LS1020 Criminal Law - Tutorial 1 PDF

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LS1020 Criminal Law Lecture Notes Criminal Law info 9/9/19

- Details on tutorials on page 66-70 of the handbook - Monday 4th November 11:00-12:00 class exam, formative assessment, 1 question - Degree exam is 2 hours long, 6 questions in paper, you must answer 3. Must be a detailed answer. Scenario questions explaining what crime is being discussed and what your understanding of it is

- Actus Reus (action of a crime) Mens Rea (mental capacity to commit said crime) - In writing, reference primary and secondary material to present a sound legal argument, cite case law and statutory authorities

- 3 hours of lectures and 1 tutorial per week - Read sample cases - Prepare well for tutorials - Induction exercise due Friday: Look on WestLaw and analyse then answer questions. Identify the two parties, which court, explain in own words about the case

The Rule of Law 10/9/19

- ‘Wherever law ends, tyranny begins’ John Locke, Second Treatise of Government 1689

- ‘The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based’ Lord Hope, AXA General Insurance Company LTD. V Lord Advocate (2011)

- Lord Bingham says that no one is above the Rule of Law (ROL) and that everyone should enjoy peace and protection by the law. Everyone should be treated equally under the ROL

What is Criminal Law

- ‘The Criminal Law, at least in our society, purports to enforce rules about which there is a general (although not always universal) agreement’ Ferguson & McDermid 2014

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- Harm Principle: Society demands that some acts are crimes and expect these to be treated as criminal offences. Could have physical, verbal, harm to object, harm to yourself

- A crime is a situation forbidden by the law under threat of punishment Definition of a Criminal Act

- Positive conduct: A public wrong e.g. assault or murder - Result conduct: An act or conduct that has a result e.g. selling glue to a minor - Negative conduct: Crime or Omission, failure to comply with the law. Must be a legal duty to act e.g. Failure to provide a breath specimen at traffic stop or not putting seatbelt on when driving

- Negative conduct that has a result: Crime of commission by omission e.g. starving a child to death

- A state of affairs: A state of affairs exist or a person is in a particular situation e.g. Drunk in charge of a motor vehicle, Dangerous Dogs Act (being in charge of a dangerous dog)

What acts ought to be a Crime?

- They involve harm to others e.g. assault - They cause offence to others e.g. racial aggravation - They are contrary to morality e.g. incest - They harm the offender themselves e.g. drug taking - Cubie (2016) says: Crimes against a person, property, state, public order, morality, regulatory offences should be CRIMES

Sources of Law

- Common Law e.g assault, murder, theft, robbery, homicide. For common law must go to case law to determine wether someone has committed an offence or not

- Legislation e.g. statutes - Human Rights Law e.g HRA 1998 - Legal writings 2

Scotland’s ‘mixed legal system’

- Common law is developed and applied by the judiciary - Institutional writers are legal principles developed by prominent lawyers e.g. Hume’s Commentaries on the Law of Scotland Respecting Crimes 1789

- Legislation: UK and Scottish Parliaments - ECHR Common Law

- Evolved over time by causes heard in court and decisions taken by judges creating precedents i.e. using the decisions of previous ‘higher’ courts to guide a decision on an offence

- Penalties/sentences are not fixed by the nature of the offence but by the authority of the court hearing the case. Different courts have different sources of authority.

- (Reference HM Advocate V Wilson 1984 SLT 117) Read of WestLaw - In England, R for Regina is used but in Scotland, Her Majesty's Advocate is used - HM A V Wilson involved a man maliciously switching off an electric turbine in a power station resulting in a loss of money for the company. Charged with malicious mischief. He argued that no harm was done to anyone and that there was no crime committed. However, crime office argued that there was economic harm caused and therefore Wilson had committed a crime

- An act by a person that causes herm and which society finds unacceptable and expects measures to be taken to address

Legislation

- Acts or omissions can be declared crimes by statutes because society demands that these actions are treated as crimes

- They can be either UK acts (Westminster) or Scottish acts (Scotland Act 1998, amended 2012 and 2016)

- Some differences in laws e.g. Drink driving limit lower in Scotland that in England - Road Traffic Act 1998

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Legal Writings

- Institutional writers e.g. Hume - They don't have statutory authority but are used by courts to make decisions - Other writers e.g. Alison (principles of the criminal law of Scotland 1832) MacDonald ECHR

