Cases

Question 1

Hogg v. MacPherson

Answer 1

ACTUS REUS

No voluntary act.

Horse drawn carriage knocked off road by wind which then knocked over lamppost. Asked to pay damages and refused. Won on appeal as it wasn’t his act - hadn’t done anything.

No voluntary act = no actus reus

Question 2

R. v. White

Answer 2

ACTUS REUS

No causal link.

White tried to poison mum by spiking her drink. Mum drank it and died but only drank 1/4 of it and was found that her cause of death was unrelated. No link between the act and the result. Found as attempted murder.

Question 3

H.M. Advocate v. Kerr & Others

Answer 3

ACTUS REUS

No liability for omissions.

Youths raping girl - Mr Donald didn’t participate but stood by and didn’t stop. Acquitted as you are not liable for your omissions.

Question 4

Quinn v. Lees

Answer 4

MENS REA

A joke: motive.

Man set his dog on a group of boys in order to scare them off land. Dog ended up biting boy. Accused claimed it was a joke but this cannot be used as a defence. Mens rea still exists.

Question 5

Paton v. H.M. Advocate

Answer 5

MENS REA

Recklessness

A person is reckless if they have displayed criminal indifference in their consequences.

Question 6

Thabo Meli v. R

Answer 6

INTERACTION OF THE ACTUS REUS AND MENS REA

Conduct treated as a continuous act.

Accused physically attacked victim and thought he had died so threw him off a cliff. Was found that he wasn’t dead before or after the fall and it was only hours after in which he died. Accused argued they didn’t intend to kill him and did not succeed - thus they didn’t have the mens rea or actus rush throughout the crime.

Held that the intention and act did exist and the conduct was treated as a continuous act.

Question 7

Roberts v. Hamilton

Answer 7

INTERACTION OF ACTUS REUS AND MENS REA

Transferred intent.

Woman hit snooker cue at man and accidentally hit her boyfriend. She argued that she had no intention to hit her boyfriend and she had no mens rea. However it was held that the mens rea can transfer from subject to subject and she had the intention and completed the act.

Question 8

H.M. Advocate v. Robertson and Donoghue

Answer 8

CAUSATION

(also UNLAWFUL ACT INVOLUNTARY CULPABLE HOMICIDE)

Take victim as you find him.

Two men robbed a shop and shopkeeper had a heart attack and died when the men shook him. Held that you must take the victim as you find them.

Thin Skull Rule

Question 9

MacDonald v. H.M. Advocate

Answer 9

CAUSATION

Victims contribution.

Victim was seriously assaulted by accused who then locked him in flat so he couldn’t escape. Victim was a known drug addict - tried to escape and fell to his death.

Question 10

H.M. Advocate v. Fraser & Rollins

Answer 10

ART AND PART LIABILITY

Each liable for ultimate actus reus.

Woman lures victim into a park, where her associates rob and kill the victim.
Held. All parties were held liable, due to the existence of a prior agreement.

Question 11

H.M. Advocate v. Gallacher

Answer 11

ART AND PART LIABILITY

SPONTANEOUS COMING TOGETHER

Feud between members of a circus and residence of Hamilton. Victim was mistaken for a member of the circus and attacked and kicked to death.

Held. All parties were charged with murder. Although were was no common plan; they were animated by a common criminal principle and spontaneously came together.

Question 12

Boyne v. H.M. Advocate

Answer 12

ART AND PART LIABILITY

STEPPING OUTSIDE THE COMMON PLAN

Several individuals were involved in a robbery. One victim died for a stab wound, had the others know that said individual possessed the knife they would all have been held liable.

Held. Evidence demonstrated a lack of knowledge and therefore only the assailant with the knife was liable for murder as they had strayed outside a common plan.

Question 13

H.M. Advocate v. Camerons

Answer 13

ATTEMPTS

PREPARATION TO PREPETRATION

Husband and wife claim that they have been robbed. They notify the police and the insurance company but did not submit the form.

Held. Even though they had not filled out the insurance for (last act) they were still convicted of fraud.

