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Culpable Homicide

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Culpable Homicide

Postby Damien » Thu Dec 08, 2016 2:14 am

what is the leading case in involuntary culpable homicide in scottish law?
Damien
 
Posts: 42
Joined: Sat Mar 29, 2014 10:44 am

Culpable Homicide

Postby kennon » Sat Dec 10, 2016 10:07 am

Dani

This appears to be a homework question.

Involuntary culpable homicide is homicide where the mens rea for murder is not present but either the independent mens rea for culpable homicide is present, or the circumstances in which death was caused make it culpable homicide. Involuntary culpable homicide may arise in the context of an unlawful act or a lawful act. The mens rea requirement is different in each case.

The classic definition of involuntary culpable homicide is found in the 1936 case of Paton v His Majesty;s Advocate. In dealing with an appeal against a conviction for culpable homicide arising out of the driving of a motor car, Lord Justice-Clerk Aitchison observed at p.22:    "The difficulty that the case presents is whether there was evidence that the appellant was guilty of criminal negligence in the sense in which we use that expression. At one time the rule of law was that any blame was sufficient, where death resulted, to justify a verdict of guilty of culpable homicide. Unfortunately, this law has to some extent been modified by decisions of the Court, and it is now necessary to show gross, or wicked, or criminal negligence, something amounting, or at any rate analogous, to a criminal indifference to consequences, before a jury can find culpable homicide proved."(emphsis added)

Although the Judge uses the term 'negligence', it appears from comments made in the Transco criminal appeal that it is not necessary to prove that the the defendent owed a 'duty of care'(as is required in the English law of manslaughter). Lord Osborne stated in his ruling that:    From my consideration of the nature of the common law crime of involuntary culpable homicide, it appears to me to follow that civil common law duties of care, or civil statutory duties of care, can play no direct part in the assessment of guilt, except to the extent that their existence may serve to demonstrate the particular area of responsibility which an individual may carry.(para 7)

The fact that no civil law 'duty of care' is required potentially broadens the range of defendents that can be prosecuted for the offence - compared for example to the offence in England.

It also appears from the same case that it is necessary to prove a particular state of mind on the part of the defendant rather than just assessing the conduct of the defendant against an objective standard. Lord Osborne stated:    "where there is an issue of involuntary culpable homicide, the resolution of the issue depends, not upon some objective assessment of the conduct of the perpetrator alone, but upon an assessment of "his state of mind at the time of the accident", in other words, an enquiry into whether he possessed the necessary criminal intent at the material time, namely a "complete disregard of potential dangers and of the consequences of his [conduct]".(para 4)

And Lord Hamilton stated:    "These authorities make it plain, in my view, that under the law of Scotland the mental element(mens rea) is and remains a necessary and significant element in the crime of("lawful act") culpable homicide. That element may, of course, be proved in various ways, including proof by inference from external facts. But it is, in my view, erroneous to suppose that the actual state of mind of a person accused of culpable homicide of this kind can be ignored and guilt or innocence determined solely on the basis of proof that the conduct in question fell below an objectively set standard."(para 38)

This requirement of a mental state is again disimiliar to the law in England - where it is not necessary to prove a particular state of mind(though it can be taken into account) - and makes it more difficult to prove that an individual has committed the offence of culpable homicide than that of manslaughter in England.

However, it should be noted Scottish approach to proof of a mental state has traditionally been fairly robust and "objective", tending to draw inferences of a particular state of mind fairly readily from behaviour.

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord MacLean

Lord Osborne

Lord Hamilton

Appeal No: XC392/03 in

APPEAL under Section 74 of the Criminal Procedure(Scotland) Act 1995

by

TRANSCO PLC Appellant;

against

HER MAJESTY'S ADVOCATE Respondent:

Appellant: Jones, Q.C., J. Lake; Simpson & Marwick

Respondent: Turnbull, Q.C., A.D., G. Balfour; Crown Agent

3 June 2003

................

OPINION OF LORD OSBORNE

The nature of the crime of involuntary culpable homicide

[3]   Recognising that involuntary culpable homicide is a crime under Scots common law, it is necessary, first of all, to consider the fundamental nature of a common law crime, particularly with regard to criminal intent. Baron Hume in his Commentaries on the Law of Scotland Respecting Crimes, Vol.1 at pps.21-22 deals generally with the matter of dole, or mens rea. He defines it as "that corrupt and evil intention, which is essential(so the light of nature teaches, and so all authorities have said) to the guilt of any crime..... that the act must be attended with such circumstances, as indicate a corrupt and malignant disposition, a heart contemptuous of order, and regardless of social duty."