- Art 2 Right to life, Art 3 prohibition of torture, Art 5 right to liberty, Art 6 right to fair trial, Art 7 no punishment without law

Scotland Act 1998

- Scottish parliament has no power to enact legislation which is not compatible with convention rights

O’Hagan V Rea 2001 SLT (Sh. CT) 30

- Accused was charged with failing to ensure her child attended school - Argued she had no criminal responsibility for the crime committed - Sought to invoke Art 6(1) Right to fair trail - Appeal dismissed - Art 6(1) ECHR did not concern the subject matter of a trial, but was principally concerned with ensuring that procedures were fair

Scottish Criminal Courts/ Legal system 12/9/19

- Common law principles, the fundamental right to access justice. R V Sec of State for Home Dept. Ex party Leech 1993 WLR 1125 made access to law a legal right

- Judiciary and Courts (Scotland) Act 2008, no interference from government in appointing the judiciary, they are appointed by the judicial appointments board and stamped in the name of the Queen. Judges must retire at 70 are accountable to be fit for purpose and can have no criminal offences

- Lord President/Lord Justice General: most senior judge in Scotland, sits in high court of Scotland as well as criminal court

- Lord Chief, currently Lady Dorian, second most senior judge in Scotland 4

- Lord Advocate, chief prosecutor, appointed by government, head of COPFS. - Solicitor General, deputy to Lord Advocate, advises crown - UK has 3 legal jurisdictions, England, Wales, Northern Ireland & Scotland, each have own laws, judges and courts, share many common principles.

- Supreme Court unifies the three legal jurisdictions Solemn/Summary procedure

- Solemn procedure: Involves most serious of criminal cases and may ultimately lead to a trail on indictment, either before a judge in the High Court or before a Sheriff court. Trials are conducted BEFORE A JURY. Murder, rape, serious sexual offences and treason MUST be trialled in high court.

- Summary procedure: used for less serious offences and may ultimately lead to a trail before a sheriff or justice of peace. Trials are conducted WITHOUT A JURY. Most common type of case in Scotland. Sheriff makes decision

- 15 people in Jury in Scotland, majority of 8/7 will carry a decision. They decide on questions of fact

- Sheriffs role is to decide on questions of law, guides and directs Jury on Law, makes sure procedures are fair and assists Jury with their decision

Criminal procedure

- All criminal cases in Scotland are prosecuted by a public prosecutor in name of Crown e.g. HMA (Her Majesties Advocate) or PF

Scottish Criminal Courts/Jurisdiction

- Justice of Peace court deals with minor crimes - Sheriff courts deal with crimes with or without a jury - High court of Justiciary sit in Edinburgh but also go on circuit to deal with serious crime across Scotland

- UK Supreme Court top of the chain - ‘Sheriff holds court in van as man refuses to get out’ The Guardian news article - 224,504 crimes recorded in Scotland in 2017-18 - 85,000 crimes prosecuted in courts 5

- 33% in Justice of Peace courts - 61% in Summary Sheriff Courts - 4.9% in Solemn Sheriff courts - 0.7% in High Court - Fiscal fines offered to many lower crimes now Jurisdiction of High Court of Justiciary

- Can either be court of first instance or acts an appeal court - Only sits in Edinburgh when an appeal court (3 court judges) otherwise 1 judge will go on circuit to deal with serious crimes when in first instance

- Treason, Murder and Rape dealt exclusively with in the High Court First instance/Sentencing authority

- Justice of peace court: max sentence of 60 days/fine not exceeding £2500 - Sheriff court: max sentence 12 months or fine not exceeding £10,00 - Sheriff court: solemn max sentence 5 years - High court: sentence for life etc Criminal appeal court

- Sheriff appeal court, created in 2014 by Court Reform Act 2014, only sits in Edinburgh, only accused or the crown can make an appeal, victim of a crime has not right to appeal in Scotland. The Crown can only appeal on a point of law

- High Court Justiciary Appeal Court e.g. miscarriages of justice. Only sits in Edinburgh. Next point of appeal after Sheriff appeal. Hears appeals from Scottish Criminal Case Review Commission.

