1968 JC 29)
o Mens rea: knowledge that property ‘stolen’ and intention to keep it from the owner (Latta
v Herron (1967) SCCR Supp 18; Forbes v HM Adv 1995 SLT 627)
o bc mens rea is hard to prove some rules have been made
 wilful blindness: someone can be convicted of reset when circumstances of their
receiving goods are such that average person would know they were dishonestly
acquired
 Latta v Herron: solicitor was weapons collector; bought 2 guns from one of
his clients in middle of night; claimed he didn’t know guns were stolen; court
said this can only be true if u wilfully blinded urself to fact that these were
stolen goods
 primitive circumstances can be used to prove knowledge
 Forbes: accused claimed not to know that v large parcel containing valuable
painting was stolen; circumstances of finding of this property in his car were
so incriminating that they inferred that he must have known this was
dishonestly acquired
 malicious mischief: destroying/damaging of property that belongs to another person
o Actus reus: damaging or destroying property belonging to another
o Mens rea: intention or recklessness
 Ward v Robertson 1938 JC 32; court said it isn’t necessary to show that accused
had deliberate intention to damage property of someone else; it was enough that
he deliberately disregarded rights of owner
 Clark v Syme 1957 JC 1: there were various warnings that accused would shoot
sheep on his land; he said he thought he had right to protect his land; court held
this was irrelevant
o Extension to patrimonial (economic) loss
 HM Adv v Wilson 1984 SLT 117: accused pressed emergency stop button on
power station which caused generator to stop and led to loss of 147 000 pounds
though it didn’t destroy any property; court said this can constitute malicious
mischief
 Bett v Hamilton 1998 JC 1: accused had moved bank security camera; argument
was that this meant that money was wasted on camera bc not filming proper spot;
court held there was no patrimonial loss
o malicious mischief could apply to incorporeal property – bc of actions of accused
 vandalism: basically statutory version of malicious mischief
o Criminal Law (Consolidation) (Scotland) Act 1995 s 52(1): “[A]ny person who, without
reasonable excuse, wilfully or recklessly destroys or damages any property belonging to
another shall be guilty of the offence of vandalism”
o How is this different from malicious mischief? (Black v Allan 1985 SCCR 11; patrimonial
loss;
o MacDougall v Ho 1985 SCCR 199: shopkeeper smashed windows of taxi bc he thought
it was used by people whod stolen from his shop; court said this was reasonable excuse
– it was dark, middle of night, spur of the moment; John v Donnelly 1999 SCCR 802;
Procurator Fiscal, Peterhead v Elrick (Lyn) (No. 2) 2017 GWD 18-285)
o she thought that having these kinds of weapons went against humanitarian law; court said
that wasn’t valid reasonable excuse
 fireraising – setting fire to another person’s property
o used to be distinction between wilful fire-raising and culpable and recksls fire-raising
which turned on property they were setting on fire
 wilful – woods, etc.
 culpable and reckless – other kinds of property
o Leading case: Byrne v HM Adv 2000 JC 155 – said that these terms should be used to
show difference in mens rea
o Wilful fire-raising (mens rea of intention; Byrne (above))
o Culpable and reckless fire-raising (mens rea of recklessness; Carr v HM Adv 1995 SLT
800; Thomson v HM Adv 1995 SLT 827)

Lecture 18

 general defences that apply to almost every crime – exclude criminal liability even when accused
has committed criminal offence
o self-defence
o necessity
o coercion
o automatism
o mental disorder
 sometimes people deny defence component – not committing offence at all, not having mens
rea, etc.
 how defences work
o accused bears initial, evidential burden – must raise some evidence to suggest defence
does apply
o once defence is introduced, prosecution must disprove it beyond reasonable doubt
o exceptions: mental disorder and diminished responsibility [for these ones accused must
prove on balance of probability – lower standard]
o some authors will distinguish/classify/categorise different defences as being
justifications/excuses/denials of responsibility – in practice these aren’t massively
important but it’s important to have awareness of them
 difference between them – justification type defence means yes crime has been
committed but accused wasn’t wrong in committing crime; excuse defences –
accused committed crime and it was wrong but accused should not be blamed for
crime [it’s abt culpability – specific to individual that is accused, not act committed]
  result is acquittal either way though there are some practical differences – if
someone is justified in their conduct it’s open for others to intervene/assist them so
if u see someone defending themse
 lves and u help them u r also going to be exempt from liability; if it’s excuse defence,
that is specific to individual actor so it is only that actor who is excused and not
liable; third party will not be exempt from liability if they go in and assist in relevant
crime that’s happening
 denials – when defence says there’s sth abt this kind of person which means they
shouldn’t even be answerable for having committed crime, e.g. person is too young
to be regarded as criminally responsible
 self-defence
o Use of force against aggressors in defence of oneself or others
o 2015 case [in handout]: self-defence will not be available to statutory breach of peace
(s38 of Criminal Licensing Scotland) but that crime has built-in defence of reasonableness
o Criteria set out in HM Adv v Doherty 1954 JC 1: accused was attacked by man with
hammer but there was open door behind him leading out to yard [there was some
reasonable means of escape available to him; instead he stabbed and killed his attacker]
 accused must have used relevant force to prevent imminent danger to life or limb
of accused or third party – threat must be v grave, of possible death or serious
injury; threat must also be imposed in the moment – must be facing accused at
that moment
 Necessity of response (i.e. accused must not have reasonable opportunity to
escape or retreat from threat (McBrearty v HM Adv 1999 SLT 1333: man was
chased by opponent; caught him on shoulder and in response he inflicted fatal
injury; trial judge had forgotten to tell jury that any escape option had to be
reasonable for defence not to apply; this didn’t actually make that much of a
difference but court held that it was important for jury to be hold that this opportunity
to escape had to be reasonable; if accused was faced with equal or worse danger
in trying to escape he is not obligated to take it)) – must be REASONABLE –
 standard ground defence – allows people to face down aggressors with no
duty to retreat – different rationale to defence: it’s more abt honour
 Response must be proportionate (McCluskey v HM Adv 1959 JC 39; Fenning v
HM Adv 1985 SLT 540; Moore v MacDougall 1989 SCCR 659)
 might make a difference in where self-defence is taking place – in England
and Wales if u’ve decided that u encounter threats to urself in ur home, ur
allowed to ues disproportionate force in repelling that threat whereas force
must be disproportionate anywhere else
 types of injuries inflicted, methods of inflicting injury – e.g. a punch vs a
stabbing by a knife
 Doherty said this weighing up won’t be done too closely bc u have to
recognise that person who commits this crime is facing v fraught situation –
they’re acting in heat of moment; not nuanced balancing up exercise but we
are trying to avoid situs where disproportionate force is used
 McCluskey: accused tried to claim that threat to his virtue – posed allegedly
by another man attempting to commit psodomy upon him – should allow him
self-defence; this was not allowed here
 cruel excess – when will force used in defence of someone be considered
to satisfy this definition of cruel excess?