MacDonald in A Practical Treatise on the Criminal Law of Scotland, 5th ed., at p.1 states:

"The law holds a man to be punishable as a criminal whether his deed is in itself a completed crime, or is an attempt to commit crime. The deed must be overt and must be done with wicked intent.... The wicked intent is an inference to be drawn from the circumstances of the deed as well as from any explanations by the man."

In Duguid v Fraser 1942 J.C. 1, the court had to deal with the complications of emergency war legislation, in particular the Prices of Goods Act 1939, section 1. That occasion demanded consideration of what, if any, part mens rea had to play in offences created by such statutory provisions. Lord Justice-Clerk Cooper took the opportunity to make certain general observations on the part played by mens rea. At p.5 he said this:

"Our reports already contain many examples of cases in which it has been held that a malum prohibitum has been created by statutory enactment in such terms and under such circumstances as to impose an absolute obligation of such a kind as to entail this wider liability. In all such cases it has, I think, been the practice to insist that the Crown should show that the language, scope and intendment of the statute require that an exception should be admitted to the normal and salutary rule of our law that mens rea is an indispensable ingredient of a criminal or quasi-criminal act; and I venture to think that it would be a misfortune if the stringency of this requirement were relaxed."

More recently the important part played by mens rea in our criminal law was discussed in Ross v Her Majesty's Advocate 1991 J.C. 210. The court was there considering the significance of non-insane automatism. One again, the importance of mens rea was emphasised. Lord Justice-General Hope at p.213 said: "In principle it would seem that in all cases where a person lacks the evil intention which is essential to guilt of a crime he must be acquitted." He then quotes the passage already referred to from Hume. He then goes on: "So if a person cannot form any intention at all because, for example, he is asleep or unconscious at the time, it would seem impossible to hold that he had mens rea and was guilty in the criminal sense of anything he did when he was in that state."

At p.228 Lord McCluskey said: "I know of no exceptions, other than statutory ones, to the rule that the Crown must prove mens rea beyond a reasonable doubt." In these circumstances, one might conclude that mens rea is indeed an essential ingredient of, in particular, the common law crime of culpable homicide. [4]   Moving on from general principles, I consider next how the crime of culpable homicide has been defined, with a view to identifying what is involved as regards mens rea in relation to involuntary culpable homicide. Perhaps the starting point may be what is said in Drury v Her Majesty's Advocate 2001 S.C.C.R. 583 at p.589, where Lord Justice-General Rodger said this of culpable homicide:

"As its name suggests, according to the current usage in our law(Burnett's Criminal Law, pps.26-27) the crime of culpable homicide covers the killing of human beings in all circumstances, short of murder, where the criminal law attaches a relevant measure of blame to the person who kills."

Plainly, the destruction of human life itself may be categorised as murder, or culpable homicide, or a justified and non-criminal act, depending upon the criminal intent which may or may not be involved. Writing of involuntary culpable homicide, MacDonald, op. cit., at p.100 says this:

"Third, culpable homicide may result from neglect of proper precautions, or of moderation in the doing of what is legal, or from general carelessness and neglect of duty. Here, also, the cases that have happened are out-numbered by those that may be supposed. They include every fatal accident which is not fortuitous, but results from some blameable conduct. The trend of legal development has been to draw a distinction between negligence which results in civil liability and negligence which results in criminal responsibility; and in the latter case to desiderate gross and wicked negligence or recklessness. The old rule that 'any blame is enough' is no longer valid.... With the prevalence of fast-travelling motor vehicles on the road, the tendency of the law in the case of fatal accidents is to hold the driver of the vehicle which inflicts the injury guilty of homicide, only if his conduct is notably and seriously negligent or displays utter disregard for the safety of others."

