Criminal Law Cases

R v Brown

R v Brown

Group of men engaging consensually in sadomasochistic sex. Cannot consent to bodily harm. English case likely to be upheld in Scotland.

R v Wilson

Man scalded wife with an iron. Deemed not assault.

Smith v Donnelly

Trespassers at Faslane entered site unlawfully to protest against nuclear weapons. 2 ways of imposing breach of peace as a criminal offence: severe enough to alarm ordinary people and threaten serious disturbance to the community.

McConanchie v PF Aberdeen

Old man winking at young boy on the bus and tried to give him his number didn’t meet both parts of the test so was not breach of the peace.

Wotherspoon v Orr

Man in window wearing female underwear and rubbing his nipples. Wasn’t deemed breach of the peace as there was no public element.

HMA v Fraser

Man fractured skull of baby because he thought he was being attacked by an animal while sleeping - baby died. Acquitted on grounds of diminished responsibility on condition he promised to sleep alone.

Ross v HMA

Sets out test for total alienation of reason amounting to a complete absence of self control.

Brennan v HMA

Total alienation cannot be self induced for example, alcohol or drugs.

Ryan v the Queen

Reflex action - accused in armed robbery pointed gun at someone and the victim moved suddenly, so tried to argue shooting was a reflex action. Due to safety catch being off, he had to hold responsibility.

Hugh Mitchell

Woman attacked by husband wile holding baby and squeezed baby so hard it died. Her actions killed the baby but was the innocent agent of the husband.

R v Larsonneur

Right to remain in UK expired so was deported back to Ireland but Ireland deported her back to UK. On arrival in the UK she was arrested as an illegal alien even though she wasn’t there of her own free will. She was lawfully evicted so couldn’t plead that actions weren’t voluntary and was deemed responsible.

Fagan v MPC

defendant backed onto police officer’s foot and then asked him to wait before driving off. Flexible understanding of time; mens rea was formed when deciding to leave the car on his foot.

R v Instan

Positive duty acquired by assumed responsibility. Elderly relative comes to stay and be looked after, then aren’t looked after as much so became unwell and died. Failure to act in accordance with the duty.

McPhail v Clark

Farmer set fire to straw in field, smoke went onto the road and endangered motorists.

R v Pittwood

Failure to perform contractual duty hold you liable. Railway employee left a gate open to railway line and someone was injured. A way of being guilty of an offence by ommission.

Hendry v HMA

Take victim as you find them. Accused assaulted a victim with minor injuries and they died of a heart attack. Despite the pre-existing condition, consumption of alcohol and climbing a flight of stairs the accused was still responsible for the death.

Bird v HMA

Man struck woman and followed her to her car causing fear and alarm. Pulled her out of the car causing minor injuries (she had pre-existing heart disease) but later she died of emotional shock. Thin skull rule.

R v Blaue

Victim declined a blood transfusion due to being a Jehovah’s Witness. Court held stabbing was still the cause of death as the religious beliefs didn’t break the chain of causation. English case.

Patrick Slaven

Victim fell over a cliff running away from attacker and it was held the conduct of the accused caused her death.

McDonald v HMA

Culpable homicide by assault. Left victim in locked room after assault, intending to come back later while he attempted to escape through window and fell to his death. No intention to kill but causal link between assault and the death.

Khaliq v HMA

Culpably supplying children with glue sniffing kits. Voluntary acts of children didn’t break the causal act of supplying the substance.

Lord Advocate’s reference (No1 of 1994)

Supply of amphetamines. The person giving the drugs is still liable even if the other person takes the drugs on their own accord. Scottish courts are very firm on this.

MacAngus v HMA

Supply of ketamine; court held this was reckless conduct resulting in death. Despite the administration of drugs being autonomous by the victim the accused is held liable.

R v Wallace

English prosecution for homicide by causing another’s suicide.

R v Pagett

Defendant shot at police officers, used a 16 year old girl as a shield when they returned fire. Argued the police killed her, but court held that his act caused her death and police were carrying out their legal duty.

R v Jordan

Medical treatment must be palpably wrong to amount to breaking the chain of causation.

Roberts v Hamilton

Convicted of assaulting someone with a stick and hit a different person than he intended. Tried to argue that transfer of mens rea couldn’t apply but court held him guilty of assault.

Byrne v HMA

Accused charged with wilful fire raising for setting fire to a bed and it spread. Can only be committed intentionally but was deemed reckless fire raising.

Palazzo v Copeland

Set off a firearm to disperse commotion in the street. Argued his motive was positive' - trying to end the other breach of the peace. Held his intention was to cause fear and alarm.

Cameron v Maguire

Utter disregard to the consequences. Accused firing a rifle in direction of woodland without checking it was safe and people were walking past - this was an endangerment to the lieges.