Question 14

Docherty v. Brown

Answer 14

ATTEMPTS

IMPOSSIBLE ATTEMPTS

Accused charged with the attempt to possess a controlled drug with they intent to supply. He had tablets which he believed were ecstasy, however they were intact fake.

Held. Charged with attempt to do something impossible. Attempt to possess ecstasy.

Question 15

West v. H.M. Advocate

Answer 15

CONSPIRACY

LOITERING SUSPICIOUSLY WITH WEAPONS

two individuals were found outside a bank. One party was found to possess a blade and an open razor. The pair was found guilty of conspiracy to assault and rob the bank. neither had entered the back, however but conspiracy could be established.

Question 16

Baxter v. H.M. Advocate

Answer 16

INCITEMENT

IT IS ENOUGH THAT THE ACCUSED IS SERIOUS

Dispute arose among owners of tenement flats over prospective refurbishment and related grants. One inhabitant was preventing the refurbishment from taking place. Other tenements residence decided to incite an employee to kill the complainer. Residence charged with incitement, one can be found guilty of incitement, without actually instructing the other to commit a crime.

Question 17

** Drury v. H.M. Advocate

Answer 17

MURDER

WICKED INTENT

Convicted of killing his wife with a hammer on discovering her affair with another man.

Held. Controversial decision, judge stated that for murder to be established there must be wicked intent or wicked recklessness.

The appeal court stated that the questions the judge asked the jury were wrong. They said he should have asked…
Did the accused actually loose control?
Would an ordinary person, having been provoked this way act take this action. (No reasonable person, acting as a reasonable person would carry out this action.)

Question 18

** H.M. Advocate v. Purcell

Answer 18

MURDER

WICKED RECKLESSNESS

Car was being followed by the police and ran over young boy at a crossing. The accused did not stop driving.

Held. There was no intention to kill and he was charged with culpable homicide on appeal

Question 19

** Petto v. H.M. Advocate

Answer 19

MURDER

IMPORTANT CASE RE MURDER

Accused set fire to 1st floor flat. Initially pleaded guilty and then withdrew plea as he state that he did not intent to injure anyone. However, he knew that people lived on the floor above and that the petrol used would cause a significant fire.

Held. Awareness to people living upstairs and the possibility of injury. Can therefore be thought of as intention to injure someone. Convicted.

Question 20

** Tomney v H.M. Advocate

Answer 20

LAWFUL ACT, INVOLUNTARY CULPABLE HOMICIDE

Several individuals were mucking about with a gun to which one of the parties possessed a licence. While acting recklessly one party fired the gun, killing another.

Held. The accused was convicted of lawful, involuntary culpable homicide

Question 21

Transco PLC v. H.M. Advocate

Answer 21

CORPORATE LIABILITY AND CORPORATE HOMICIDE

CHARGE OF CULPABLE HOMOCIDE AGAINST A COMPANY

Victim was killed in an explosion in the factory.
Courts stated company showed disregard for the safety of the public and its employees. Company knew that they were at risk of the explosion as they had eroded pipes. Therefore the company itself was accused of committing an ‘Involuntary lawful act culpable homicide’

Held. Prosecution were unsuccessful in producing a conviction, attempted to establish mens rea from the roles of different people in the company and their mental capacity.

Question 22

John Roy 1839

Answer 22

ASSAULT

NO INTENT TO CAUSE INJURY

The accused broke into a window, injuring a girl when shards of glass went into her eye.

Held. Roy was acquitted of assault, as he did not intend to injure the girl.

Question 23

** Smart v. H.M. Advocate

Answer 23

ASSAULT

CONSENT IS NOT A DEFENCE

The accused and the victim decided to participate in a 'square go'. 
Then Smart (accused) gets the upper hand and inflicts a series of injuries to the victim. Smart pleas that he cannot be charged with assault stating that they had both consented to the fight. 

Held. Consent for violence is not a defence.

Question 24

R v. Brown

Answer 24

ASSAULT

SADO- MASOCHISM

Police find video in man’s home; video is of a disturbing nature
Consent of homosexual men for sado-masochism
They appealed to the European Parliament said that it was against to article 8, as it is against their right to privacy.
People may be able to harm those who want to be harmed.

