Scotland And Actus Reus
In its most basic terms, a crime occurs when someone carries out a wrongful act (i.e. the actus reus) at the same time as having a wrongful state of mind (i.e. the mens rea). The basic equation can be stated as: Actus Reus + Mens Rea = crime. The behavioural and mental elements of the crime must happen at the same time. There cannot be a gap between the two. For example, at the time the accused caused a death of the victim, he surely intended to or wanted to kill that person. In this essay, I will indicate and explain the significance of an accused person’s intentions in relation to the criminal law of Scotland. In doing so, I will compare this with a person’s reason for acting they did (assuming the reason is known).
Actus Reus
Actus reus is used to denote the physical element of a crime other than the state of mind of the defendant. The accused must have performed an act which is forbidden by law. It includes the conduct, omission, or situation, which, if accompanied by the appropriate mens rea, would result in criminal responsibility. The Actus reus must be voluntary.
Hogg v MacPherson 1928 – Driver of a van driving on street on a windy …show more content…
day, due to violent gust of wind his van blew over. The van stroke and broke the street lamp, under the legislation in force at that time he was convicted of damage and obliged to make compensation. He appealed the case. The appeal court accepted that he could not have avoided causing the damage and appeal upheld. The Judge stated that it wasn’t his act at all and either negligence or accidental, thus it was not voluntary.
Example of where no mens rea is required;
Misuse of drugs act 1971, s5(1)
“subject to any regulations under section 7 of this act… it shall not be lawful; for a person to have a controlled drug in his possession.” Where mens rea is required; Criminal law (Consolidation) (Scotland) Act 1995, s52
“any person who, without reasonable excuse, wilfully or recklessly destroys or damages any property belonging to another shall be guilty of the offence of vandalism.”
Here the “Actus reus” is the actual damage to the property and the “Mens rea” is wilfulness or recklessness. In both examples above, Parliament has chosen to agree that men rea is necessary.
Mens Rea
‘Actus non facit reum nisi mens sit rea.’
(Conduct does not make a man guilty unless he has a guilty mind.)
Guilt may be said to justify the imposition of punishment. Mens rea is a technical, English term. Still, in modern usage it is preferred to the Scottish term: Dole. It is fair to say that mens rea is not now regarded as always being closely linked to moral wickedness.
There are three types of Mens rea:
• Intention
• Recklessness
• Negligence
Intention – foresight and desire
Intention requires the uppermost degree of fault of all the points of mens rea. A person who intends to commit a crime, can generally be said to be more culpable than one who acts recklessly. http://e-lawresources.co.uk/Mens-rea-intention.php Desire does not assume pleasure. "An 'intention' to my mind connotes a state of affairs in which the party ‘intending’… does more than merely contemplate; it connotes a state of affairs which, on the contrary, he decides, as far as in him lies, to bring about, and which.... he has a reasonable prospect of being able to bring about, by his act of volition."
Almost, intention will be incidental from the evidence. In some examples, certain knowledge will be required whilst in others,' wilful blindness' will serve.
If people resort to the use of deadly weapons of this kind (knives, pokers, hatches), they are not permitted to say ‘we didn’t mean to kill him’. Argument to be made here is that the more dangerous to life a weapon is, the more likely its use will be understood as an intention to kill or ‘wicked recklessness are mens rea for murder.
Latta v. Herron (1967) SCCR Supp. 18. In this case, the accused appealed against his conviction of the reset of two guns. The Sheriff had accepted that the accused was not conscious that the guns he had brought were stolen. However, the full circumstances of whom the guns were bought from and where this took place etc., raised the inference that the guns had been dishonestly obtained and the accused had ’wilfully blinded himself to the obvious. His appeal was dismissed.
It is vital to highlight that ‘intention’ and ‘motive’ are both different concerns: ‘Intention’ is about how a crime was committed, whereas ‘Motive’ is about why the crime is committed.
"The motive may remain a mystery, while the murder is an accomplished fact."
Thus, a person who kills a loved one dying from a terminal illness, to release pain and misery, may well act out of good reasons. Nonetheless, this doesn't prevent them having the necessary intention to kill.
This is highlighted in, R v Inglis [2011] 1 WLR 1110 - The accuser appealed against her conviction for murdering her son Thomas. Thomas had suffered serious head injuries when he had fallen out of an ambulance. He had undergone lifesaving surgery which removed part of his skull which resulted in severe head and facial disfigurement. He was in a vegetative state but doctors were hopeful that he would recover. The appellant, however, was convinced that his vegetative state was lasting. She became obsessive and believed he was in pain and wanted to end his suffering. She injected him with a lethal dose of heroin with the intention to kill. She appealed against her conviction. Her conviction was upheld.