 o moore: accused was using retractable/collapsible scissors to stab
someone in response to kicks/punches; court suggested that when u
use blade of some kind in response to injuries that are inflicted
through punches/kicks that is disproportionate and described as
“cruel excess”
o Mistaken self-defence is possible but only if mistake reasonable (Owens v HM Adv 1946
JC 119; Lieser v HM Adv 2008 SLT 866)
 Owens: established mistaken self-defence is possible but only if mistake
reasonable
 Drury: established wicked intention definition; cast doubt on issue bc does this
mean that provocation operates at level of mens rea; if it did this would raise
possibility that genuine mistakes could relieve liability
 Lieser: clarified/emphasised that actually to operate as defence to alleviate liability
mistakes must be reasonable
 coercion and necessity
o Accused compelled to commit a crime because of a threat
o Coercion = threat made by another person – e.g. if someone is threatened in some way
and told unless u commit robbery I’m going to do sth to u/someone u love; so crime is
committed against person who is robbed [innocent third party]; there is no aggressor ur
committing crime against
o Necessity = threat from circumstances – e.g. ur rock-climbing; ur tied to another person;
sth goes wrong; if u cut that cord u’ll be able to survive and that person will die; other
person isn’t posing threat to u but circumstances ur in mean that that individual is indirectly
posing threat to u
o Unlike self-defence, coercion and necessity apply to offences committed against innocent
3rd parties
 coercion
o Accused commits offence because of coercion by threats
o Requirements (Thomson v HM Adv 1983 JC 69)
 Imminent danger of death or serious injury to accused or third party – bc if ur being
threatened by someone and it is of future harm u should get help from police; u
shouldn’t be taking law in ur hands in that way – trying to restrict ambit of this
defence
 Accused’s will must have been overcome by threats – it has to be threat that leads
accused to commit crime; there must be some causal connection between threat
and crime
 Objective test: ‘such threats as would overcome the resolution of an ordinarily
constituted person of the same age and sex of the accused’ (Cochrane v HM Adv
2001 SCCR 655: accused had low IQ and described as unusually
susceptible/complaint to go along w what people would say to them – that part of
accused’s characteristics were held by court not to be relevant but age and sex
were)
 No defence if voluntarily exposed oneself to risk of coercion (cf R v Hasan [2005]
2 AC 467), e.g. someone who voluntarily joins gang where they’ll likely be exposed
to pressure to commit crimes – case established that if it’s reasonably foreseeable
that there would be risk of coercion even if they didn’t see it there is no defence
 necessity
o Similar to coercion but threats are from circumstances
 o First recognised in Moss v Howdle 1997 JC 123[: accused was driving w passenger;
passenger let out cry; accused thought passenger was ill and drove v fast towards nearest
service station and was convicted of speeding offence; this was when court said if ur
facing threat of kind described u may have defence – called it coercion by circumstances];
developed in Lord Advocate's Reference (No 1 of 2000) 2001 JC 143
o Defence requirements:
 Imminent threat of death or serious injury to the accused or third party based on
reasonable belief as to circumstances (Lord Advocate's Reference (No 1 of 2001))
 Threat must have constrained accused to break law (Moss v Howdle) – this must
be reason why they acted and why it’s necessary that they did it to relieve threat;
there can’t be another option available that accused just didn’t take
 Threat must have ‘dominated the mind’ of accused (Dawson v Dickson 1999 JC
315: fireman was on duty w off-duty colleague who was drinking; on-duty fire officer
was called to respond to emergency situation; at scene of that accident off-duty
officer who was drunk decided to move fire engine in order that ambulance could
get access to injured person; so he was driving while over limit; court rejected his
claim bc they didn’t believe drunk fire officer was contemplating threat faced and
wasn’t balancing threat he was trying to avert and committing crime)
 Objective test: sober person of reasonable firmness, sharing characteristics of
accused (Lord Advocate's Reference (No 1 of 2001)) – don’t know which
characteristics exactly
 Act must have reasonable prospect of removing danger (Lord Advocate's
Reference (No 1 of 2001)) – so charges of malicious mischief where accused
damaged certain fences around navy base bc they claimed that holding nuclear
weapons was against international humanitarian law; for various reasons that
defence didn’t work, one of which was that there was no reasonable prospect that
this action would remove threat that they thought existed – did they actually think
damaging fences would remove nuclear missiles from navy base?