Cawthorne v HMA

Entered into room and shot gun to cause fear. Charged with attempted murder despite no one being killed. Intention to kill was enough. Mens rea for attempts liability is the same as the full offence.

Halliday v HMA

Shook hands over dead body they just killed. Accused appealed on basis that wicked recklessness mens rea had to be relevant at time of offence and this was after. Appeal was rejected as the actions after were deemed relevant.

HMA v Purcell

Intention to cause physical injury and wicked disregard of possible fatal consequences is required for wicked recklessness. Man driving at speed knocked down a child who died. Charged with murder as driving at this speed was wickedly reckless. Accused stated there was no intention here - court took a narrow approach.

Petto v HMA

Wilful (intentional) fire-raising is separate to reckless fire-raising. Accused stabbed a man to death then returned and poured petrol through the letterbox and set fire to the flat. Fire spread to next door and neighbour died. Accused argued he had no intention of physical harm to the neighbour. Held wilful fire-raising is so dangerous in and of itself that there is an inherent intention to cause physical harm.

Galbraith v HMA

Woman experienced domestic violence and suffered PTSD. Killed her husband and plead diminished responsibility but mental illness didn’t fall under the defence at the time so it was rejected. On appal the court held it was substantial impairment on her ability to control conduct. Had to plead diminished responsibility instead of provocation as it wasn’t an immediate reaction.

Drury v HMA

Accused broke up with his partner and then went round to her house and saw a man leaving. He asked her what was going on, she replied ‘what do you think?’ He bludgeoned her to death with a hammer. Claimed defence of provocation by sexual infidelity.

Cosgrove v HMA

Accused asked a man if he abused a child, man laughed in response and raised his eyebrows. Accused killed him and was convicted of murder - denied defence of provocation as his actions were not proportionate.

Sutherland v HMA

Set fire to house to claim insurance money; convicted of unlawful act culpable homicide as someone was killed in the fire. Court took serious view as to deliberate setting of fires.

MacAngus v HMA

Voluntary taking of drugs doesn’t break the chain of causation, supplier is head responsible for death. Doesn’t count as an unlawful act for the purpose of culpable homicide.

Paton v HMA

Indifference to the consequences needs to be proven for culpable homicide.

Transco plc v HMA (No1)

Gas explosion due to poor inspections. Companies can be guilty of culpable homicide if there is an individual who can take responsibility as the directing mind of the company. Convicted of health and safety offence but company was too big to identify a person who they could attach liability of culpable homicide to.

Frame v Kennedy

Police stripper carrying batons as part of act. Entitled to defence of reasonable excuse for offence of possession.

Examples of assault in old cases.

• Whipping a pony so rider is thrown off

• Spitting

• Cutting off a sleeping woman’s hair

• Setting an animal on a person

• Gestures threatening violence resulting in bodily fear

Lord Advocate’s Reference (No2 of 1992)

Accused entered shop holding imitation gun and demanded for contents of the till. Didn’t realise there were others in shop and ran out. Charged with assault; accused argued he was joking. High court held the joke was relevant to motive rather than intention. He was acting deliberately so had the necessary mens rea for assault.

Smart v HMA

Evil intent means intention. Square go case - consent is not a defence to assault in Scotland.

Stewart v Nisbet

Police officer appellant argued actions of handcuffing and wrapping sellotape around woman’s head was horseplay and she was a consenting party. No defence of consent.

Normand v Robinson

Rave in warehouse with no electricity, lit with candles, no fire alarm of escape, no running water and holes in the floor. Recklessly endangered the lives of those in attendance and court held actions sufficiently reckless for endangering of the lieges.

Robertson v Klos

Drove 156mph on road with limit of 70mph whilst on phone and steering with one hand. Culpable and reckless conduct was easier to prove if there were people on the road but there were lack of witnesses. Foreseeable danger so held to be culpable and reckless conduct.

Normand v Morrison

Knew her bag was going to be searched but objected to having sharp objects despite having an unprotected needle. Charged with culpably and recklessly denying there was a needle in the bag - description; not a named offence. No description as to if there was knowledge of the needle.

Kimmins v Normand

Police were searching accused, they knowingly had unguarded needle and syringe in pocket and were charged with culpable and reckless utter disregard to safety of the lieges. Charge specified knowledge of the needle.

Donaldson v Normand

Prison guard was going to search, responded that he had no sharp instruments. Charged with culpably and recklessly denying being in possession of any instrument as he had an unguarded needle. Intoxication of heroin was argued, but was not a valid defence.

Mallin v Clark

Charged with culpably and recklessly concealing a used syringe as they failed to disclose to police officers. Appeal was permitted as there is no obligation to disclose sharps and the accused provided a non-committal answer; there was no direct denial.

Gizzi v Tudhope

Accused shooting clay pigeons, failed to check surroundings and there were men working in the woods behind and a man and vehicle were shot. Accused was charged with culpable and reckless discharge of firearms to the danger of the lieges.