Lord Chief Justice on the issue of mercy killings: “Therefore, we must underline that the law of murder does not distinguish between murder committed for malevolent reasons and murder motivated by familial love. Subject to well established partial defences, like provocation or diminished responsibility, mercy killing is murder."
On the issue of euthanasia, “Until Parliament decides otherwise, the law recognises a distinction between the withdrawal of treatment supporting life, which, subject to stringent conditions, may be lawful, and the active termination of life, which is unlawful.”
Recklessness
Foresight can occur without intention. A man can predict the costs of his conduct yet not desire these significances. Recklessness is the conscious taking of an unjustified risk, to establish recklessness, the court imposes an objective test. The relationship between 'recklessness’ and 'negligence' should be considered.
The reason that it is permissible in our law is that in many cases it may not be possible to prove what was in the accused's mind at the time, but the degree of recklessness in his acting’, as proved by what he did, may be adequate to establish proof of the wilful act on his part which caused the loss of life.
This can be done through consideration of the following case; Gizzi and Another v Tudhope (1983) - two men had been convicted of the reckless discharge of firearm and appealed their convictions. They had gone clay pigeon shooting and discharged their shotguns over an area which was screened by trees. A few workmen in the area were injured. The judge on appeal stated that they fired their shotguns in an area where members of the public might be and they had done nothing to check that no one was within range at the
time.
Negligence – lack of foresight
The law of negligence should be measured in its civil context. Actions may be followed in relation to car accidents, medical disasters etc. In these following cases, where liability is established the court will grant compensation. As in the civil law, the criminal courts adopt a ‘reasonableness test’.
Someone will be negligent concerning the consequences of their actions when he does not foresee the possibility of those consequences occurring but, if he had acted reasonably, he ought to have foreseen those consequences.
Although 'Recklessness' and 'negligence', are superficially similar, they may hence be contrasted.
Scottish law commissions – THE MENTAL ELEMENT IN CRIME REPORT ON A REFERENCE UNDER SECTION 3(l)(e)
OF THE LAW COMMISSIONS ACT 1965
4.2 “The proposed definition of intention is stated in paragraph 99(1)of the Law Commission Report and is as follows: "A person should be regarded as intending a particular result of his conduct if, but only if, either he actually intends that result or he has no substantial doubt that the conduct will have that result
The intention of an accused person as well as the reason for their acting are both crucial factors to consider when making decisions in regards to the crime committed by the accused under the criminal law in Scotland.
Actus Reus
Actus reus is used to denote the physical element of a crime other than the state of mind of the defendant. The accused must have performed an act which is forbidden by law. It includes the conduct, omission, or situation, which, if accompanied by the appropriate mens rea, would result in criminal responsibility. The Actus reus must be voluntary.
Hogg v MacPherson 1928 – Driver of a van driving on street on a windy …show more content…
day, due to violent gust of wind his van blew over. The van stroke and broke the street lamp, under the legislation in force at that time he was convicted of damage and obliged to make compensation. He appealed the case. The appeal court accepted that he could not have avoided causing the damage and appeal upheld. The Judge stated that it wasn’t his act at all and either negligence or accidental, thus it was not voluntary.
Example of where no mens rea is required;
Misuse of drugs act 1971, s5(1)
“subject to any regulations under section 7 of this act… it shall not be lawful; for a person to have a controlled drug in his possession.” Where mens rea is required; Criminal law (Consolidation) (Scotland) Act 1995, s52
“any person who, without reasonable excuse, wilfully or recklessly destroys or damages any property belonging to another shall be guilty of the offence of vandalism.”
Here the “Actus reus” is the actual damage to the property and the “Mens rea” is wilfulness or recklessness. In both examples above, Parliament has chosen to agree that men rea is necessary.
Mens Rea
‘Actus non facit reum nisi mens sit rea.’
(Conduct does not make a man guilty unless he has a guilty mind.)
Guilt may be said to justify the imposition of punishment. Mens rea is a technical, English term. Still, in modern usage it is preferred to the Scottish term: Dole. It is fair to say that mens rea is not now regarded as always being closely linked to moral wickedness.
There are three types of Mens rea:
• Intention
• Recklessness
• Negligence
Intention – foresight and desire
Intention requires the uppermost degree of fault of all the points of mens rea. A person who intends to commit a crime, can generally be said to be more culpable than one who acts recklessly. http://e-lawresources.co.uk/Mens-rea-intention.php Desire does not assume pleasure. "An 'intention' to my mind connotes a state of affairs in which the party ‘intending’… does more than merely contemplate; it connotes a state of affairs which, on the contrary, he decides, as far as in him lies, to bring about, and which.... he has a reasonable prospect of being able to bring about, by his act of volition."
