CRIMINAL LAW Basics Including Mens Rea Actus Reus

CRIMINAL LAW Basics - Including Mens Rea & Actus Reus Andrew Heron

Criminal Law. . . �How does it Differ from Civil Law? - Who does it involve? - Which Courts? - Where can we find the basis for Criminal Laws?

Criminal Law. . . � Criminal law is the principal means by which the government identifies and criminalises behaviour that is considered wrong, damaging to individuals or to society as a whole or is otherwise unacceptable. � One of the notable characteristics of Scots criminal law is that it is based on what is known as common law. This means that the definitions of crimes and offences arise from precedent (successive decisions of the superior criminal courts) or from the writings of highly respected legal commentators known as the “institutional writers” whose views are recorded authoritative status by the courts, legal scholars and the legal profession.

Criminal Law. . . �However, Scotland has developed a ‘mixed’ system of criminal law with an increasing number of crimes and offences appearing in the statute books. Some of these statutory crimes and offences are of considerable importance such as those relating to the use of illicit drugs. �Many statutory offences are shared with England & Wales through UK wide legislation such as road traffic law and laws relating to issues such as environmental pollution.

Our Unique System. . . �Scots Criminal Law remains largely ‘uncodified’, meaning a number of offences have their basis in ‘common law’ and are not specified in a ‘Penal Code’ or Act of Parliament. . Examples of these crimes include: Ø Murder Ø Reset Ø Theft (Rape was previously a 'common law’ crime but has now been codified under the Sexual Offences (Scotland) Act 2009. )

�The principal fundamentals of Scots criminal law are the concepts of Actus Reus and Mens Rea, derived from the basic rule of actus non facit reum nisi mens sit rea - conduct does not make a man guilty unless his mind is also guilty. So. . In order to establish ‘guilt’ on the part of the ‘accused’, the prosecution must establish and prove the following. . .

Actus Reus and Mens Rea. . . 1. Actus Reus = The Criminal Act (What did they actually do? )

Actus Reus and Mens Rea. . . 2. Mens Rea = The Criminal Mind (The Evil Intent)

Actus Reus and Mens Rea. . . �Actus Reus + Mens Rea = Crime Committed -----------------------------Actus Reus There are 2 types of Actus Reus: Positive acts – The overt part must be voluntary 2. Omissions – The failure to do something when you had the duty to do so. . 1.

Actus Reus. . . has 4 main areas. . . 1. Voluntary Act 2. Non-Voluntary Act 3. Omission 4. Causation --------------------

1. Voluntary Act. . . Case – Dewar v HMA – Coffin Lids! The accused is aware the act is ‘criminal’.

2. Non-Voluntary Act. . . Can be seen in the form of (i) Automatism and (ii) Reflex Actions. . . (i) Essentially, we are talking here about when people are not in control of their actions…. Case – Simon Fraser 1878 – The sleepwalking father. . . Not Guilty. . But a great deal of persuasive evidence will be required – Medical Reports, Witness evidence etc. Has Anyone seen the Movie ‘Side Effects’ with Jude Law?

Non-Voluntary Act. . . However, the defence of Automatism is strict and it requires that the external factor: a. must not be self-inflicted b. it must be one which the accused was not bound to foresee c. It must have resulted in a total alienation of reason amounting in a complete absence of self control See Cases – Ross v HMA 1991. . . LSD slipped in to drink Brennan v HMA 1977… Voluntary intoxication not a defence

Non Voluntary Acts cont. . . �The Reflex action is self explanatory and can be illustrated by the following Cases – Hill v Baxter(1958) – Swarm of Bees entered car resulting in a road traffic offence. Not Guilty as a result of the reflex action. No control over instinctive reaction. Contrast with Jessop v Johnstone (1991). . . Flying Jotters. .

3. Omission. . . Failure to act when you have a duty to do so can result in criminal prosecution. . . The important aspect here is that you must have a duty to act before you can be held liable… the duty can arise under following circumstances. . � DUTY ARISING FROM STATUTE Liability for failing to act will be imposed where the defendant can be shown to have been under a statutory duty to take positive action. A leading example of such a case is provided by the Children and Young Persons Act 1933, which creates the offence of wilfully neglecting a child.

Omission… � DUTY ARISING FROM A CONTRACT Where a person is under a positive duty to act because of his obligations under a contract, his failure to perform the contractual duty in question can form the basis of criminal liability. See: R v Pittwood (1902) 19 TLR 37 – Pittwood in charge of closing gates at level crossing. Crossing left open. Train killed someone. Pittwood liable for not closing gate. � PUBLIC DUTY A person in a public office may be under a public duty to care for others.

Omission… � VOLUNTARY ASSUMPTION OF RESPONSIBILITY/RELIANCE There is a common law duty of care where there is a relationship of reliance between defendant and victim. Thus if someone voluntarily assumes responsibility for another person they also assume the positive duty to act for the general welfare of that person and may be liable for omissions which prove fatal. See R v Gibbons & Proctor – Gibbons and his mistress Proctor maltreated Gibbons’ daughter. She died of starvation. Gibbons tried for and found guilty of murder. � DUTY DUE TO DEFENDANT'S PRIOR CONDUCT If the defendant accidentally commits an act that causes harm, and subsequently becomes aware of the danger he has created, there arises a duty to act reasonably to avert that danger. See Mc. Phail v Clark 1983 – Farmer burning straw…

Omission… �General rule here is that it is not a criminal offence not to act (for example) (i) to save a life, and (ii) stop a crime being committed. However…. See HMA v Kerr 1871 – accused watched a rape. Not guilty of rape but as he omitted to act, was found guilty of 'art and part’ – meaning they are guilty of aiding in the committal of the offence and can be punished as if they had committed the main offence (Criminal Procedure (Scotland) Act 1995).

4. Causation…. Causation refers to the enquiry as to whether the defendant's conduct (or omission) caused the harm or damage. Causation must be established in all result crimes. Causation in criminal liability is divided into factual causation and legal causation. Factual causation is the starting point and consists of applying the 'but for' test. In most instances, where there exist no complicating factors, factual causation on its own will suffice to establish causation. However, in some circumstances it will also be necessary to consider legal causation. Under legal causation the result must be caused by a culpable act, there is no requirement that the act of the defendant was the only cause, there must be no novus actus interveniens and the defendant must take his victim as he finds him (thin skull rule).

4. Causation… �Generally speaking, we are considering the 'but for’ test… asking the question – but for the actions of the accused, would the crime have been committed? In Groups, establish a description of the following legal doctrines (all linked to Causation): 1) Thin skull rule 2) Novus actus interveniens Illustrate your descriptions with relevant case law…