 coercion and necessity are generally held not to apply in cases of murder bc law is extremely
squeamish at prospect of choosing between innocent livesand saying one is more important than
the other
o Traditional common law suggests these defences do not apply to murder (R v Dudley &
Stephens (1884) 14 QBD 273): shipwreck case where there were 2 sailors and cabinboy;
they had no food for 20 days; they killed cabin boy and ate his flesh; they chose him bc
he had no children and fewer responsibilities than them; they were convicted of murder
and no defence was available to them
o Law should not allow people to choose between innocent lives
o But cf Re A (Conjoined Twins) [2001] WLR 480
o court had to decide in advance whether operation to separate conjoined twins should be
lawful – actions of doctor would satisfy murder as intentional act where they were virtually
certain operation would result in one twin’s death; but if operation didn’t happen both lives
were in jeopardy; one of judges conceived it as necessity and held it was lawful activity
but they were criticised on basis by saying that one life was more valuable than other;
court was v careful to say this was specific to cricumstnces, not talking abt necessity being
used as defence available for murder

Lecture 19

 automatism
o When the accused lacked conscious control over his or her acts because of some external
cause
o Leading case of Ross v HM Adv 1991 JC 210: Ross was charged with various offences
including assault (use of knife), attempted murder, breach of peace, assaulting police
officers; he’d been drinking lager and unknown to him someone had spiked his drink w
tamazipan and LSD; he was intoxicated at time; after 30min he began to scream, lunge
earound w knife, committed various offences; High Court held it woul d be unfair to convict
people like Ross who through no fault of their own don’t have mens rea; some people hv
argued this mens rea idea is not best way to understand this bc in strict liability offences
they don’t have mens rea; but automatism is available in strict liability – bc it’s abt not
having meaningful actus reus – it’s not voluntary ins ense that we would normally expect;
or this is free-standing system that operates irrespective of proving mens rea/actus reus
 Total alienation of reason amounting to complete absence of self-control
 Cardle v Mulrainey 1992 SLT 1152: accused was charged w unlawfully
taking and driving motor vehicle fast without insurance; his drink was spiked
with amphetamines; he tried to argue that like Ross he shouldn’t be held
liable for his actions; unlike Ross though accused had retained some
reasoning powers that allowed him to understand both what he was doing
and that it was wrong; basis of defence was that even though he knew what
he was doing and that it was wrong his intoxication as such that he was
unable to follow through on that reasoning – he couldn’t stop himself from
doing what he did; on appeal court said when accused knows what they’re
doing and that it’s wrong they will not be deemed to be suffering from total
alienation of reason; so it’s v cognitive test – it’s abt cognitive failings rather
than volitional capacity – it’s abt knowledge of nature and wrongfulness of
acts
 HM Adv v Sharp 1927 JC 66): Scottish approach is that court regards
wrongdoing as MORAL wrongdoing; accused was unable to support his
family, struggling financially and was charged w murder of 2 of his children;
court said accused wasn’t fit to stand trial; he was suffering from alienation
of reason; but here he knew what he was doing + it was against law but
fuller picture of what he was thinking when he did these crimes suggested
his reasoning had been warped such that he had lost capacity to distinguish
right from wrong;
 Caused by an external factor (difficulties: internal/external boundary;
 MacLeod v Mathieson 1993 SCCR 488 (Sh Ct): court accepted that
hypglecemia diabetes could constitute external factor
 Finegan v Heywood 2000 JC 444: accused had been drinking to celebrate
birth of his child, had 6 pints of beer, came home, fell asleep, entered
parasomnia state – was sleepwalking; took friends keys and went out and
committed motor vehicle offences; court discussed whether parasomnia
should be internal/external factor; sheriff held it was internal factor; but on
appeal court said this could be good basis for automatism plea; in this case
defence wasn’t available bc he failed on some of other criteria [drinking was
self-induced] but court said parasomnia (sleepwalking) could be considered
external factor
 external: drugs, alcohols, concussions, etc.
  internal: brain tumours, ecolepsy, heart conditions – unable to establish
grounds for mental disorders either; so these internal factors aren’t; so
historically approach has been to convict individual but not punish them
 line between internal/external – not always easy to decide which one sth is,
e.g. diabetes – high/low blood sugar levels could possibly be regarded as
internal as well as external
 total alienation of reason must not be self-induced
 Brennan v HM Adv 1997 JC 38: dealt with old common law insanity but has
been accepted via Ross as applying in respect of automatism; man had
voluntarily consumed 20-5 pints of beer, sherry and LSD; he ended up
stabbing and killing his father; court said voluntarily self-intoxication can’t
give defence of automatism
 Finegan v Heywood 2000 JC 444: voluntary consumption of prescribed
drugs will be treated differently; self-induced criteria won’t apply here as long
as effect on accused wasn’t foreseeable – e.g. he took them before and had
adverse reaction and then took them again
 Accused must not have been bound to foresee total alienation of reason
 Ebsworth v HM Adv 1992 SLT 1161: accused had broken his leg and to deal
w pain he had been given morphine and paracetamol in huge quantities (50
paracetamol and 10 morphine -which he wasn’t told to do) and went on to
commit assault; court said what u did was incredibly reckless and u
should’ve foreseen that taking that amount of drugs in that combo w/o
medical advice to guide u in doing so might have had negative
consequences; it wasn’t unforeseeable that he would have adverse reaction
 Finegan v Heywood 2000 JC 444: he knew he was prone to parasomnia
when he’d been drinking alcohol
 mental disorder
o Reformed in line with SLC’s Report on Insanity and Diminished Responsibility (Scot Law
Com no 195, 2004)
o Criminal Justice and Licensing (Scotland) Act 2010 Part 7 – abolished common law of
insanity and replaced with statutory provisions, inserted in to Criminal Procedure
(Scotland) Act 1995; bc “insanity” term was stigmatising
 Set out mental disorder defence , when accused is unfit to stand trial and provisions
relating to proof and disposals
o A person is not criminally responsible for conduct constituting offence, and is to be
acquitted of offence, if person was at time of conduct unable by reason of mental disorder
