SCOTTISH LAW BASICS CRIME ACTUS REUS

CRIME
INTRODUCTION: ACTUS REUS
1. CRIME NATURE
a. Actus non facit reum nisi mens sit rea – conduct does not make a man guilty without a guilty mind
b. Two elements must be proved in Scots crime:
i. Actus Reus – Wrongful Act/Physical Act ii. Mens Rea – Wrongful State of Mind/Mental Element
c. Exceptionally – some crimes (usually statutory – speeding, parking) don’t require proof of Mens Rea

2. ACTEUS REUS
a. Mere intentions do not make a criminal offence – there must be a criminal act or omission
b. Specifically, blameworthy conduct: a physical act prevented by law.
i. There are conduct crimes – eg Misuse of Drugs Act 1971 – physical act of possession of an illegal drug constitutes Actus Reus. ii. And result crimes (series of events) – a forbidden consequence results from the physical conduct (eg. A death). Usually you have to prove Mens Rea for all parts of the series of events (eg. Murder – intention to do the act and intention to cause death)

3. CONDUCT
a. Three types of conduct: Positive Act, Act of Omission, State of Affairs
i. A Positive Act
1. Voluntary acts – controlled by the actor
2. Involuntary acts – where person cannot control their actions, this is an involuntary act
a. Hogg vs McPherson (1928) External forces, such as a heavy gale, causing a horse carriage to collide with a lamp standard are an involuntary act.
b. Hugh Mitchell (1856) Woman holding her child during an attack by the defendant, squeezed it too hard and it died. Her act was involuntary and the defendant was liable for its death. Culapable homicide. 4 years penal servitude.
3. Reflex actions arern’t voluntary. They’re automatic and defensive, usually without thought though you may be in a conscious state.
a. Jessop v Johnstone (1991) Scholboy hit teacher with jotter. Teacher reacted by hitting him. However, he then hit him again. Court recosnised it was possible to instinctively react to violence and come into contact wioth another. Here. The 2nd blow was not reflexive.
b. Hill v Baxter (1958) Court concludes that if a driver as attacked by a swarm of bees coming through a car window, the reflexive action would not be a criminal act but an involuntary one. ii. An Omission to Act
1. Generally no duty to act in situation where there’s danger to another.
2. Two types:
3. ‘pure omission’ crimes, failure to do something reuired by law (eg. To report traffic accident under Road Traffic Act 1988)
4. ‘commission by omission’ – where person is under a duty to act but fails to do so to cause a legally prohibited result.
a. William Hardie (1847) Ark 247. Poor Inspector could in principle be held respo for a failure to render assistance to a woman who’d applied for poor relief and died.
5. But there are categories of situation here a duty arises:
a. Where you have been responsible for a dangerous situation – you’re liable if you fail to prevent such harm
i. HM Advocate v McPhee (1935). Defender seriously assaulted a woman and left her here she would not be found, exposed to the elem ents. She died. He was found criminally liable. ii. R v Miller (1983) 2 AC 161 Tramp squatting in abandoned house set fire to mattress, doies nothing, moves to other room. Held liable for arson on basis he had done nothing to remember the danger established by his own actions. iii. McPhail v Clarke (1982) CFarmer set hay alight in his field. A lawful and innocent act on the face of it. But black smoke blew onto a nearby road endangering the lives of motorists. He was charged and found guilty. iv. But… McCue v Currie (2004) JC 73. Accused accidentally dropped cigarette lighter while breaking into caravan, causing fire. Court declined to follow ‘Miller’ and did not hold accused guilty of culpable and reckless fireraising (but treated on the decision of an interpretation of specific statutory provision)
b. Where there’s a duty to act.
i. Bonar v McLeod (1983) Senior police officer failed to intervene when a junior officer was assaulting a prisoner in their custody. Held he was under a duty to prevent the assult and therefore was guilty of assult.
c. Close relationship between the Defender and the Victim
i. R v Instan (1983) Woman assumed care of her elderly aunt. In last 12 days of her life, lady developed gangrene and no medical help was sought. She was also starved. Niece criminally liable for her death. ii. R v Stone & Dobinson (1977) Frail sister of one defendant came to live with them. They neglected her and she died. Guilty by omission, of manslaughter, having assumed duty of care.
6. But there is generally no duty to prevent crime
i. Geo Kerr & Others. Defender neither participated nor intervened during an assault he witnessed. Held there was not duty on his part to do anything ii. HM Advocate v Kerr (1871) One of three men charged with assault to ravish. Hadn’t done anything but watched from an adjoining field. Jury directed not to convict if he had not done anything to encourage by language or presence.

iii. A State of Affairs
1. This is an actus reus
2. Normally found in statutory offence (eg. S.4(2) Road Traffic Act. Anyone in charge of a mechanically propelled vehicle on the road or public place is unfit to drive through drink and rugs is guilty of an offence.
3. Also appears in the common law crime of breach of the peace.
a. Smith (P) v Donnelly (2001)The actus reus of breach of the peace requires conduct severe enough to cause alarm to ordinary people and rthreaten serious disturbance to the community.

4. CONCURRENCE
a. Actus Reus and Mens Rea must coincide in crime if criminal liability is to be established, generally contemporaneously.
i. Thabo v R (1954) Appellants assaulted a man, believing he was dead, thre him over cliff. Evidence showed he wasn’t dead but later died of exposure. Appellants tried to argue mens rea and actus reus didn’t coincide in time. Court held they could not divide up a series of acts.