Almost, intention will be incidental from the evidence. In some examples, certain knowledge will be required whilst in others,' wilful blindness' will serve.
If people resort to the use of deadly weapons of this kind (knives, pokers, hatches), they are not permitted to say ‘we didn’t mean to kill him’. Argument to be made here is that the more dangerous to life a weapon is, the more likely its use will be understood as an intention to kill or ‘wicked recklessness are mens rea for murder.
Latta v. Herron (1967) SCCR Supp. 18. In this case, the accused appealed against his conviction of the reset of two guns. The Sheriff had accepted that the accused was not conscious that the guns he had brought were stolen. However, the full circumstances of whom the guns were bought from and where this took place etc., raised the inference that the guns had been dishonestly obtained and the accused had ’wilfully blinded himself to the obvious. His appeal was dismissed.
It is vital to highlight that ‘intention’ and ‘motive’ are both different concerns: ‘Intention’ is about how a crime was committed, whereas ‘Motive’ is about why the crime is committed.
"The motive may remain a mystery, while the murder is an accomplished fact."
Thus, a person who kills a loved one dying from a terminal illness, to release pain and misery, may well act out of good reasons. Nonetheless, this doesn't prevent them having the necessary intention to kill.
This is highlighted in, R v Inglis [2011] 1 WLR 1110 - The accuser appealed against her conviction for murdering her son Thomas. Thomas had suffered serious head injuries when he had fallen out of an ambulance. He had undergone lifesaving surgery which removed part of his skull which resulted in severe head and facial disfigurement. He was in a vegetative state but doctors were hopeful that he would recover. The appellant, however, was convinced that his vegetative state was lasting. She became obsessive and believed he was in pain and wanted to end his suffering. She injected him with a lethal dose of heroin with the intention to kill. She appealed against her conviction. Her conviction was upheld.
Lord Chief Justice on the issue of mercy killings: “Therefore, we must underline that the law of murder does not distinguish between murder committed for malevolent reasons and murder motivated by familial love. Subject to well established partial defences, like provocation or diminished responsibility, mercy killing is murder."
On the issue of euthanasia, “Until Parliament decides otherwise, the law recognises a distinction between the withdrawal of treatment supporting life, which, subject to stringent conditions, may be lawful, and the active termination of life, which is unlawful.”
Recklessness
Foresight can occur without intention. A man can predict the costs of his conduct yet not desire these significances. Recklessness is the conscious taking of an unjustified risk, to establish recklessness, the court imposes an objective test. The relationship between 'recklessness’ and 'negligence' should be considered.
The reason that it is permissible in our law is that in many cases it may not be possible to prove what was in the accused's mind at the time, but the degree of recklessness in his acting’, as proved by what he did, may be adequate to establish proof of the wilful act on his part which caused the loss of life.
This can be done through consideration of the following case; Gizzi and Another v Tudhope (1983) - two men had been convicted of the reckless discharge of firearm and appealed their convictions. They had gone clay pigeon shooting and discharged their shotguns over an area which was screened by trees. A few workmen in the area were injured. The judge on appeal stated that they fired their shotguns in an area where members of the public might be and they had done nothing to check that no one was within range at the
time.
Negligence – lack of foresight
The law of negligence should be measured in its civil context. Actions may be followed in relation to car accidents, medical disasters etc. In these following cases, where liability is established the court will grant compensation. As in the civil law, the criminal courts adopt a ‘reasonableness test’.
Someone will be negligent concerning the consequences of their actions when he does not foresee the possibility of those consequences occurring but, if he had acted reasonably, he ought to have foreseen those consequences.
Although 'Recklessness' and 'negligence', are superficially similar, they may hence be contrasted.
Scottish law commissions – THE MENTAL ELEMENT IN CRIME REPORT ON A REFERENCE UNDER SECTION 3(l)(e)
OF THE LAW COMMISSIONS ACT 1965
4.2 “The proposed definition of intention is stated in paragraph 99(1)of the Law Commission Report and is as follows: "A person should be regarded as intending a particular result of his conduct if, but only if, either he actually intends that result or he has no substantial doubt that the conduct will have that result
The intention of an accused person as well as the reason for their acting are both crucial factors to consider when making decisions in regards to the crime committed by the accused under the criminal law in Scotland.