A case of the kind just referred to by MacDonald is Paton v His Majesty's Advocate 1936 J.C. 19, where there is to be found what has come to be regarded as a classic definition of involuntary culpable homicide. In dealing with an appeal against a conviction for culpable homicide arising out of the driving of a motor car, Lord Justice-Clerk Aitchison observed at p.22:

"The difficulty that the case presents is whether there was evidence that the appellant was guilty of criminal negligence in the sense in which we use that expression. At one time the rule of law was that any blame was sufficient, where death resulted, to justify a verdict of guilty of culpable homicide. Unfortunately, this law has to some extent been modified by decisions of the Court, and it is now necessary to show gross, or wicked, or criminal negligence, something amounting, or at any rate analogous, to a criminal indifference to consequences, before a jury can find culpable homicide proved."

With the greatest of respect to the author of this dictum, it appears to me that this definition involves certain difficulties. His Lordship refers to "criminal negligence" and "criminal indifference to consequences". The use of the adjective "criminal", in an endeavour to define what is in fact involved in a particular crime, involves circularity and is therefore unprofitable. Furthermore, the word "negligence" introduces a potential for confusion. I would believe that that word "negligence" may properly be used in two senses. The first is a reference to the English tort of negligence; the second is the more general English parlance, which connotes some degree of carelessness or neglect of duty in a non-legal context. It is not clear to me in which particular sense that word is used by Lord Justice-Clerk Aitchison. The remaining features of the definition "gross or wicked ... indifference to consequences" appear to me to be more helpful. In Quinn v Cunningham 1956 J.C. 22, the court considered a complaint of culpable and reckless conduct, not resulting in death, but the case contains certain observations by Lord Justice-General Clyde which seem to me to be of interest in the present context. At p.24 he said:

"So far as concerns road accidents in Scotland, it is an essential element in the constitution of a crime at common law that there should be either an intention to commit a wrong or an utter disregard of what the consequences of the act in question may be so far as the public are concerned. Culpable homicide is the typical example of the latter form of crime. The essence of culpable homicide is the degree of culpa which has in fact resulted in the death. Mere culpa plus a death resulting from it does not constitute culpable homicide."

His Lordship then quoted the passage referred to already from Paton v His Majesty's Advocate. He went on:

"This represents the standard of culpability which must be established in such cases in order to constitute a crime at common law, based not upon intent, but upon reckless disregard of consequences. It is highly relevant to the present question since in the text-books furious driving or riding at common law is treated as a subheading of the crime of culpable homicide - Alison's Criminal Law, Vol.1 p.121; Hume on Crimes, Vol.1 p.192. The standard of culpability must be the same, whether its consequences are death or not."

While certain aspects of this decision have been the subject of criticism, which seems to me to be irrelevant in the present context, the passages which I have quoted cast further light on the mens rea of involuntary culpable homicide. In W. v Her Majesty's Advocate 1982 S.L.T. 420, the court considered an appeal against a conviction for culpable and reckless conduct. In the Opinion of the Court, the language used by Lord Justice-General Clyde in Quinn v Cunningham, already quoted, was approved as being "in our view well suited to application in the case of a common law crime of the type with which the appellant was charged." It was also observed that: ".... it is of the essence that there should be criminal recklessness in the sense of a total indifference to and disregard for the safety of the public." In Sutherland v Her Majesty's Advocate 1994 S.C.C.R. 80 the court considered a conviction for culpable homicide arising out of fireraising, followed by the occurrence of an explosion resulting in death. The criterion used by the trial judge in charging the jury in relation to the allegation of culpable homicide was this: "Was the fireraising something which was done in the face of obvious risks which were or should have been appreciated and guarded against, or in circumstances which showed a complete disregard for any potential dangers which might result?"

The use of that criterion in the charge was upheld by the court on appeal. In McDowall v Her Majesty's Advocate 1998 S.C.C.R. 343, the court was concerned with an appeal against a conviction for culpable homicide arising from a road traffic incident. In defining the offence for the jury, the trial judge spoke of "reckless disregard for the safety of others" and "a complete disregard of the potential dangers or possible consequences". Apart from the fact that those directions were upheld, the case is of interest for the reason that an issue arose as to the relevance of evidence concerning the manner of the appellant's driving shortly before and shortly after the accident out of which the case arose. The court decided that that evidence was relevant. In relation to that matter Lord Justice-General Rodger said at p.349:

"In our view the fact that immediately after the accident the appellant showed utter disregard to the victims and the fact that he drove with the bonnet in an upright position are factors which the jury were entitled to take into account, along with the evidence as to his driving and the period leading up to the accident, when assessing his state of mind at the time of the accident. In particular, they are matters which the jury could consider when deciding whether at the time of the accident the appellant showed complete disregard of potential dangers and of the consequences of his driving for the public."