- Supreme Court can only consider appeal cases of major public interest e.g. Human Rights

Case examples

- Robertson V PF 2015 SAC (Crim) 1 (when appeal case, the names are reversed), first case in sheriff appeal court, appeal against defence refused 6

- Potts V PF 2017 HCJAC 8, appellant’s plea of oppression has been based not only on delay but on conduct of crown throughout proceedings

- HMA V Ball 2016 HCJAC 109, appeal on proceual matters leading to miscarriage of justice, appeal granted and case remitted back to sheriff court

- Cadder V HMA 2010 UKSC 43, Cadder found guilty of serious criminal activity, he claimed he had been denied chance to speak to solicitor before being interviewed by police, appeal granted became human rights violated. This changed police procedure following arrest. His case was thrown out as well as many other cases and this led to Scottish government to hurriedly change legislation to make in mandatory for a solicitor to be offered

Scottish Criminal Case Review Commission SCCRC

- Independent review body to review miscarriages of justice to refer cases to the High Court for review

- Commission can look into matters that have already been reviewed at a lower level - Looks at cases that have already been heard in High Court or Sheriff appeal court Verdicts

- Guilty, Not Guilty OR Not Proven (does not exist anywhere else) - Not proven means the same as not guilty and accused can walk free/acquitted

- Double Jeopardy (Scotland) Act 2011 - In Scotland, where a person is found not guilty, he or she cannot be tried again for same crime EXCEPT! when evidence of perverting course of justice, where evidence is tainted, where accused has previously made an admission of guilt and this is made known, new evidence is brought to light which substantially strengthens the case against the accused

- HMA V Sinclair 2016 HCJAC 24, Sinclair murdered 2 young girls in 1977, overtime got out of prison would murder someone else. Acquitted at original trial but years later new evidence brought to life due to enhanced DNA testing, incriminating Sinclair and his brother in law

Rules of precedence

- Decisions in higher courts create precedence which lower courts must follow 7

Sheriff Appeal Court Decisions

- Decisions are binding on the court itself, any cases heard in the court and in the Justice of Peace Court

High Court of Justiciary as a trail court

- Decisions are binding on sheriff court and Justice of peace court (lower courts) - HCOJ not bound by HCJ as a trial court although previous decisions can be used as precedent

- Jessop V Stevenson 1987 SCCR 655 - As an appeal court, has 3 judges, no jury although can sit with 5, 7, 9 or 12 and only hears appeals on points of law

- Full bench can over-rule a previous high court decision - Sugden V HM Advocate 1934 JC 103 Lord Advocates Reference

- Can refer point of Law to high court of justiciary, case can then be sent back to court of origin

The Anatomy of a Crime 16/9/19

- Constitution of a crime: Actus non facit reum nisi mens sit rea (a persons conduct cannot ammonite to a crime unless it is carried out with a blameworthy state of mind)

- Conduct is not criminal unless it is carried out with criminal intent (there are exceptions e.g. strict liability crime

- Conduct + Mental element, Act + Intention - Conduct: doing something wrong, an omission, a state of affairs - Mental element: criminal intention, acting recklessly, blameworthy state of mind Defences

- Can defence challenge what we understand about constituting a crime? YES - The absence of a defence is critical in determining wether a crime took place 8

- e.g. Common Law Offence Murder: Murder is constituted by any wilful act causing destruction of life, wether wickedly intended to kill, or displaying such wicked recklessness as to imply a disposition of state of mind depraved enough to be regardless of the consequences

- To be a crime, must be action, intention, no defence - E.G. Murder- A shoots at B, meaning to kill him, but misses= Not guilty, no death - A shoots at B, meaning to kill him but B is already dead= Not guilty, A did not cause B to die

- A shoots at B meaning to frighten him, but hits him and kills him= Guilty of murder, wicked recklessness

- A shoots at B, intending to kill him because B is attacking him with a chainsaw= Guilty but defence of self defence

- E.G. Vandalism- wilfully or recklessly destroying property belonging to another - A’s car wont start for third time this week, he kicks car and makes large dent in it= Not guilty, his own property

- A trips and knocks over a display of glass in a shop smashing it to pieces= must be wilful or reckless, crown would have to prove if he was guilty or not, could be an accident, drunk, bad temper etc

- A breaks down his neighbours back door when he same flames and smoke coming from the house= Guilty but statutory defence of reasonable excuse

