Part 3 - Criminal

• Rape


  If a person ('A'), with A's penis — (a) without another person ('B') consenting, and (b) without any reasonable belief that B consents, penetrates to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B then A commits an offence
• Definition of Penetration

  Penetration is a continuing act from entry until withdrawal of the penis
• Rape


  In a case where penetration is initially consented to but at some point of time the consent is withdrawn, penetration is a continuing act from that point of time is considered rape
• Rape


  Penis includes a surgically constructed penis if it forms part of A, having been created in the course of surgical treatment, and vagina includes a surgically constructed vagina (together with any surgically constructed vulva), if it forms part of B, having been created in the course of such treatment
• The Sexual Offences (Scotland) Act 2009 made an important change to the mental element of the crime of rape. By introducing a requirement for any belief as to consent to be reasonable, rather than honest, the Act moved from a subjective test for belief in consent to a test which was objective but which also directed attention to the steps which the actual accused took, or failed to take, to ascertain whether there was consent
• Sexual assault by penetration


  If a person ('A'), with any part of A's body or anything else — (a) without another person ('B') consenting, and (b) without any reasonable belief that B consents, penetrates sexually to any extent, either intending to do so or reckless as to whether there is penetration, the vagina or anus of B then A commits an offence
• Sexual assault by penetration

  In a case where penetration is initially consented to but at some point of time the consent is withdrawn, penetration is a continuing act from that point of time
• Sexual assault


  If a person ('A') - (a) without another person ('B') consenting, and (b) without any reasonable belief that B consents, does any of the following: (a) penetrates sexually, by any means and to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B, (b) intentionally or recklessly touches B sexually, (c) engages in any other form of sexual activity in which A, intentionally or recklessly, has physical contact (whether bodily contact or contact by means of an implement and whether or not through clothing) with B, (d) intentionally or recklessly ejaculates semen onto B, (e) intentionally or recklessly emits urine or saliva onto B sexually, then A commits an offence
• Sexual assault


  In a case where penetration is initially consented to but at some point of time the consent is withdrawn, penetration is a continuing act from that point of time
• Sexual assault


  The reference to penetration by any means is to be construed as including a reference to penetration with A's penis
• Consent


  Consent means free agreement
• Circumstances in which conduct takes place without free agreement

  • Where the conduct occurs at a time when B is incapable because of the effect of alcohol or any other substance of consenting to it, where B agrees or submits to the conduct because of violence used against B or any other person, or because of threats of violence made against B or any other person, where B agrees or submits to the conduct because B is unlawfully detained by A, where B agrees or submits to the conduct because B is mistaken, as a result of deception by A, as to the nature or purpose of the conduct, where B agrees or submits to the conduct because A induces B to agree or submit to the conduct by impersonating a person known personally to B, or where the only expression or indication of agreement to the conduct is from a person other than B
• Circumstances in which conduct takes place without free agreement

  A person is incapable, while asleep or unconscious, of consenting to any conduct
• Consent


  Consent to conduct does not of itself imply consent to any other conduct, consent to conduct may be withdrawn at any time before, or in the case of continuing conduct, during, the conduct, and if the conduct takes place, or continues to take place, after consent has been withdrawn, it takes place, or continues to take place, without consent
• Reasonable belief


  In determining whether a person's belief as to consent or knowledge was reasonable, regard is to be had to whether the person took any steps to ascertain whether there was consent or, as the case may be, knowledge; and if so, to what those steps were
• Incest


  Any male person who has sexual intercourse with a person related to him in a degree specified in column 1 of the Table, or any female person who has sexual intercourse with a person related to her in a degree specified in column 2 of the Table, shall be guilty of incest, unless the accused proves that they did not know and had no reason to suspect that the person with whom they had sexual intercourse was related in a degree so specified, did not consent to have sexual intercourse, or were married to that person at the time when the sexual intercourse took place, by a marriage entered into outside Scotland and recognised as valid by Scots law
• Homicide


  1. Murder 2. Culpable homicide 3. Road traffic homicides
• Murder


  Causing the death of another human being, having (wickedly) intended to kill or through "wicked recklessness"
• Drury v. H.M. Advocate 2001 SCCR 583: '"wicked intent to kill"'
• H.M. Advocate v. Purcell 2008 JC 131: '"wicked recklessness"'
• Petto v. H.M. Advocate 2012 JC 105: 'Foresight of consequences = intent to kill'
• Voluntary culpable homicide


  Intentional killing - but due to provocation or diminished responsibility
• Involuntary culpable homicide


  Causing the death of another human being, with a mens rea that falls short of murder, but is nonetheless regarded as criminally culpable
• Unlawful act, involuntary culpable homicide


  • H.M. Advocate v. Robertson and Donoghue (1945, unreported)
• Lawful act, involuntary culpable homicide


  • Tomney v. H.M. Advocate [2012] HCJAC 138
• Road Traffic homicide


  • causing death by dangerous driving - causing death by driving without due care and attention - causing death by driving while unlicensed, disqualified or uninsured
• Corporate liability and corporate homicide

  Charge of culpable homicide against a company
• Corporate Manslaughter and Corporate Homicide Act 2007

  
  

  S. 1(1): "An organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised– (a) causes a person's death, and (b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased."
• Corporate Manslaughter and Corporate Homicide Act 2007

  
  

  S. 1(4) "For the purposes of this Act – ... (b) a breach of a duty of care by an organisation is a 'gross' breach if the conduct alleged to amount to a breach of that duty falls far below what can reasonably be expected of the organisation in the circumstances (5) The offence under this section is called – .... (b) corporate homicide, in so far as it is an offence under the law of Scotland."
• Assault


  An attack on the physical person of another done with intent to cause personal injury, (or intending to place that person in a state of fear or alarm for his/her safety)
• Assault


  • Roberts v. Hamilton 1989 JC 9: transferred intent

  John Roy 1839 Bell's Notes 88: no intent to cause injury

  Smart v. H.M. Advocate 1975 JC 30; 1975 SLT 65: consent is no defence

  R v. Brown [1994] 1 AC 212: sado-masochism

  Stewart v Nisbet 2013 SCL 209: error as to consent
• Types of assault


  • Assault with intent to rape

  Assault to the danger of life

  Assault to severe injury

  Assault to permanent disfigurement

  Assault to the permanent impairment of sight

  Assault with a weapon

  Hamesucken

  Aggravated assault
• Children (Equal Protection from Assault) (Scotland) Act 2019

  
  

  "The rule of law, that the physical punishment of a child in the exercise of a parental right or a right derived from having charge or care of the child is justifiable and is therefore not an assault, ceases to have effect."
• Reckless endangerment, recklessly causing injury or culpable and reckless injury


  Assault requires intent, but causing real injury by reckless conduct is a crime
• Sexual assault by penetration also includes penial penetration, why?

  to account for young children, and others who may not know it was penial penetration.
• Circumstances in which conduct takes place without free agreement

  where B agrees or submits to the conduct because of violence used against B or any other person, or because of threats of violence made against B or any other person
• Circumstances in which conduct takes place without free agreement

  where B agrees or submits to the conduct because B is unlawfully detained by A, where B agrees or submits to the conduct because B is mistaken, as a result of deception by A, as to the nature or purpose of the conduct
• Circumstances in which conduct takes place without free agreement

  where B agrees or submits to the conduct because A induces B to agree or submit to the conduct by impersonating a person known personally to B
• Circumstances in which conduct takes place without free agreement

  where the only expression or indication of agreement to the conduct is from a person other than B