It appears to me from these observations that where there is an issue of involuntary culpable homicide, the resolution of the issue depends, not upon some objective assessment of the conduct of the perpetrator alone, but upon an assessment of "his state of mind at the time of the accident", in other words, an enquiry into whether he possessed the necessary criminal intent at the material time, namely a "complete disregard of potential dangers and of the consequences of his driving for the public". In Cameron v Maguire 1999 J.C. 63, the court was concerned with a case of the culpable and reckless discharge of a firearm. The criterion which was expressed as appropriate, which I consider equally applicable in a case where death results and the issue is one of culpable homicide, is to be found in the Opinion of the Court, delivered by Lord Marnoch. At p.66 he spoke of the test laid down in Quinn v Cunningham "namely that there should be 'an utter disregard of what the consequences of the act in question may be so far as the public are concerned' or, as re-formulated on the following page of the report, that there should be a 'recklessness so high as to involve an indifference to the consequences for the public generally'". It respectfully appears to me that those formulations possess the merit of, first, avoiding the obvious circularity evident in the definition adopted in Paton v His Majesty's Advocate, and second, the potential for confusion created by the use of the word "negligence" in that case. [5]   During the course of the argument before us, reference was made to the nature of the law of manslaughter in England. It appears to me of value to consider that law, since it possesses relevance in relation to matters with which this opinion will deal subsequently. We were informed that, in recent times there had been certain difficulties in formulating an acceptable definition of the crime of manslaughter. However, those difficulties had been resolved by the House of Lords in Regina v Adomako [1995] 1 A.C. 171. For the present purposes, it is unnecessary for me to summarise the facts of the case. At p.187 the Lord Chancellor, Lord Mackay of Clashfern, formulated the definition of manslaughter in this way:

"On this basis in my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal. It is true that to a certain extent this involves an element of circularity, but in this branch of the law I do not believe that is fatal to its being correct as a test of how far conduct must depart from accepted standards to be characterised as criminal. This is necessarily a question of degree and an attempt to specify that degree more closely is I think likely to achieve only a spurious precision. The essence of the matter which is supremely a jury question is whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission."

[6]   Whether the application of this definition to any particular set of facts would, in practice, produce a result different from that produced by the application of the Scottish definition which I have examined, can only be a matter of conjecture. However, it is quite clear to me that the two definitions are fundamentally different. The English one, just quoted, involves, first, the application of the ordinary principles of the civil law of negligence, in order to ascertain whether or not the defendant has been in breach of a legal duty of care towards the deceased victim. The Scottish definition contains no counterpart to that. In the Scottish formulation, as I would see it, there is no reliance on elements of the Scottish civil law of delict. Thereafter, the question which arises in the application of the English definition is whether the breach of duty should be characterised as gross negligence and therefore a crime. While both definitions share the requirement that the conduct under consideration must be of a grave kind, in order to be classified as criminal, as Lord Mackay recognised, in some degree, the English definition involves a circularity. Happily, the most modern formulation of the test adopted in Scotland has avoided that problem. Furthermore, the Scottish formulation implies clearly, to my mind, a certain state of mind on the part of the perpetrator, that is to say mens rea, in accordance with the basic principles of Scots criminal law. On the other hand, the English approach seems to involve an objective assessment of the conduct under consideration alone, although the Crown did not argue for that, as appears from p.180 of the report under consideration. In these circumstances, I would respectfully agree with the observations of the Lord Justice-Clerk in delivering the Opinion of the Court in the Lord Advocate's Reference No.1 of 1994 1995 S.L.T. 248, at p.253 where he said: "We cannot affirm that the law in England relating to manslaughter is the same as the law in Scotland relating to culpable homicide." I must therefore respectfully disagree with the observations of Lord Fraser of Tullybelton in Regina v Seymour [1983] 2 A.C. 493 at p.499 where he observed that there was no relevant difference between the crimes of manslaughter and culpable homicide. [7]   From my consideration of the nature of the common law crime of involuntary culpable homicide, it appears to me to follow that civil common law duties of care, or civil statutory duties of care, can play no direct part in the assessment of guilt, except to the extent that their existence may serve to demonstrate the particular area of responsibility which an individual may carry. In that connection I refer to Her Majesty's Advocate v Latto(1857) 2 Irvine 732. By the same token, it appears to me that the use of such terms as criminal negligence in the context of the application of the law of culpable homicide is unhelpful and potentially misleading.

