Criminal Law

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Criminal Law
2014-12-06 10:06:36

Homicide from Scots Law
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  1. What is Art 4
    Art 4 ECHR Everyone's right to life shall be protected by law
  2. 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.
  3. Mens rea
    • 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.
  4. sentences for murder
    • mandatory life if over 18
    • Criminal Procedures (Scotland) Act 1995 s205
    • under 18 detained without limit of time
  5. sentence for culpable homicide
  6. 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
  7. 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
  8. Can survivor of suicide pact be prosecuted
    Yes. Culpable homicide.
  9. 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
  10. Abortion Act 1967

    Woman consents to the procedure
    Pregnancy doesn't exceed 24/40
    2 doctors concur in good faith that:

    4 conditions
    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
  11. Infanticide
    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
  12. 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
  13. 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.
  14. 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
  15. Wickedness
    Chalmer's view
    The absence of any applicable justification or excuse
  16. Wicked recklessness 

    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
  17. 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
  18. 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