to appreciate nature or wrongfulness of conduct (s 51A(1) 1995 Act)
o Mental disorder = mental illness, personality disorder or learning disability (s307 1995 Act
& s328 Mental Health (Care and Treatment) (S) Act 2003 NB excludes drug or alcohol
dependency)
 also doesn’t apply to psychopathy or anti-social personality disorder
o ‘Appreciation’ concept is intended to be wider than mere knowledge – supposed to
capture more than just knowledge; defence might apply when someone knows they’re
engaging in certain kinds of physical actions but bc of their mental disorder they fail to
appreciate nature/wrongfulness of conduct
 e.g. accused was suffering from schizophrenia, shoots someone who they think is
danger to them – full understanding of their actions is distorted by their mental
disorder; nature of act is not what accused is appreciating fully
  e.g. mother suffering from post-partum depression suffocates them bc she thinks
it’s necessary to protect them from her parenting
o Mackay v HM Adv [2017] HCJAC 44: new test for mental disorder defence was discussed
in this case; involved soldier serving in Afghanistan; was accused of various statutory
offences including statutory breach of peace crime; he plead mental disorder defence,
saying he had various mental disorders which was not disputed; psychiatrists agreed that
he had PTSD, delusional disorder; one of psychiatrists believed he was psychotic too; it
was also accepted that he appreciated nature of his conduct – what was in doubt was
whether he appreciated wrongfulness of his conduct; there was doubt abt this bc before
he went out to commit these crimes he drank whole bottle of vodka and phoned police on
his way to crime, referring to conduct on course of phone call as being murderous crime
– he wanted to be caught – he referred to it as mass murder – so maybe he did appreciate
wrongfulness of his crime – but psychiatrists were v torn abt this; didn’t come toa
greement; he was eventually convicted; appealed saying that trial judge was unaware that
law had changed substantively to new test formulated – earlier common law test was total
alienation of reason and appreciation test was wider than knowledge; old defence was
narrower than one we had now; judge didn’t seem to appreciate that when giving his
directions; jury said defence would fail if accused was able to any extent be able to
appreciate his conduct and also referred in his direction to awareness of wrongfulness;
he needed to be unable to appreciate both conduct and wrongfulness though legislation
said it wasn’t conjunctive; but court of appeal thought they weren’t so significant to amount
to miscarriage of justice but they did in course of ruling say there were errors in jury
manual; made clear what parameters of defence are supposed to be – appreciation
should be wide and these are not conjunctive components – emphasised that we should
read legislation as it was written but this question of appreciation and wrongfulness are to
be determined as ordinary meaning of words
 "A person is not to be found criminally responsible if, at the time, and because of a
mental disorder, he was unable to appreciate the nature or wrongfulness of his
conduct. That is the statutory test. It has two parts. First, there is the requirement
that the person was suffering from a mental disorder at the time. You will have to
consider all the evidence, including that of the psychiatrists on that matter. If you
are satisfied that he was suffering from such a disorder, you require to consider,
secondly, whether, because of that disorder he was unable to appreciate the nature
or wrongfulness of his actions. The words of the statutory test speak for
themselves. However, it may be of assistance if I explain that the phrase
'appreciate the nature or wrongfulness of his conduct' is not limited to a lack of
knowledge of these matters. It can also cover an inability to conduct oneself in
accordance with a rational and normal understanding of them. Bear in mind that
this lack of reasoning must be caused by the mental disorder, and not some other
factor, such as the voluntary consumption of an excessive amount of alcohol.
 Personal responsibility for our actions is the norm. This is because we are all
presumed to enjoy functioning reasoning faculties and a normal understanding of
the world around us and how we should behave. But if the accused's conduct is
attributable to a mental disorder which deprived him of that kind of appreciation of
the nature of what he did, or of its wrongfulness, or indeed both, that presumption
is displaced, and our law says that he is not to be convicted of an offence arising
out of that conduct."
 o No defence if mental disorder ‘consists only of a personality disorder which is
characterised solely or principally by abnormally aggressive or seriously irresponsible
conduct’ (s 51A(2) 1995 Act) i.e. antisocial personality disorder
 but if they have other personality disorders they may have ground for defence –
having above mentioned disorders doesn’t exclude them from this defence; just
can’t form BASIS for this defence
o Must be proved by accused on balance of probabilities (s 51A(4) 1995 Act) – so standard
is lower
o If successfully applied, this defence will result in full acquittal but court has powers of
disposal – court may still issue disposals e.g. treatment or supervision orders or detention
in hospital (s 57 1995 Act).
o abnormalities of mind can apply to mental disorders so there is some overlap
o key differences – diminished responsibility applies only to murder and is partial defence;
mental disorder defences apply to all crimes and is full defence; drug and alcohol is
excluded from mental disorder defence but not DR;
 unfitness for trial (s53F 195 Act) – if they’re unfit for trial at time of trial their mental unsoundness
can bar them from standing trial
o A person is unfit for trial if…that the person is incapable, by reason of a mental or physical
condition, of participating effectively in a trial
o Must be proved on balance of probabilities
o Can be raised by prosecution, court or accused
o Court has regard to:
 Ability of the accused to: understand the nature of the charge; understand the
requirement to tender a plea to the charge and the effect of such a plea; understand
the purpose of, and follow the course of, the trial; understand the evidence that
may be given against him / her; instruct and otherwise communicate with his / her
legal representative
 Any other factor the court considers relevant
 intoxication
o Involuntary intoxication might fall within the defence of automatism
o Voluntary intoxication is no defence in Scots law
o “Nothing is better established in our law than that intoxication, so far from being an
alleviation, is an aggravation of a criminal charge; and indeed such is the tendency to this
brutalizing vice, among the lower orders in this country, that if it were sustained as a
defence, three-fourths of the whole crimes in the country would go unpunished; for the