[8]   What emerges from my consideration of the law relating to involuntary culpable homicide in Scotland is that the crime is one involving, not only an actus reus, but also mens rea, as one would expect having regard to the fundamental principles of the criminal law. Thus, in any determination of whether the crime has or has not been committed, the state of mind of the alleged perpetrator must necessarily be examined. It would not be sufficient simply to assess the conduct for which that person has been responsible and to draw a conclusion as to guilt or otherwise from that conduct alone. .....................

OPINION OF LORD HAMILTON

.....................

[35]   It is first necessary to say something about the nature of culpable homicide in the law of Scotland. It is a crime at common law and has had a long history. It is unlawful killing of a criminal kind in circumstances where the crime does not amount to murder. It can occur in a wide variety of circumstances. Some classification of these circumstances has been attempted. The present case concerns the third of three kinds of culpable homicide identified in MacDonald - Criminal Law of Scotland(5th ed.) at p.96, where that kind is described as "homicide from negligence, or from rashness in the performance of lawful duty". The learned authors of MacDonald cite in support of their propositions passages from Hume's Commentaries and Alison - Principles. In Hume(Bell's Ed.) Vol.1 pps.233-4 a tripartite classification is also made, though the kind mentioned third in MacDonald is referred to first in Hume. At p.233 Hume says:

"Culpable Homicide appears to be of several kinds and degrees; and these are ground in different reasons.

1.   It has already been mentioned, and it does not seem to stand in need of further illustration, that it is culpable homicide, where slaughter follows on the doing even of a lawful act; if it is done without that caution and circumspection which may serve to prevent harm to others."

The reference there to what "has already been mentioned" takes one back to an earlier passage in Hume's chapter on Homicide. At pps.192-3 he says:

"Last of all, some punishment is due, though the slaughter happened in the performance even of a lawful act, if there be great heedlessness and indiscretion, or a want of due caution and circumspection, in the way of doing the thing: As if a man leave his fowling-piece loaded, and afterwards kill in trying the lock, having forgot the condition in which he left the piece: Or if in driving any carriage through the streets of a town, the driver quit his horses, and they run off with the carriage, and a passenger is killed: Or if workmen on the roof of a building by the side of a highway throw down slates or rubbish, without timely warning to the passenger. In all these instances, there is a want of that serious and considerate regard to the safety of one's neighbour, which justly makes one answerable for the consequences and punishable to such an extent as may serve to correct so faulty a habit of mind, in one's self or others."

Certain other illustrations are then given. Sometimes culpable homicide of this kind has been referred to as "lawful act" culpable homicide to distinguish it from "unlawful act" culpable homicide, such as where a person unforeseeably dies as a result of an assault. But it is plain that culpable homicide of the former kind can be committed not only where some lawful duty is performed in a culpable way but also where in any circumstances a person acts or fails to act with the requisite degree of culpability and death results. Alison - Principles at p.113 describes the general principles as applying to "acts, either of duty or amusement,...". [36]   The degree of culpability required for the purposes of culpable homicide of this kind has, it seems, changed over time. However, by the fourth decade of the twentieth century the modern test had been firmly established. In Paton v H M Advocate 1936 J.C. 19, where the driver of a motor car was charged with that offence, Lord Justice-Clerk Aitchison at p.22 observed:

"...it is now necessary to show gross, or wicked, or criminal negligence, something amounting, or at least analogous, to a criminal indifference to consequences, before a jury can find culpable homicide proved."

