Criminal law Week 4

Crimes against the person

Offences: Abduction

- The essence of the crime of abduction “to carry off or confine a person against his will
without lawful authority”
- Abduction must be against the victim will
- Force is not necessary (it is possible so abduct by threats or inducements)
- The purpose of the abduction not important
- A child? Offence of plaglim- carrying off a child.

Elliot v Shudum.

Offences: Assault

- An assault is a crime at common law and can be described as an “ attack on the person of
another” (actus reus) “with evil intent” (mens rea)-
- The offence is broadly defined, not limited only to punches, stabbings or to blows cauusing
physical injuries
- An assault can only be committed intentionally. It cannot be committed accidently or
recklessly
- Fagon v Metropolitan Police Commissioner [1969] 1 QB 439; KEY CASE

The concept of an attack is very broadly defined, similarly spitting on someone would amount to
someone as an assault. The actus reas is everything and anything that constitutes an attack on a
person of another, the mens rea requirement is intention- must be an evil intention. Cant commit an
assault in Scotland recklessly or carelessly.

If the only evidence the crown can produce is that someone acted recklessly, that is not enough
to convict one of assault.

It is not necessary to prove that the attack caused injuries to another to be proven of assault

Words alone do not constitute to an act of assault, has to be more threating, immediate physical
injury.

Need to look for whether the accused persons actions has caused the complainer fear of immediate
injury.

- It is not essential for the prosecution to prove that the attack caused physical injury to the
victim.
- But mere words alone cannot amount to assault
- If no injury caused, the criterion is thay the physical conduct of rhe accused should have
been such to place the victim in a state where they feared immediate infliction of injurt
- E.g. presenting a knife, firearm, or to shake a fist menacingly in your face is an assault.
- See: Atkinson V HMA 1987 SCCR 534
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Does consent matter for assault?

- General principle: you cannot consent, in criminal law, to a wrong. It is no defence

- This is also true in some other jurisdictions- gruesomely demonstrated by the case of Armin
Meiwes, the German cannibal
- Can you consent to a ‘square go’? Smart v HMA 1975 JC 30
- What about sadomasochism? R v Brown [1994] 1 AC 2112

Assault (aggravations)

Assaults and other offences may be aggravated by:

- The mode of attack- the weapon used (e.g. bladed instruments, firearms)
- The extent of the resulting injury – “To severe injury” “permanent disinfirguement”
“permanent impairment” “to the danger of life”
- Aggravators don’t create any new criminal offences- they may be attached to an underlying
crime to increase its severity
- This is taken into account on sentencing
- A judge or jury may convict of the crime, under the deletion or aggravation

Aggravated assaults are more serious types of assault with harsher sentencing.

Offences: Culpable and Reckless Conduct

- Assault is a crime of intention- but what about injuries which arise as a result of reckless
behaviour by the accused
- Common law charges of “reckless injury”, or if no injuries result, of “reckless endangerment
to the leiges”
- E.g. procurator Fiscal, Edinburgh v Jamie Anderson (2011) (Unreported): young man from
nwecastle, got a traffic cone and threw it off the george 4th bridge. No injuries caused,
however charged for culpable and reckless conduct as injury could have happenend
- HM Advocate v Giovanni mola (2007) (unreported)- HIV Transmisson: Mola was in a
relationship, would not wear a condom during sex, sex was consented. Mola was HIV
positive, did not tell partner, refused to try prevent transmission. Mola prosecuted for
culpable and reckleckless conduct.

“Leiges”- definition for people, society.

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Offences: Culpable Homicide

Two key fomrs which homicide prosecutions can take: murder and culpable homicide.

Wr have defined murder, as any wilful act causing destruction of life, accompanied by the mens rea
of either a) intention to kill or b)wicked recklessness so as to suggest disposition sufficiently
depraved to be indifferent to whether the victim lived or died

What precisely does the concept of wicked recklessness mean, how does it differ from ordinary
recklessness?

Attempted murder case of Cawthorne v HM Advocate, lord justice general clyde explains:

“the mens rea which is essential to the establishment of such a common law crime may be
established by satisfactory evidence of a deliberate intention to kill or by satisfactory evidence of
such wicked recklessness as to imply a disposition depraved enough to be regardless of
consequences… the reason for this alternative being allowed in our law is that many cases it may not
be possible to prove what was in the accused’s mine at the time, but the degree of recklessness in
his actions, as proved by what he did, may be sufficient to establish proof of the wilful act on his part
caused the loss of life”

Wicked recklessness can also be established by examining the tools, instruments or weapons used
by the attacked in the course of the attack which causes death.

HM Advocate v McGuinness 1973 JC 37 at 40 the court held:

“people who use knives and pokers and hatchets against a fellow citizen are not entitled to
say ‘we did not mean to kill’, if the death results. If people resort to use of deadly weapons of this
kind, they are guilty of murder, whether or not they intended to kill”.

Legal commentators have generally distinguished three different principle kinds of culpable
homixide:

- Assault-type culpable homicide

- Unlawful act-type culplable homicide: and
- Law act-type culpable homicide

In all three versions of the offence, the mens rea required for a murder charge will be missing- but
there may be considerable variation in the precise conduct of the accused person which results in
the death of the victim.

