Criminal Law Assignment PDF

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Criminal Law Assignment...

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NAME: Maria Dominique Dynes

I declare that this coursework embodies the results of my own work and that it has been composed by myself. Following normal academic conventions I have made due acknowledgement to the work of others.

STUDENT REGISTRATION No:

201340965

CLASS CODE/NAME:

M9111 Criminal Law

TUTOR:

Jim Roberton

DATE OF SUBMITTING ESSAY:

19/11/2013

EXTENSION REQUEST:

N/A

WORD COUNT:

1333

Office Use Only Late Submission:

Yes / No

Essay submitted late by ____ days

Stamp if extension agreed:

Murder Jim has committed murder. There are two mens rea of murder, these being wicked intention and wicked recklessness1.Wicked recklessness is defined in the case of Cawthorne v HM Advocate2 when the accused commits an act without intent to kill but shows a complete disregard for the consequences of this act even if the result is the death of the victim. Wicked intention, which is satisfied in Jim’s case, is when the accused intended to cause the death of the victim. Jim satisfies the mens rea of wicked intention through several of his actions. His carrying of the knife shows intent because it would be reasonable to assume he would use it cause Paul serious harm or perhaps death and stabbing Paul through the heart shows that his intentions were to kill Paul as this is a fatal injury to cause someone. The actus reus of murder is “causing the death of a human being other than the accused”3, which Jim clearly fulfils this. Aggravated Assault Both John and Jasmine have committed aggravated assault. The mens rea of aggravated assault is the same as that of assault which is often referred to by the appeal court as “evil intent”4, meaning that the accused meant to cause harm to the victim. An assault can be considered aggravated when the attack takes place in the victim’s home5. This refers to the crime of hamesucken, although this term is not generally used anymore. Hamesucken entails “attacking a person in her own home, having entered the house for that purpose”6. The actus reus of aggravated assault is an attack on someone else as defined in Atkinson v HMA7. Lord Justice Clerk-Ross said that “a[n] attack may be constituted by threatening gestures sufficient to produce alarm”8. John meets the mens rea of the aggravated assault as he, Jim and Jasmine all went to Paul’s house in order to “give him a fright by shouting at him and giving him a push around”. This constitutes an “evil intent” on John’s part as he intended to cause harm to Paul. John’s actions also constitute the actus reus of aggravated assault as he entered Paul’s home with the sole purpose of cause him fear and alarm and therefore John has committed an aggravated assault on Paul. Jasmine has committed aggravated assault under art and part liability. Ferguson and McDiarmid have said that “art and part liability requires the participation of at least two people, and is essentially a form of derivative liability; where two or more people engage in crime, each is liable for the whole crime regardless of the actual part each played”9. This means that art and part liability requires both participation and a common purpose. Jasmine’s participation in the crime is proven as she instigated the plan meaning she was fully aware of what they planned to do, also constituting a mens rea for the crime. The type of common purpose that was present was antecedent concert meaning that the group agreed to commit the crime prior to it taking place.10 Jasmine also aided John and Jim in committing the crime by providing them with a key to enter Paul’s house, constituting an actus reus. 1

P R Ferguson and C McDiarmid Scots Criminal Law: A Critical Analysis (Dundee: Dundee University Press, 2009) page 226 2 1968, J.C. 32 3 Ferguson and McDiarmid, op.cit, page 225 4 lbid, page 258 5 lbid, page 262 6 lbid, page 262 7 1987 S.C.C.R. 534 8 Lord Justice Clerk Ross at 535, cited in C McDiarmid Law Essential: Criminal Law 2nd Edition(Dundee: Dundee University Press, 2010), page 78 9 Ferguson and McDiarmid, op.cit, page 173 10 lbid, page 173

Conspiracy to Commit Aggravated Assault Jim, John and Jasmine would all be guilty of conspiracy to commit aggravated assault. Conspiracy is a type of inchoate crime. Inchoate crimes are ones which have “just begun and so [are] not fully formed or developed”. Conspiracy was defined in Maxwell and Others v HM Advocate11 as being “constituted by an agreement of two or more persons to further or achieve a criminal purpose”. The mens rea of conspiracy is intention which is the agreement to commit a criminal act. The actus reus for conspiracy is simply entering into the agreement. John, Jim and Jasmine all entered into an agreement to gain entry into Paul’s house with the purpose of assaulting him. They could all, as a result be found guilty of conspiracy to commit aggravated assault. Culpable Homicide Some may argue that John would be guilty of culpable homicide under art and part liability. The mens rea for culpable homicide is when the mens rea for murder is absent or when the mens rea for murder is present, but mitigating factors operate. The actus reus of culpable homicide is the same as that of murder, “causing the death of a human being other than the accused”12.John should not be charged with culpable homicide for a number of reasons. Firstly, the common plan between him, Jim and Jasmine was to “enter [Paul’s flat] and give Paul a fright by shouting at him and giving him a push around”. The mens rea for murder is absent but the mens rea for assault is present. However it was not John’s actions which results in the death of Paul. John can only be charged with culpable homicide under art and part liability if it was foreseeable to him that the common plan would change and that Jim would produce the knife and stab Paul causing his death. This was not foreseeable to John as we can assume that he was unaware that Jim was carrying the knife, due to him being “astonished that Jim ha[d] done this”. Furthermore, in HM Advocate v Hartley13 Lord Sutherland told the jury “Culpable homicide is simply the causing of death by any unlawful act. The unlawful act must be intentional, but it is quite immaterial whether death was the foreseeable result of that act”14. According to Lord Sutherland, John could not be convicted of the culpable homicide of Paul as, despite him committing an intentional unlawful act, it was not his unlawful act that resulted in the death of Paul. Therefore, John cannot be charged with the culpable homicide of Paul as it was not foreseeable to him that their common plan would change and Paul’s death was not the result of John’s actions. Defeating the ends of Justice Jim, John, Jasmine and the siblings’ mother have all committed the crime of defeating the ends of justice. The mens rea of defeating the ends of justice is evil intention15. This means that the accused planned for their actions to result in proper justice not being served. The actus reus of defeating the ends of justice is behaviour which gets in the way of the smooth progress of the course of justice16. Jim, John and Jasmine have all committed the crime of defeating the ends of justice by fleeing the scene and asking their mother to dispose of 11

1980 JC 40 lbid page 225 13 1989 S.L.T. 135 14 Ferguson and McDiarmid, op.cit, page 245 15 lbid, page 372 16 lbid, page 372 12

evidence in order that the siblings’ involvement in the crime could not be proven. Their mother has also committed defeating the ends of justice as she agreed to wash the bloody clothes and dispose of the knife. In Dixon v HM Advocate17 the charge of defeating the ends of justice was held. Dixon was charged with defeating the ends of justice by destroying evidence linking him to a murder he committed and cleaning the clothes and footwear worn during the crime. This confirms the mother’s charge of defeating the ends of justice as she disposed of the knife and washed the clothes, similar to in the case of Dixon. In researching for this assignment I used the online resources Westlaw and LexisNexis. I also read the required reading and made extensive use of the notes from lectures and the handbook.

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2012 HJAC 50...