slightest experience must be sufficient to convince every one, that almost every crime that
is committed, is directly or indirectly connected with whisky. For these reasons, our law
utterly disowns any such defence…” (Alison, Principles of the Criminal Law of Scotland
(1832))
o Brennan v HM Adv 1997 JC 38
 Evidence of voluntary intoxication cannot be used to deny mens rea
 In offences of recklessness, voluntary intoxication may be seen as reckless in itself

Lecture 20

 auxiliary liability
 2 versions
 inchoate offences (incomplete crimes – person doesn’t commit full crime): incitement,
conspiracy, attempts
 art and part liability: participation in commission of crime
 inchoate offences
o underlying offence hasn’t been complete
o e.g. woman wants to kill her husband so she stabs him in back but he doesn’t die – she
is aiming to commit murder but doesn’t successfully accomplish murder – murder is
incomplete but her attempt to commit murder is complete
o Offences involving incomplete commission of crimes
o Incitement: inciting a person to commit a crime
o Conspiracy: conspiring to commit a crime
o Attempt: attempting to commit a crime
o bc there’s underlying crime, it doesn’t make sense to say that someone is guilty of
incitement/conspiracy. it has to be incitement/conspiracy to do some crime -they’re not
crimes in themselves; they’re ways in getting towards crime
 incitement
o Baxter v HM Adv 1998 JC 219: accused was charged w inciting man to commit murder
on basis of conversation between accused and other man abt potential methods that
could be used, fee to be paid; but there was no actual explicit instruction to kill; accused
argued he never actually said it so how can u prove that he intended crime be committed;
court said jury must be satisfied that there is serious intention that crime be carried out to
say it is incitement;
o Encouraging / requesting a person to commit a crime
o Instruction to commit the crime not required
o Must be serious intention that crime will be committed
o If the offence is committed then would more likely be art and part guilt (possible to charge
incitement and the completed offence); if not enough evidence for art and part guilt –
conspiracy
o only can be charged against someone who’s encouraged someone to commit crime
 conspiracy
o An agreement between two or more persons to commit a crime (i.e. to do something which
would be a crime if attempted / achieved by an individual (Maxwell and Others v HM Adv
1980 JC 40))
o criminal purpose: it must be crime for someone on their own to commit
o Essential elements = an agreement + a criminal purpose
o u need to show that there is agreement – u don’t need to know that steps have been taken
to get towards fulfilling agreement; in practice this is shown though to prove that
agreement existed
o No need for express agreement; can be inferred from actions (Coleman v HM Adv 1999
SCCR 87: conspiring to assault group of men; they got weapons and made their way to
direction of house of relevant victims; before they went out group agreed explicitly that
they would assault intended victim but one of appellants wasn’t there at time of this
agreement; he was there beforehand but went out of room to do sth and came back after
group was on its way to carry out its assault; appellant grabbed baton and tagged along
w rest of group; while he was on his way w rest of group he also verbally abused various
others in group who were nearby + not joining in; so here court said that even tho he
wasn’t around during explicit agreement his agreement w plan could be inferred through
his actions; court emphasised that it’s not enough to be around others that are conspiring
tho
 o Acts done in pursuance of conspiracy are often crimes in themselves – potential confusion
where charged together ; questions can arise abt what verdicts are available to juries
when they’re bound tgt –
 HM Adv v Wilson, Latta and Rooney unreported (1968): question for court was
could jury acquit accused of alleged conspiracy but nevertheless convict him of
crimes allegedly done in pursuance of conspiracies? court said yes – these things
are separable – they can be considered free-standing
 if alleged crime done in furtherance of conspiracy is only thing that makes
agreement crime -
 Sayers HM Adv 1981 SCCR 312: accused was said to have conspired to further
purpose of NI group by criminal means (unlawfully acquiring firearms, explosives,
soliciting firearms to be used in commission of acts of terrorism); problem was that
each of these criminal means referred to was deleted from indictment/accused was
acquitted of them; without any of those crimes, actual agreement was not any more
a crime; so if separate crimes that are used to further conspiracy are only things
that make conspiracy itself criminal, u can’t convict conspiracy w/o convicting other
crimes; bc to be liable for conspiracy it has to be to do sth that would be crime if
one person did it by themselves
o Requirement for more than one party (Howitt v HM Adv 2000 JC 284)
 u need 2 or more people for there to be agreement
 if for some reason only one of alleged conspirators ends up being charged/standing
trial
 e.g. 2 people involved; 1 is under age of criminal responsibility/doesn’t stand trial
bc of lack of capacity (e.g. mental disorder) or if they’re both charged but one is
acquitted? what does it mean for other conspirator?
 HOwitt: 2 accused were charged w conspiring to set fire to house and murder its
occupants; 2 men were tried separately; at first trial accused pled guilty to
conspiring to set fire to house but only after charge was amended to delete
reference to murdering inhabitants; at second trial accused stood trial and was
found guilty of full conspiracy charge; he appealed against conviction saying it’s
incompetent to convict him of this conspiracy to murder when his co-conspirator
had not been convicted of that; first accused pled guilty but only after reference to
murder was taken away; court said in determining conviction of second accused
(appellant) didn’t hinge on what happened to first accused as it was irrelevant bc
facts + evidence as they play out in any given trial will be different; so it’s not
logically inconsistent; trials are abt legal guilt as opposed to factual guilt; this
doesn’t pose any worries abt if in fact in reality they were conspirators; each trial
proceeds on its own evidence and jury comes at its own conclusion
 attempts
o Trying, unsuccessfully, to commit a crime (Criminal Procedure (Scotland) Act 1995, s294)
 attempt to commit crime is crime in itself;
o what constitutes attempt is covered by common law – reason for punishing people is bc
it might just be luck that full attempt is not committed; by attempting to commit crime
accused has shown themselves to be as dangerous as someone who commits full
offence; and only reason they haven’t committed full crime is bc material harm hasn’t
materialised
o how far does someone have to go to be guilty of attempt?