This standard was accepted and applied by Lord Justice-Clerk Thomson in Dunn v H M Advocate 1960 J.C. 55 at p.59, the other members of the court concurring. [37]   There may be some difficulty in regarding Lord Justice-Clerk Aitchison's observation as a comprehensive definition - not least because of the circularity which arises from the use(twice) of the adjective "criminal" in the definition of the crime. But it does at least point not only to a degree of want of care which is grave but also to a state of mind on the part of the accused which is "wicked" or amounts, or is equivalent, to a complete indifference to the consequences of his conduct. These latter aspects reflect the mental element which since Hume has been recognised as a necessary ingredient of this crime, albeit the degree of blameworthiness has become greater. More recently in McDowall v H M Advocate 1998 S.C.C.R. 343(another case of culpable homicide in the course of driving a motor car) the court required to consider the question whether evidence of conduct on the part of the driver occurring before and after the events which immediately gave rise to the impact, was relevant to proof of the charge. It held that such evidence was relevant. Its ground for doing so was that such evidence could, along with evidence as to the manner of driving, be a basis for drawing inferences about the appellant's state of mind at the time of the accident. At p.349 C-D Lord Justice-General Rodger, delivering the Opinion of the Court, said:

"In our view, the fact that immediately after the accident the appellant showed utter disregard for the victims and the fact that he drove with the bonnet in an upright position are factors which the jury were entitled to take into account, along with the evidence as to his driving in the period leading up to the accident, when assessing his state of mind at the time of the accident. In particular, they are matters which the jury could consider when deciding whether at the time of the accident the appellant showed complete disregard of potential dangers and of the consequences of his driving for the public."

[38]   These authorities make it plain, in my view, that under the law of Scotland the mental element(mens rea) is and remains a necessary and significant element in the crime of("lawful act") culpable homicide. That element may, of course, be proved in various ways, including proof by inference from external facts. But it is, in my view, erroneous to suppose that the actual state of mind of a person accused of culpable homicide of this kind can be ignored and guilt or innocence determined solely on the basis of proof that the conduct in question fell below an objectively set standard. [39]   In these circumstances there are, in my opinion, risks in seeking to deploy in the present context approaches adopted in relation to statutory offences(whether in Scotland or in England) or in the field of manslaughter under English law. In Allan v Patterson 1980 J.C. 57 this court required to construe the word "recklessly" as it appeared in section 2 of the Road Traffic Act 1972(as amended by the Criminal Law Act 1977). The court concluded -

"There is nothing in the language of section 2 as amended to suggest an intention on the part of Parliament to penalise thereunder only a course of driving embarked upon wilfully or deliberately in the face of known risks of a material kind. Inquiry into the state of knowledge of a particular driver accused of the offence created by the section as amended, and into his intention at the time, is not required at all. The statute directs attention to the quality of the driving in fact but not to the state of mind or intention of the driver."

That conclusion rejected the submission for the respondent accused that "no man can be said to drive 'recklessly' unless it is shown that he actually knew of certain material risks in driving in a particular way and nevertheless elected to drive in that way with complete indifference to the possible consequences." While the court's conclusion on that matter is perfectly comprehensible in the context of a statutory provision designed to regulate the conduct of drivers on the public road, it is not, in my view, a safe guide to the essential features of the common law crime of culpable homicide. The contrast between the test for culpable homicide and that for contravention of the statutory offence(as then formulated) of causing death by reckless driving is noted by Lord Justice-Clerk Thomson in Dunn v HM Advocate at p.59 where he concludes that "it does not admit of doubt that the burden on the Crown in a prosecution [under the statutory provision] is not so exacting as in one where culpable homicide is charged".

In so far as the reasoning in Gizzi v Tudhope 1982 S.C.C.R. 442 may tend to suggest(in the context of non-fatal conduct) that statutory and common law tests are interchangeable, I respectfully question that reasoning.(In this regard, see also Cameron v Maguire 1999 J.C. 63).