Question 25

Stewart v Nisbet

Answer 25

ASSAULT

ERROR AS TO CONSENT

Police officer convicted of assault, wrapped sell-o tape round a woman face and neck. This act constricted her breathing. He did not belief it would harm her, as he believed she had consented to it.

Held. Convicted of assault that even if she had consented it would not have been a defence

Question 26

H.M. Advocate v. Harris

Answer 26

RECKLESS ENDANGERMENT/RECKLESSLY CAUSING INJURY

ASSAULT REQUIRES INTENT, BUT CAUSING REAL INJURY BY RECKLESS CONDUCT IS A CRIME

A bouncer at a nightclub manhandled the victim in removing him from a club. In doing so he did injure the victim.
held. Majority of judges assumed he was entitled to manhandle those he was ejecting while making a citizens arrest, however Lord McCluskey stated that there must be JUSTIFIABLE FORCE.

Question 27

Black v. Carmichael

Answer 27

THEFT

TEMPORARY APPROPRIATION also DEMANDING PAYMENT

Accused had wheel clamped a car and then said to the owners you must pay $45 for not parking in that area. He had not stolen the car but prevented them from having full use of the car

Held. They had temporary appropriation and determined it was a type of theft.

Question 28

Adcock v. Archibald

Answer 28

FRAUD

EVEN A SMALL PRACTICAL RESULT WILL SUFFICE

The accused was a coalmine, they mined a certain amount and received a wage, if they mined more they would receive a bonus. Each miner had a ‘hutch’ tagged to ensure they received the correct pay. What happened in the case was the one miner swapped the tags to attempt to receive more money. Neither achieved the bonus. The amount of the coal gained each day was recorded.

Held. Adcock was convicted of fraud as he recorded to having mined much more coal than what he had actually gained.

Question 29

Bryne v. H.M. Advocate

Answer 29

WILFUL FIRE-RAISING

One party set fire to a piece of paper, which caused the whole building to go up in flames.
The courts got rid of different terms and defined as wilful fire-raising.
It is the mens rea, which distinguish between wilful and culpable.

Question 30

** Smith v Donnelly

Answer 30

BREACH OF THE PEACE

The accused lay on a road and was charged with BOP.
She said it was an incompatible crime with article 7 of the ECHR
The courts said that it is very clearly defined. These cases added ‘severe’ and ‘serious’ to definition. They narrowed down what actually fell under ‘breach of the peace’
Leading case in Breach of the peace Refusal to cooperate with the police is no longer a conviction

Held. Convicted of BOP.

Question 31

Jones v. Carnegie; Tallents v. Gallacher

Answer 31

BREACH OF THE PEACE

Five bench decision. Interactions of articles 10 and 11 of the ECHR. Article 10 – freedom of expression, article 11 – association and assembly. Argued their ECHR rights. Courts agreed but qualifications let the state use certain criteria – a law necessary for a democratic society and were designed to prevent disorder.

Question 32

** Harris v. H.M. Advocate

Answer 32

BREACH OF THE PEACE

CONDUCT MUST AFFECT THE PUBLIC PEACE

Mr Harris, well known figure. Dispute with girlfriend over a mini.
In this case Mr Harris was charge with 2 accounts of breach of the peace, that he knew information about where the families of the police men that charged him lived, worked, when to school etc.

5 judges heard the case; private conversation element comes in to play

There must be a public element. How can one statement made to another person in a private situation come to be breach of the peace.

Question 33

** Moorov v H.M. Advocate

Answer 33

CORROBORATION

UNDERLYING UNITY OF PURPOSE; SIMILAR IN TIME, CHARACTER AND CIRCUMSTANCE: PROVIDE MUTUAL CORROBORATION

The accused was sexually assaulting young girls in his shop (21 assaults). Each girl went to the police and told them what happened. No prosecutor, no witness, no corroboration. As this occurred on multiple occasions, each girl was able to act as witness, and therefore mutually corroborate for the crimes.
They were all sexual assaults…therefore if they were all of simpler in time, character and circumstance they can be mutually corroborations

Held. Accused convicted of several counts of assault.