Campbell v HMA

Farmer discharged shot at group of young men on his farmland. Charged with culpable and reckless discharge of a firearm to someone’s injury.

HMA v Harris

Bouncer got hold of woman who he was trying to kick out club and threw her down the stairs, she landed on road and was injured by oncoming traffic. Charged with reckless endangerment - didn’t need to specify endangerment of lieges.

HMA v Kelly unreported

Sexual transmission of HIV to partner. If accused had intention it would be assault but lack thereof meant it was culpable and reckless injury. Can still be charged even if the disease isn’t actually transmitted.

Procurator Fiscal, Edinburgh v Aziz

Mens rea for coercing/compelling sexual activity. Taxi driver suggested they could pay with sex, reasonably inferred that his primary purpose was to receive sexual gratification.

KT v PF Falkirk

Accused was observing and recording his partner while she was sleeping in underwear. Took pictures of her breasts without consent with intention to look at these later. Court held that the observation couldn’t infer purpose of sexual gratification as they lived together and was likely he would see her in that situation. Charged with voyeurism for the recording as it was reasonable to infer the purpose of sexual gratification for crime of recording.

HMA v SM

Complainer initiated sexual activity to diffuse situation as she was injured and afraid. No notion of consent can be drawn from reluctant acquiescence in the face of pressure.

HMA v MMI

Complainer consumed half a bottle of vodka, 9 beers, and a gin and tonic. Couldn’t remember having sex with the accused but medical evidence proved intercourse had occurred. Bartender gave witness statement that she was clearly not with it. Taxi driver refused to take her to accused’s hotel due to level of intoxication so informed the police. Hotel CCTV confirmed she had a pale expression, was stumbling. No capacity to give consent.

R v Devenauld

16 year old boy broke up with his girlfriend. Girlfriend’s dad assumed persona of a 20 year old girl online and persuaded him to masturbate on camera to humiliate him for breaking up with his daughter. Purpose of the activity was for the ‘20 year old’ so agreeing under deception - no consent.

R (Monica) v DPP

Undercover police pretended to be an environmentalist and made up a fake life.

R v McNally

Person presented as male, but biologically female. Complainant didn’t know this and engaged in sexual activity. Court held that gender changes the nature of the sexual activity so there was an element of deception.

Wilson 2013 unreported

Gender history is a relevant consideration for prosecution when the complainer finds the birth gender out afterwards and wouldn’t have consented to the sexual activity had they known. Doesn’t mean trans people will be prosecuted but court holds that gender changes the sexual nature of the act.

DPP v Morgan

Defendant told 3 other men that they could have sex with his wife. Consent can be expressed via a third party eg. sign language through an interpreter but not in this context - slight but important difference.

Maqsood v HMA

Accused charged with raping a woman who was too drunk to give consent. Court said reasonable belief to consent doesn’t need to be proven separately, it can be inferred from the circumstances.

Graham v HMA

Lack of reasonable belief is an element of the offence but doesn’t require separate formal evidence. Usually considered at same time as consent.

Nyiam v HMA

Convicted of raping two separate complainers who were too intoxicated to consent. Accused argued they were willing participants, impossible to argue he was mistaken as he was adamant they were consenting.

LW v HMA

Sleeping complainer, even if the accused thought she was awake there are 2 layers; the facts themselves and then reasonable consent.

R v G

15 year old had sex with a 12 year old who he thought was also 15, believed there was consent. Dissenting judges thought prosecution infringed his Article 8 rights but majority took opposite view.

AB v HMA

2 exceptions to the defence of reasonable belief the complainer was over 16: if the accused has previously been charged with a sexual offence or they have a risk of sexual harm order against the accused. UKSC held this was not law as it interferes with Article 8. Previous criminal history is open to the courts if justification is to protect others and is proportionate. Link between protecting children and limiting the defence wasn’t strong enough.

Stubing v Germany

European Court had to decide whether criminalising incest breaches Article 8. Case concerned a brother and sister raised separately who engaged in sexual activity as adults. Sensitive matters of morality are open for the state to choose.

Webster v Dominick

Abolished common law crime of shameless indecency. Behaviour previously described as this remain illegal under public indecency such as indecent exposure (sex in public).

John Smith

Found money in wallet lying in the street. Theft by finding - appropriating the property for his own uses.

Black v Carmichael

Leading authority for theft. Parked on private property so owners clamped the car and attached a note saying they will release if they pay £45. Charged with theft as actus reus of appropriation occurred and mens rea of intention to deprive was enough.

Dewar v HMA

Must be property capable of being owned in order to be theft. Manager of crematorium stole two coffins, removing the bodies and retaining the coffins for future use. Court held once the bodies had been buried then they couldn’t be stolen.