o HM Adv v Camerons 1911 SC (J) 110 (preparation to perpetration)
  generally: to be guilty of attempt someone must have advanced from preparing to
commit crime to perpetrating it
 husband and wife pretended that wife’s pearl necklace had been stolen to try de-
fraud their insurers; underlying crime is fraud; they told police and insurers
necklace had been stolen but didn’t make fraudulence claim; so here it was held
that these actions – of telling police and insurers – was enough to constitute moving
from preparing to commit crime to perpetrating it
o Guthrie v Friel 1992 SCCR 932
 accused was charged w attempting to drive his car while over legal intoxication
limit; he was found in his car in driver’s seat asleep at 3am w his seatbelt on, engine
running, lights on; convicted; he appealed against that, saying he hadn’t gone far
enough along path of driving car for it to be attempt; court accepted that – although
he started engine, turned lights on, etc. all that indicated was that he was preparing
to drive – he hadn’t moved into perpetration stage of driving
o Morton v Henderson 1956 JC 55
o line will be crossed when accused carries out act whose consequences couldn’t
be withdrawn – suggests there is blurry line w test bc one of them that’s referred
to in Mackenzies case
o HM Adv v Mackenzies 1913 SC (J) 107 (irrevocable act): involves chemical stealing; court
said test was whether accused had committed irrevocable act – act that can’t be undone
– which stands quite similar to Morton v Henderson
o Samuel Tumbleson (1863) 4 Irvine 426: doing act thta places outcome of action out of the
accused’s control
 man had given bowl of poisoned oatmeal to one of his servants to give to his wife;
court said this could constitute attempted murder bc once he handed over bowl
outcome was out of his control
o HM Adv v Baxter (1908) 5 Adam 609 (opportunity to repent): if there’s no opportunity to
repent it’s seen as attempt;
o kind of like towards end of perpetrating stage -
o Mens rea = same as full offence
 Cawthorne v HM Adv 1968 JC 32: accused was held to be guilty of attempted
murder; he fired shots into room where people were barricaded; murder at time
could be committed through wicked recklessness which didn’t require any intention
whatsoever
 Strachan v HM Adv 1994 SCCR 341
 impossibility in inchoate offences
o sth abt circumstances means it was impossible for full crime to occur, e.g. someone tries
to pickpocket someone but there’s nothing in their pocket
o Defence to inchoate liability that it was impossible to commit the complete offence?
o Attempts: Docherty v Brown 1996 SLT 325
 impossibility is generally not defence to inchoate liability – impossibility of
committing full crime doesn’t preclude liability for attempting to commit it
 accused got hold of tablets that he believed contained class A drugs and intended
to supply others with them; in reality these tablets did not contain class A drugs;
court said fact that pills were innocuous didn’t mean that accused should be let off;
he should still be guilty of attempting to possess w intent to supply
 if he didn’t believe that tho there would be no attempt
  if there’s sometimes as they called it “absurd” reason that crime couldn’t be
committed e.g. accused stabbed someone that’s already dead then they can’t be
guilty of attempt – bc there’s no real risk of harm to anyone here
 what accused thought he was doing was crime; if someone mistakenly believes it’s
crime to do sth when in fact it’s totally legal, their belief that it’s crime won’t make
them guilty for attempting to commit crime
 e.g. man thinks it’s crime to have sex w his crime; fact that he believes he’s
commiting crime doesn’t make him guilty of committing crime; so his belief is not
enough to transform his actions into crime
o Conspiracy: Maxwell and Others v HM Adv 1980 JC 40
 accused allegedly conspired to bribe members of licensing board to approve
license; but people they intended to bribe were no longer in charge of issuing
license; but that fact – impossibility of final crime being successful – didn’t mean
that they couldn’t be guilty of conspiring to commit crime
 impossibility doesn’t preclude attempt liability; same probably applies to incitement tho we have
no case law on that

Lecture 21

 Art and Part Liability

 Derivative liability – one person can be held liable for actions of another person – rationale:
sometimes when there’s more than one person involved in criminal activity we don’t always know
who exactly carried out fatal blow – doctrine aims to make sure that there can be liability
attributed even if we don’t know exactly who dealt fatal blow
 When a group of people share a common purpose to commit an offence, each member of the
group may be held liable for that complete offence, regardless of their individual contribution
 HM Adv v Lappen 1956 SLT 109
 NB – liability is for the relevant offence (not a separate, inchoate offence
 common purpose – if u don’t have this, each individual will be assessed individually – HM Adv v
Welsh and McLachlan: 2 men broke into older woman’s home, stole some of her belongings and
murdered her; from evidence it wasn’t clear which of these men carried out fatal act - problem
from prosecution’s pov was that there was no evidence that they shared common purpose – so
each man’s liability had to be assessed separately - but bc there was noe vdience to show which
man delivered fatal blow both of them were acquitted – shows real point of art and part liability
 Hm Adv v Johnstone and Stewart: 2 women were charged w causing abortion; one of accused
had put pregnant woman in touch w other accused who carried out activity that led to abortion;
when these 2 women were prosecuted, first of them said she didn’t know second accused, didn’t
receive any fee for putting them in touch, she couldn’t be held art and part liable for actual
accused’s actions (one who carried out abortion); judge said if u believe these things u can’t hold
first accused art and part liable for abortion carried out by second accused
 Explicit agreement unnecessary for there to be common purpose
 Spontaneous concert often enough, e.g.