Question 34

Lawrie v. Muir

Answer 34

IMPROPERLY OBTAINED EVIDENCE

EVIDENCE, THOUGH GIVEN IN GOOD FAITH, WAS IMPROPERLY OBTAINED, SO SHOULD BE EXCLUDED

Legislation that prohibited the supplier of milk using bottles of another supplier without consent. Inspector was set up to investigate milk suppliers using someone else’s bottles. They arrived at Lawrie’s property and found she was using someone else bottles.

However Lawrie was not part of the group that allowed the inspectors to investigate her property. Meaning that although the evidence was found in good faith, the evidence was found improperly.

Held. The evidence could not be used and Lawrie was not convicted.

Question 35

** Cadder v. H.M. Advocate

Answer 35

RIGHT TO A LAWYER/RIGHT TO AN INTERVIEW WITH A SOLICITOR

The Supreme Court held that Cadder’s rights under Article 6(1) of the ECHR had been breached because he had been denied access to a solicitor before he was interviewed by the police.

Therefore Scottish police can no longer question suspects without offering the suspect a private consultation with a lawyer, not only before an interview but also at any time during the interview at the suspect’s request.

Question 36

** H.M. Advocate v. Chalmers

Answer 36

CONFESSIONS

A VOLUNTARY STATEMENT IS ONE WHICH IS GIVEN FREELY, NOT IN RESPONSE TO PRESSURE AND INDUCEMENT AND NOT ELICITED BY CROSS-EXAMINATION.

Chalmers (16 yrs) were under suspicion, and taken from home and questioned by police and was cautioned, in Scotland ‘You have a right to remain silent, anything you say may be used against them’. The accused started to cry and then took the police to a field where they found the victims purse. Under trial the accused said that he did commit the murder. However, at the initial stages of investigation the police may question the suspect and gain further information.

If the police harass and pester the accused the victim’s confession is admissible

The confession must be obtained by fair means and given voluntarily of the victim.

Question 37

** Davie v. Edinburgh Magistrates

Answer 37

EXPERT EVIDENCE

EXPERT’S ROLE IS TO PROVIDE INFORMATION ON MATTERS OUTWITH NORMAL EXPERIENCE

Blasting in a sewer construction, said to have damaged some houses.

The pursuer produced lots of witnesses to say that their house was fine up until the blasting.

The defender produced 3 expert witnesses, which did not agree with each other.

Question 38

Sweet v. Parsley

Answer 38

STRICT LIABILITY

PRESUMPTION AGAINST STRICT LIABILITY

Parliament passed a drug act, if you are an occupier of a premises and you permit smoking cannabis then it is a statutory offence.

However another part of the act said that it is an offence if they are concerned with the management of a premises which is used to smoke cannabis.

Sweet rented out her building to students, who when they lived there smoke cannabis while living there. She was going to be charged with being ‘concerned with the management of premise being use for smoking cannabis.’

Miss Sweet did not know that the students were smoking cannabis, her connection to the situation was that she was ‘concerned with the management’

Held. strict liability was not applied, and Sweet was not charged.

Question 39

Owens v. H.M. Advocate

Answer 39

ERROR

ERROR MUST BE GENUINE AND REASONABLE

The accused, Mr Owens had killed someone who he believed was going to attack him with a knife.

The question was what if he had made a mistake about this.
It turns out that the victim did not have a knife.

An error of fact can be a defence if it was a genuine error and a reasonable one in those circumstances.

Held. In this case it was neither.

Question 40

Brennan v. H.M. Advocate

Answer 40

VOLUNTARY INTOXICATION

NOT A DEFENCE

Mr Brennan stabbed his father to death. He had consumed about 20-25 types of beer, some sherry and some amount of LSD. Mr Brennan junior and senior were arguing about the Pink Floyd Dark Side of the Moon cover.