HMA v Mackenzies

Property must be corporeal, cannot be information. Accused charged with stealing a book of chemical recipes and made copies to sell. Theft charge was relevant but only to the tangible book; the information in the copies couldn’t amount to a crime.

Mackenzie v MacLean

Accused advised to throw away damaged beer cans, passers by took some of them out of the skip. No need to prove who the property belongs to, just that it doesn’t belong to the accused. Property belonged to the Crown but absence of dishonesty meant they weren’t guilty of theft.

Butler v Richardson

Conviction of theft was quashed as nothing about the condition of the wire suggested that it wasn’t just thrown away. If the prosecution can’t show the property as indicative that someone is coming back then not likely to be theft.

Milne v Tudhope

Owner of cottage dissatisfied with repairs carried out by builders and asked them to correct their work free of charge. Builders removed items from the house as ransom to make owners pay for the repairs, and they were convicted of theft. Court held the temporary intention to deprive was sufficient.

Kidston v Annan

Accused advertised free estimates for repairs, instead went ahead and carried out repairs and refused to give back until paid for. Actions were sufficiently nefarious to constitute theft.

Fowler v O’Brien

Deprivation of property indefinitely constitutes theft. Asked for a shot of the bike but made no steps to return it with no further contact - established mens rea of theft.

Lauder v HMA

Employee taking items from clothing company to sell on eBay. Claimed he thought stakeholders knew this. Argued that theft required dishonest intention; he believed there was consent so should have been acquitted. Court held jury should have been told there was a requirement for dishonesty.

Edgar v MacKay

Solicitor trying to recover money for clients but didn’t respond for a long time, clients decided to stop working. Solicitor collected money but didn’t tell clients. Convicted of embezzlement as wasn’t honest with actions.

Kent v HMA

Consignment of apple puree which was rejected for poor quality, was sold on. Buyers weren’t authorised to dispose of the goods so couldn’t be prosecuted with embezzlement.

Allenby v HMA

Fish salesman who collected money from fish trawlers and made a communal fund, giving advances. No dishonest intention here, just deviated from standard practice.

Moore v HMA

Embezzlement requires dishonesty. Company director and wife had 50/50 shares and he was withdrawing money from company’s bank account for gambling. Trying to strip company of assets wo when he divorced his wife she wouldn’t have access to the money. Patterns showed elements of concealment so court held that mens rea of dishonesty was satisfied.

McCraw v Murphy

Mens rea requires intention. Accused was erratic in use of company credit card and couldn’t explain the spending. Deemed dishonest and mens rea for embezzlement was established.

O’Neill v HMA

Doesn’t need to be a free standing assault charge to establish robbery. Assault couldn’t be proved but snatching of handbag was violent enough for robbery conviction.

Tapsell v Prentice

Accused claimed to be a member of a group gypsies to encourage complainer to buy an item from her. She said she was someone she was not but court held this wasn’t fraud as it didn’t relate to the transaction.

G v HMA

Accused became pregnant and falsely misrepresented to complainer she had a termination. Made a fake Facebook about fictional surrogate and lied about giving baby to her co accused who took custody of the child. Defrauded complainer from their own child by registering the child as someone else. Criminal fraud as co-accused received PRRs and deprived child of relationship with biological father for 4 years.

Adcock v Archibald

Coal miner claimed to dig a pile of coal but it was actually done by his co-worker. Was told would get a bonus for a large amount of coal dug up. Co-worker didn’t even dig up enough coal for the bonus but the lying constituted fraud regardless if he received the bonus or not.

Mackenzie v Skeen

Fraud is a crime of intention. Accused was careless in weighing out pet food, held this didn’t show intention to defraud.

Latta v Herron

Bought two guns for half of their true value late at night. Goods weren’t honestly acquired so this was reset. Wilfully blind to suspicious sale, should have known better.

HMA v Wilson

Accused pressed emergency stop button in power plant causing significant economic loss. Despite lack of physical damage this was malicious mischief.

MacDougall v Ho

Reasonable excuse for vandalism. Man smashed windscreen of taxi as he thought it was people who vandalised his shop trying to escape.

John v Donnelly

Woman damaged fence of navy depot in a protest against nuclear weapons. Argued the weapons were illegal under international law so had a defence to the vandalism. Court re

PF Peterhead v Elrick

Accused damaged a car as she thought it was her ex’s car but it had been sold on. This was not a reasonable excuse as she would still be damaging someone’s property.

Byrne v HMA

Accused charged with wilful fire raising for setting fire to a bed which then spread. Can be wilful or culpable/reckless in relation to any property.

HMA v Doherty

Accused attacked by man with hammer but there was means of escape available. Instead of running away he stabbed and killed the man attacking him, self defence wasn’t available but provocation was. Proportionality of defence can be illustrated as ‘if someone is hit with a fist it is not appropriate to retaliate with a knife’.