o Gay v HM Adv 2016 SCCR 87: sexual assault of young child by another child that was
allegedly instigated by third child; allegation was that instigating child had instructed first
one to do so; problem was that conviction of this instigating child was dependent on
deletion of reference of charge of having instructed – was convicted art and prat for sexual
assault but in doing so jury deleted reference to instruction given; bc of that there was
appeal against his conviction and court said that this is example of spontaneous concert
 (coming together/common purpose); jury was perfectly able and allowed to hold that there
was common purpose even tho there was no instruction – bc there was evidence of his
active participation
 contribution to common purpose
o All parties who have common purpose are guilty of the offence, regardless of contribution
o Some contribution is required though - simply failing to intervene in crime when ur around
is not enough to make u art and part liable for crime
 (George Kerr (1872) 2 Coup 334; - man was nearby when various other men were
assaulting woman and didn’t do anything to intervene/call for assistance ; court
said this wasn’t enough to make him art and part liable
 Fee v HM Adv 2017 SLT 469) – maltreatment of child by his mother and her
pratner ; child died as a result ; murder conviction ; on appeal mother said she
hadn’t really been involved in carrying out any of acts that led to child dying ; court
said yes it’s iportant to show that this woman who’s art and prat liable for murder
has taken some active steps to facilitate this mistreatment of her child ; mere
knowledge that ti’s going on will not be enough to make her liable ; but evidence
sggested she had facilitated this bc she concealed injuries suffered by child,
consciously decided not to seek medical treatment, and these things were
conceived of by court as acts that facilitated enterprise- this conduct on her part
did more than Kerr’s conduct – she was facilitating crime
o Joining an offence partway through can make someone art and part liable for their
praticipation after joining
 McLaughlan v HM Adv 1991 SLT 660; - husband and wife were convicted of
assault of woman ; husband had instigated assault by jumping on deceased from
behind and rendering her unconscious ; when she came to she was aware of
husband and wife punching and kicking her ; wife appealed against this conviction
asying she shouldn’t be liable for any injuries that occurred bfeore she joined in ;
prosecution was unable to show that v serious injuries that led to death of victim
had happened after wife joined in ; so wife’s conviction for assault was quashed
 Kabalu v HM Adv 1999 SCCR 348 – before appellant turned up, deceased had
already been subject to severe injuries including kick to his head that eventually
killed him ; when appellant turned up he saw individuals inflicting these injuries ;
but none of them were as serious as head injuries that led to death ; so there was
no question that he was guilty of assault art and prat and individually ; but court
held he couldn’t be held liable for murder art and part bc he didn’t see serious injury
being inflicted – so it might be possible for someone to become liable for assault if
they see those things happening and u join in anyway – K just hadn’t seen them
inflicted
 if someone assists w crime that is already completed (e.g. assists clear-up), they
will not be art and part liable for crime
o Useful to distinguish between accessories and co-principals
 one or more participants plays v significant essential role (co-principals) and others
play less significant peripheral role (accessories)
 co-participants: everyone is equally central to criminal activity
 this is important for when some are acquitted
 if principal offenders are acquitted, it might make sense to also acquit accessories;
but if u have situ where everyone is involved (they’re all co-participants), it won’t
really make any difference
  Young v HM Adv 1932 JC 63 – group of individuals were all charged w making
fraudulent allocation of shares; all of Young’s co-accused were v central in
company (directors, company secretary) – Young was far less connected (he was
company promoter – distributed flyers abt company which contained false info abt
allocationof shares) – at trial all of centrally connected people were acuquitted; only
he was convicted; he appealed saying this was unreasonable – since principals
were only ones who could’ve actually committed fraudulent allocationof shares
their acquittal meant it didn’t make sense to allow conviction of appellant to stand;
so his conviction was quashed and he was acquitted
 Capuano v HM Adv 1985 SLT 196: 3 young individuals were charged w assault;
they threw bricks at car carrying 2 people; big difference from Young was that all 3
of individuals were v actively involved; here 2 were acquitted; 1 appealed; court
distinguished that scenario from Young on basis that here in Capuano they were
all co-principals so it was fine to keep his conviction – their acquittals made no
difference to his liability
 going beyond common purpose/dissociating from common purpose – someone goes further than
agreed-upon plan and commits further crime
o Can parties to a common purpose be held art and part liable for conduct which goes
beyond the common purpose?
o test: Was the conduct foreseeable as liable to occur in the course of the joint venture?
o O'Connell v HM Adv 1987 SCCR 459: boys had armed themselves w wticks and set out
to assault another boy; one of group ended up using hammer that was being carried by
victim at time to kill victim; wasn’t clear which one it was; weapon was used which wasn’t
agreed upon in advance; court said if weapon used in killing was of broadly similar nature
to weapons that were agreed upon then they would all be art and part liable; lhere court
said sticks are substantially similar to hammers (both bludgeoning instruments) so all
liable for death
o McKinnon v HM Adv 2003 JC 29: appeal against conviction for assault and murder;
appellants along w 2 others had agreed to commit assault and robbery; they’d obtained
knives for purpose of carrying out robbery; in course of attempted robbery 2 victims were
injured and 1 was killed; unclear which member of group had inflited fatal wound;
appellants tried to argue against their conviction that in order to lawfully convict them of
this murder prosecution had to show that each of them had required mens rea for murder
– it wasn’t enough to show that they just knew that knives were gna be used in course of
crime; court said liability for consequences tht go beyond common purpose will be based
on what’s foreseeable as likely to happen – what’s objectively obvious outcome of
common purpose? here court said they had criminal purpose w obvious risk that life would
be taken
o objective test of foreseeability
o if u do know which of group inflicted fatal wound, uc an look at their actions/mental state
– their mens rea/actus reus will tell u what kind of homicide ur dealing w
o if u don’t know, u just have to look at circumstances and make assessment as to whether
it’s likely to be considered culpable homicide/murder – BUT all of group will be liable for
same crime – it’s not possible to say when u have common purpose and participation (art
and prat liability) that one is guilty of culpable homicide and other of murder
o this doctrine means that someone can be given mandatory life sentence on basis of not
actuallycarrying out crime/not actually agreeing to it happening/not having subjectively
foreseen this risk
 o Jogee: joint enterprise similar doctrine to art and part liability was abolished in England
o bc doctrine had gone in wrong direction; said that for some kinds of situations where
common purpose was gone beyond, accessories will only be liable if they intended to
encourage/assist person who actually carried out crime – this case has theoretically
narrowed doctrine to point where to convict someone in this kind of way u have to show
they intended to assist perpetrator of crime
o foresight is seen sometimes as evidence of intent
o What effect does dissociation from the common purpose have?