Actus Reus and Mens Rea

- Actus Rea: conduct element of a defence - Mens Rea: criminal intent required to commit an act - A person is guilty of a crime if without justification or excuse, a person carries out the actus reus of that crime with the requisite mens rea

- Coincidence of actus reus and mens rea: they must both coincide at the same time for a crime to have been committed e.g. A sets out to kill B, hits over head with stone. Believing him to be dead, disposes his body in a sewer. However, B is still alive but drowns in the sewer. Here we have a gap in actus reus and mens rea because action did not succeed, no mens rea of putting B down the sewer, there was no intention in killing him by putting him down sewer and therefore cannot be found guilty of the crime of murder (in theory) 9

Coincidence in Time

- Thabo Meli V R 1954 1WLR 228. Accused planned to kill the deceased, took him to a hut and hit him over head, planned attack did not cause death. His death was actually caused by exposure when lying at bottom of cliff after accused pushed him over. Here we have intent to commit to murder but the death was not caused by either of the accused actions. Case was appealed and it was decided that the sequence of events were so closely intertwined that there was enough to find accused guilty

- Le Brun 1992 QB 61. Accused assaulted wife, no pre-concieved plan, she died from injury not caused by assault, actus res was not the assault, the mens rea was however related to assault. Convicted of manslaughter, appealed against conviction. Looked at Thabo Meli case to help, in this case, the man picked up his wife and she inadvertently fell out of his hands causing her to die, the accused was trying to hide his actions and therefore should be foundd guilty of manslaughter. Guilty because death was part of a sequence of events

- Fagan V MPC 1969 1QB 439. Accused parking carelessly, parked it on policeman’s foot but deliberately refused to drive off. Accused was found guilty of assault. Argued on appeal that he had no mens rea, had not intended to drive over his foot, no coincidence in time of mens rea and actus reus. Conclusion was that mens rea not present but it can be added by another subsequent event (clear intention to complete the assault, refusing to move his car off the foot), action was maintaining car on foot, not actually parking the car on the foot

Coincidence in Person

- R V Cogan and Leak 1976 QB 217. Leak encourages Cogan to rape Leak’s wife, Cogan convicted of Rape but this conviction is quashed on appeal because Cogan believed Leak’s wife was consenting. Leak was convicted of aiding and abetting rape, appealed against conviction. Leak argued that he could not be guilty if Cogan had been found not guilty of rape. Appeal was not upheld, Leak had the mens rea for the rape to be carried out and therefore could be convicted because the actus reus was the act of aiding and abetting

Actus Reus 17/9/19

- Drury V H.M. Advocate, 2001 SLT 1013. Accused killed his ex partner with a hammer, argued a defence of provocation. Held that he had not demonstrated the mens rea to murder I.e. ‘wicked intention to kill’. Drury found out his ex-partner slept with another man which drove him to pick up a hammer to hurt/kill ex-partner and killed her. This decision was controversial as suggests the defence of provocation influences the 10

impacts of mens rea. The defence of provocation reduced the crime from murder to culpable homicide because he was not acting in right mind at the time due to provocation. 5 judges made the decision and argued there was not the presence of ‘wicked intention’

- Galbraith V H.M. Advocate 2002 JC 1. Accused was found guilty of murder of her husband. Appealed conviction on the grounds she was a victim of domestic abuse from her husband. She claimed diminished responsibility at the time of the offence. Suffering from PTSD at time of event and therefore crown accepted grounds for retrail of the case as a result

- Actus Reus (the conduct of an offence) includes acts, omissions or states of affairs as well as the consequences of acts or omissions. Present in all crimes. The law forbids certain types of conduct

- The harm from a conduct defines the crime - Hogg V McPherson 1928 J.C. 15. Payment was sought for the cost of damage caused by the accused when his horse van blew over in a strong wind and broke a street light. Court held the accused was not negligent and not responsible for harm caused.

- The law is concerned with the conduct not the consequences of failure to act e.g. The possession of drugs Act ?

Duty to Act

- No liability for a crime of omission unless there is a legal duty or legal responsibility to act

- HMA V Kerr and Ors (1871) 2 Couper 334. 3 men charged with assault but 1 did not take part in rape. Watched but did not call for help or intervene. Verdict not proven because although improper (immoral) conduct there was no duty to act in this situation...