Assault type culpable homicicde

- Most common type of culpable homicide where the accused has embarked on an attack
against the victim which results in their death
- Example: HM Advocate v Kallum Delaney.
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Unlawful act type culpable homicide

- Arises from criminal behaviour other than assault which causes death, but which
nevertheless does not exhibit the mens rea of intention to kill, or wicked recklessness about
whether the victim lived or died.
- Example: burning a house to the ground to commit insurance fraud, however homeless man
sleeping in warehouse and dies in the fire- in thos scenario there is no reasonable basis to
assume the property is occupied or that people are going to be affected by the fire. Certainly
the common law of wilful fire raising but have also caused the death of an indigent man, and
as a result, culpable homicide

Recklessly-performed lawful act type.

- generally described as lawful act type cases where the death results from the gross
negligence on the part of te accused person in their performance of otherwise lawful
activities
- The principle characteristics of lawful act type culpable homicide is that underlying
behaviour which leads to the victims death Is not, in itself, criminal.
- Example: HM Advocate v Ross Fontana, prosecuted at the high court in Kirkaldy in 1990.

Offences; Threatening or abusive behaviour

Breach of the peace

- Common law crime

- Leading case: Smith v Donnelly 2002 JC 65- a protest case outside faselane nuclear base
- “conduct sever enough to alarm any reasonable person and threaten serious disturbance in
the community”

Courts had to apply restrictive account of what breach of the peace really applied to- see leading
case.

Breach of peace retreated to a public element only.

Introduced new offence of threatening or abusive behaviour.

*What is the mens rea for this offence? Can be committed intentionally or recklessly, we have to
prove they intended to cause fear or alarm, or that they were recklessly about their actions.

What is “behaviour”?

- A section 38 (3)
- (a) a behaviour of any kind including, in particular, things said or otherwise communicated as
well as things done, and
- A behaviour consisting of-
- (i) a single act, or
- (ii) a course of conduct
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Patterson v harvey

Settled disputes in some courts on how this act shall be applied

Essentially this showed that the accused does not have to actually cause fear in another person,
it can be reviewed as hypothetical. – section 38. ***

Rooney v brown

- Shouted abuse at officers, racial and profanity.

- When accused was prosecuted, the officers weren’t upset by behaviour, however section 38
of the act states any reasonable person, therefore he was prosecuted.

Appeal court of high court of justiciary

- Adi agame, youtube sight, would give advice on how men could approach women and
engage with them. Largely operated in Glasgow, would also have covert films of him making
this approach to random women in the street.
- BBC Scotland ran a Scotland on this and his behaviour, arguing how it is toxic behaviour and
sexualising women.
- Aftermath, arrested, put on trial for threatening or abusive behaviour. Charged under
section 38.
- Appealed to appeal court, focused on wasy sheriff behaved, hadn’t been even handed, cross
examined. Main thrust was effectively this behaviour wasn’t threatening or abusive, crown
argued it was and argued reasonable person would be threatened. However, appeal court
argued it wasn’t and quashed his convictions.
- Lord turnbull appeal court said- “it does not seem to us that a polite conversational request
or compliment can be construed as threatening merely because it is univited ir unwelcome.
There was nothing in the appellants behaviour as spoken to by complainers in chargers5, 6
and 18 which was overtly threatening or which could reasonably be construed as
threatening. Accordingly, in our opinion, the sheriff erred in failing to give effect to the
submissions of no case to answer presented on the appellants behalf in respect of each of
these charges”

Punishment

Statutory offences state the maximum sentence for crime

Summary- maximum penalty is 12 months imprisonment or a fine

Indictment/solemn - maximum 5 years imprisonment

Is there a threatenin behaviour? Abusive? Mens rea, is it intended or reckless to cause fear or harm?
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Offences: Stalking- section 39

- Cambridge dictionary defines stalking as: “the crime of illegally following or watching
someone over a period of time”
- However, in practice stalking behaviours range far more widely beyond following or
watching victims. Perpetrators are considerably more creative
- Scottish womens aid have described stalking as “ an invisible nightmare”
- A strong body of evidence that stalking behaviours can have a dramatic impact on its victim,
resulting in high levels of: Anxiety and stress, social isolation. Loss of earnings.

Actus reas- A course of conduct that causes someone to suffer fear or alarm

Mens rea- Have to prove they intended to cause fear or alarm, or there is a recklessness test that
they ought to have known their behaviour would’ve caused alarm

Defences

- If the accused can prove that what they did is authorised by any piece of legislation or
dimention of the common law- they wont be convicted of stalking
- The behaviour was engaged in the behaviour of protecting or preventing crime- police
putting a tracker on a car to track suspect. However can apply to civilians, example spying on
neighbours because of suspecting crimes going on
- Reasonable defensive

Course of conduct

Conduct means- section 39

- Following
- Contactings or attempting contact
- Publishing any statement or other material: relation or purporting to relate to person or any
other person, purporting to originate from person or any other person.
- Monitoring the use of persons internet, email or any form of electronic communication.
- Entering premises
- Loitering in any place
- Interfering with any property or possession
- Spying
- Acting in any other way that reasonable person would expect would cause alarm or fear