Forensics said that the layperson would have been dead at the amount of alcohol and drugs consumed.
Attempted to say that he was insane do to the amount he has consumed.

Held. You cannot charge insanity on acute intoxication and that being so drunk negates mens rea. Convicted of murder.

Question 41

Ross v. H.M. Advocate

Answer 41

INVOLUNTARY INTOXICATION

DEFENCE RECOGNISED

Attempted murder and aggravated assault .He alleged that his drink has been spiked with diazepam and LSD. It was intoxication and it was not voluntary…is this a defence.

Held. Ross was acquitted. The person must be in a semi-conscious state and it must be caused by an external factor.

Question 42

** Thomson v. H.M. Advocate

Answer 42

COERCION

HUME’S 4 CRITERIA

Accused convicted of robbery for having driven the ‘getaway’ van. He claimed that he was forced at gun point to drive the van.

Criteria -
1. An immediate threat of death or bodily harm.

2. There must be an inability to to resist the threat.
3. Did the accused play a backward.
4. Minimal part in the attack.

Question 43

R. v. Dudley and Stephens

Answer 43

NECESSITY

NO DEFENCE TO MURDER

Two people cast adrift after they has been swept of a yacht
They killed a boy that and ate his flesh and drank his blood, claiming necessity

Held. The two parties were charged with murder, as the killing could not be justified as a worldly necessity. Killing someone is not a necessity to preserve another’s life. Not a defence for murder.

Question 44

Moss v. Howdle

Answer 44

NECESSITY

DANGER OF DEATH OF GREAT BODILY HARM

Leading case for necessity, related to statutory offence of driving in excess of the speed limit.
Theory of ‘duress of circumstances’.
Speeding because passenger was ill. Only a cramp.

Held. Not reasonable.

Question 45

H.M. Advocate v. Anderson

Answer 45

NECESSITY IN A MURDER CASE

A man was charged with murder while youths were attacking his car

At the time when the victim was run over, the victim was not threatening the accused or his son. Anderson decided that the only way to save his life and his sons was to run over the boy to kill the boy. The question at hand was whether this was a necessity to kill the boy, in order to prevent the mob from killing his son.

Held. Case was acquitted.

Question 46

H.M. Advocate v. Doherty

Answer 46

SELF DEFENCE

MUST BE NO ALTERNATIVE, REASONABLE FORCE, ONLY

Leading case on self defence. 3 requirements - imminent danger to life or limb, no opportunity to retreat and must be a proportionate response

Question 47

Fenning v. H.M. Advocate

Answer 47

SELF DEFENCE

NO CRUEL EXCESS OF VIOLENCE

Fenning was charged with murdering a man called Paterson for hitting him repeatedly over the heard with a stone. The pair were on a fishing trip and Paterson stated that he found out Fenning was having an affair with his wife.

Paterson said he was going to kill his wife and Fenning and waved an air-rifle around. Fenning hit him over the head repeatedly with a stone.

This was a ‘cruel express of violence’

Held. The jury found Fenning guilty.

Question 48

Thomson v. H.M. Advocate

Answer 48

PROVOCATION

IMMEDIATE RETALIATION

Thomas was being ripped off by his business partner and defrauded him meaning he lost lots of money. Thomas met with the man to discuss what had happened, and he laughed in his face and forced him to sit back down by placing his hand on his shoulder. Thomas snaps and stabs the partner with a knife 11 times.

Held. The court found that provocation was not a defence in this circumstance. As the attack was not reasonable to the provoke.

Question 49

Gillon v. H.M. Advocate

Answer 49

PROVOCATION

DIFFERENT TESTS

The accused has struck his victim repeatedly with a spade.

It was confirmed that he had caused the death of the victim however it was considered whether it was reasonable to respond this way by provocation of violence

Held. The courts said that the reasonable proportion of the provoking act and the retaliation must be equivalent

Question 50

** Donnelly v. H.M. Advocate

Answer 50

PROVOCATION

AN ATTACK ON A THIRD PARTY.

Seeing a friend attacked made him lose control.

Court left open the broader question of whether it was allowed. Might amount to provocation.