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What is Art 4
Art 4 ECHR Everyone's right to life shall be protected by law
Homicide actus reus
Same for murder and culpable homicide
By overt act e.g. shooting, or omission as in Bone v HMA 2006 SLT - mother charged with culpable homicide partly because failed to protect her daughter from assaults by partner
Cause the death of a human being other than the accused
the destruction of life
Macdonald: Homicide is committed only where a self existent human life has been destroyed
Abortion prosecuted as that, not under homicide.
- For murder
- wicked intent or wicked recklessness
mens rea is the dividing line between murder and culpable homicide.
- actus non facit reum nisi mens sit rea
- forbidden behaviour is not criminal unless it is performed with the requisite mental state
mens rea for murder not only showing that person is not only blamewothy, but so culpable as to place the crime in another category, that of murder, rather than culpable homicide.
sentences for murder
- mandatory life if over 18
- Criminal Procedures (Scotland) Act 1995 s205
- under 18 detained without limit of time
sentence for culpable homicide
cessante rationale legis, cessat ipsa lex
once the public policy objective or rationale has ceased to apply, the law itself ceases to apply.
May also pertain to the law on blasphemy
Can suicide be charged under Breach of the Peace?
Yes. Woman on supermarket roof threatening to jump off. Boy in mothers toilet threaening to overdose on paracetamol.
Arrested under BoP and dealt with under mental health legislation
Can survivor of suicide pact be prosecuted
Yes. Culpable homicide.
When does life begin
- Evans v UK (2008) 46 EHRR 34
- Europan Court of Human Rights (ECtHR) ruled that there was no European consensus on the beginning of life
- Vo v France (2005) 40 EHRR 12
- Case involved medical negligence
- Court ruled under Art 2 no violation but did not commit to foetus status as a person
- Neither desirable or possible as matters stand to answer in the abstract if the unborn child is a person for the purposes of Art 2
Abortion Act 1967
Woman consents to the procedure
Pregnancy doesn't exceed 24/40
2 doctors concur in good faith that:
1. Pregnancy hasn't exceeded 24/40 and continuation would involve risk, greater than that if it were terminated, to the mental and physical health of the woman or existing children of her family
2. Necessary to prevent permanent physical or mental injury to the pregnant woman
3. Continuance of preganancy would involve risk to the life of the woman greater than if it were to terminated
4. Substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.
Substantial and seriously not defined
No law against this in Scotland. Murder or culpable homicide.
- Child must be fullyborn
- HMA v J McAllum tied ligature around neck made from garter
- HMA v Elizabeth Scott compressed his throat
- Lord Young's view was if child cried and breathed didn't need to be fully born
- Mens rea in both is to take the child's life
- Both acquitted
Death following injuries sustained in utero
- McKluskey v HMA 1989 SLT 175
- Injuries to foetus, Caesarian section, died.
- Caused death by dangerous driving under the Road Traffic Act 1991 s1
- Appeal court ruled that outwith the RTA provisions, would be culpable homicide, but didn't expressly say so
Aggravated assault can be charged as well as murder or culpable homicide.
No time restriction in Scotland for the charge no matter when person dies after assault
Causation must be proved
Switching off life support machine is NOT a novus actus interveniens
Finlayson v HMA Injected morphine and diazepam with victims consent, caused immediate brain death, would have been cardiac arrest if wasn't put on life support. Charged with culpable homicide when switched off.
Permission to stop feeding and hydrating a patient
Application under civil law can be made to Court of Session.
Law Hospital NHS Trust v Lord Advocate 1996 SC 301
No prosecution of doctors follow guidelines and act in good faith with authority form the Court of Session
The absence of any applicable justification or excuse
The mens rea of a criminal attempt is exactly the same as that for the completed crime
Is a separate and sufficient for of the mens rea of murder
Crawthorne v HMA 1968 JC 32
Shot into a roomful of people
- Halliday v HMA 1999 SLT 485
- Brothers kicked and assaulted victim, shook hands, went to wash, changed clothes, went back to see victim, called emergency services. Convicted for showing wicked recklessness
HMA v McGuinness
Lord Justice-Clerk Aithison said that people who knives and pokers and hatchets against fellow citizens are not entitled to say we did not mean to kill if death results. people are guily of murder if they use items such as these whether they intend murder or not
Death during a robbery
State charges murder
Act of robbery is wickedly reckless by its intention to rob using personal violence or threats of violence
Art and Part in Robbery
Doctrine of 'constructive malice' applies only if death occurs in the course of a robbery
HMA v Fraser and Rollins (1920) SLT 77
Woman enticed man into park, two associates attacked, robbed and killed him.
Lord Sands: If a person attempts a crime of serious violence, object not being murder, if violence results in death, jury entitled to convict for murder