 MacNeil v HM Adv 1986 SCCR 288: such person who changes their mind can be
held not liable ii they tell other members of group that they are withdrawing and
they have to try and discourage others from going ahead w crime – this has to
happen at stage where doing that WILL make difference
 so if activities have already progressed to perpetration dissociating from common
purpose will not alleviate criminal liability of that individual
 person can be art and part liable for statutory offences
o Common law principles of art and part liability apply to statutory offences (Criminal
Procedure (Scotland) Act 1995, s 293)
o Even if the offence can only be committed by certain categories of people
 (Vaughn v HM Adv 1979 SLT 49: man was convicted art and part liable for incest
even tho incest legislation said certain categories of people cant have sex and he
wasn’t aprt of this category; him being outside category didn’t make difference to
his liability
 ; Reid v HM Adv 1999 JC 54): legislation refers to male people living on earnings
of prostitute (pimps); Reid was woman; court said yes she could still be liable even
tho statute was confined to certain categories of offenders

Lecture 22

 1. Joe is stabbed by his ex-lover, Sam. Joe is taken to hospital where the doctor tells him that
he needs a blood transfusion, or else he will die. Due to his religious beliefs, Joe refuses the
transfusion, and the doctor does not complete the procedure. Two days later, Joe dies. Who
does the criminal law hold to have caused Joe’s death?
o a) Joe.
o b) Sam. – thin skull rule
o c) The doctor.
o d) All of the above.
 2. Choose the most accurate way of completing the following statement. A group of people are
liable art and part for an offence only if:
o a) They explicitly agreed to commit that offence together.
o b) They jointly committed the actus reus of that offence.
o c) They all witnessed the commission of that offence.
o d) They shared a common purpose to commit an offence.
 3. Which of the following situations does not fall within the circumstances in which sexual conduct
takes place without consent, under section 13 of the Sexual Offences (Scotland) Act 2009?
o a) At the time of the conduct, the complainer was incapable of consenting to it because
of the effect of alcohol.
o b) At the time of the conduct, the complainer was incapable of consenting to it because
of the effect of alcohol, but had earlier given consent when she was capable.
 o c) The complainer agreed to the conduct because the accused claimed falsely that he
was a former boyfriend of the complainer, whom she had not seen for a long time.
o d) The complainer agreed to the conduct because the accused claimed truthfully
that he was a former boyfriend of the complainer, whom she had not seen for a long
time.
 4. Which of the following cases held that voluntary intoxication is never a defence in Scots
criminal law?
o a) Ross v HM Advocate 1991 SCCR 823
o b) MacAngus v HM Advocate 2009 SLT 137
o c) Brennan v HM Advocate 1977 JC 78
o d) Lord Advocate's Reference (No 1 of 1994) 1995 SCCR 177
 5. Which of the following statements is false?
o a) An accused is entitled to the defence of provocation only if his or her reaction
was proportionate to the claimed provocation. – when provocation is on basis of
sexual infidelity, response for defence to apply has to be one of ordinary person
rather than proportionate response; Drury said that proportionality only applies to
physical provocation; if it’s infidelity response must be that of ordinary person for
defence to apply
o b) If A is provoked to kill B by B’s sexual infidelity towards A, then A might be entitled to
the defence of provocation.
o c) The defence of provocation is available only when the killing concerned was an
immediate reaction to the claimed provocation.
o d) An accused who is provoked to kill merely by being insulted will never be entitled to the
defence of provocation. – bc d is true
 6. Which of the following statements is true?
o a) Where a verdict is returned of “not guilty by reason of automatism”, an accused remains
liable to detention, supervision and/or enforced treatment.
o b) The defence of automatism applies only if the accused was unable, by reason of an
external factor, to control his or her conduct.
o c) If an accused should have foreseen his/her claimed alienation of reason, then
he/she will not be entitled to the defence of automatism.
o d) For the purposes of the law of automatism, intoxication never constitutes an alienation
of reason.
 7. Which of the following statements is true? a) The actus reus of assault is causing unlawful
injury to another
o a) The actus reus of assault is causing unlawful injury to another.
o b) If A intends only to cause fear or alarm to B, then A has not assaulted B.
o c) One can assault another person without either threatening or physically touching
that person.
o d) Assault can be committed either by intentionally or recklessly inflicting violence on
another person. [assault requires intention]
 8. Carrie is walking home one evening when she sees Dan running towards her. Dan has just
gone out for a run and does not pose any threat to Carrie. Carrie, however, forms the belief that
Dan intends to attack her. Carrie attacks Dan pre-emptively, knocking him to the ground. Is Carrie
entitled to the defence of self-defence?
o a) No, because Dan did not actually pose any threat to her.
o b) No, because she did not reasonably believe that Dan was threatening to kill her.
 o c) Perhaps, but only if she reasonably believed that she had no adequate
opportunity to escape or retreat.
o d) Perhaps, but only if her will was overborne by the threat that she believed Dan to pose.
 9. Bill inflicts pain and injury on Ben for the purposes of Ben’s sexual gratification. Which one of
the following statements best describes Bill’s potential liability for assaulting Ben?
o a) Whether Bill has a defence for assaulting Ben depends on whether allowing Ben to
consent to Bill’s actions would be in the public interest. – this is English R v Brown
approach, not Scottish approach
o b) Ben’s consent is a defence to any charge that Bill might face, but only if Bill has not
caused serious injury to Ben. – line is drawn already
o c) If Bill’s actions showed indifference to the possible consequences for Ben, then Bill is
guilty of assaulting Ben.
o d) Ben’s consent is no defence to Bill’s actions, but Bill will not be liable for assault
if he did not intend to injure Ben.
 10. Allan is arrested on suspicion of possessing heroin. A police officer is about to search Allan
and asks Allan whether he has any sharp objects on him. Allan replies that he does not. The
officer searches Allan and finds an unguarded syringe in his pocket. Which one of the following
statements is true?
o a) Allan might have committed reckless endangerment. This depends on whether the
officer was injured in finding the syringe. – reckless endangerment doesn’t require injury
to result; it just has to be endangering of others
o b) If intoxication caused Allan to forget that the syringe was in his pocket, then
Allan has committed reckless endangerment.
o c) Allan has committed reckless endangerment, but only if the prosecution establishes
that he had a duty to disclose the existence of the syringe to the officer. – only applies to
omissions liability – he did answer – said no
o d) Allan has definitely committed reckless endangerment. No further evidence is required.
– we need mens rea of recklessness – supplied by intoxication causing him to forget