[40]   Even less safe is reliance on the test under the English law(as developed) of manslaughter. I enter this field with considerable hesitation; but, since it was canvassed fully before us, I make a few observations on it. The English law of involuntary manslaughter has, it seems, undergone various developments over time. In R v Adomako [1995] 1 A.C. 171 the House of Lords followed the approach of the Court of Appeal in R v Bateman(1925) 19 Crim. App. R. 8 and of the House of Lords in Andrews v Director of Public Prosecutions [1937] A.C. 576 but disapproved the approach of the House of Lords in R v Seymour(Edward) [1983] 2 A.C. 493 and commented to some extent adversely on the approach of the House of Lords in R v Lawrence(Stephen) [1982] A.C. 510. The leading speech in Adomako was given by Lord Mackay of Clashfern, L.C. At p.187 his Lordship described the crime of involuntary manslaughter in terms which, at least on one reading, might appear to depend wholly on objective standards of conduct without any need for reference to the actual mental state of the accused. [41]   Before the single judge the Crown sought to rely on Adomako for the proposition that mens rea played no part in culpable homicide of the kind with which the present case is concerned. That judge, however, did not adopt so extreme a proposition, acknowledging that what was actually in the mind of the person charged would be relevant to whether or not that person had committed that crime. The position of the advocate depute before us was that mens rea played some part, though only a restricted part. Thus, he conceded, that where, for example, the culpable homicide was said to have been committed in the course of driving a motor car, it would be relevant to consider not only the quality of the driving, viewed objectively, but also other circumstances, such as the onset of a hypoglycaemic attack or coercion of the accused by another, which might bear upon the accused's state of mind and so upon his guilt or innocence; but generally, he argued, the quality of the conduct, viewed objectively, was the critical matter upon which it was necessary to focus. The advocate depute also sought to draw a distinction between mens rea as it might be relevant to crimes of intent, such as assault and theft, and mens rea in the context of culpable homicide by neglect; in the former case the evidence bearing on the actus reus might be neutral as to the requisite mens rea; in the latter it would not.

[42]   It is a general requirement of the law of Scotland, with rare, if any, exceptions, that a common law crime can be committed only where the requisite mental element exists. In Hume(p.21) that mental element is called "dole" - "that corrupt and evil intention which is essential(so the light of nature teaches, and so all authorities have said) to the guilt of any crime". Hume continues(pps.21-2) - "Now, in delivering this precept, those authorities are not to be understood in this sense, as if it were always necessary for the prosecutor to bring evidence of an intention to do the very thing that has been done, and to do it out of enmity to the individual who has been injured. In this more favourable sense to the prisoner, the maxim cannot be received into the law; for it would screen many great offenders from the due punishment of their transgressions. And I think it is only true in this looser and more general, but a practical and a reasonable sense ....that the act must be attended with such circumstances, as indicate a corrupt and malignant disposition, a heart contemptuous of order, and regardless of social duty."

MacDonald(at p.1), where the reference is to "wicked intent", is in substance to the same effect. Lord Justice-Clerk Cooper in Duguid v Fraser 1942 J.C. 1 at p.5, while recognising that statute might in particular instances make exceptions, referred to "the normal and salutary rule of our law that mens rea is an indispensable ingredient of a criminal or quasi-criminal act; and I venture to think that it would be a misfortune if the stringency of this requirement were relaxed". Observations to the same effect are to be found in the opinions of the judges in the five judge case of Ross v H M Advocate 1991 J.C. 210, particularly per Lord Justice-General Hope at p.217 and Lord McCluskey at p.227.

[43]   The nature of the requisite mens rea will differ as between one crime and another; the evidential material which will be necessary or apt to prove(or to negate) the requisite mens rea will also vary. Evidential differences may also arise where the actus reus of the crime is an act of commission as against conduct by omission. [44]   In the present case the alleged actus reus is in substance a series of failures, that is, omissions to take steps which, it is alleged, ought to have been taken. The law, even in the criminal sphere, imposes in some circumstances a requirement of "due caution and circumspection", of "serious and considerate regard to the safety of one's neighbour"(Hume pps.192-3), the want of which may, if death results, amount to the crime of culpable homicide. That want of care is a mental state of the accused. Its existence may to a substantial extent be capable of proof by evidence of external factors, including inferences from a comparison of what the accused did or failed to do against standards of conduct to be expected of persons carrying on operations of the relevant kind. This may be particularly so where the conduct complained of is not some positive act but is inaction in circumstances where there was allegedly a duty to act. Thus the primary evidential focus may in some cases be largely, or perhaps wholly, on external factors. But a necessary element in proof of the crime of culpable homicide will be what inferences, if any, can properly be drawn from such primary evidence as to the state of mind of the particular accused.

[45]   Given the advocate depute's departure from the position adopted by the Crown before the single judge, it is probably unnecessary for the purposes of a decision in this case to elaborate upon the necessary content of the mens rea for culpable homicide in the present circumstances. It is sufficient to hold that the crime cannot be committed without proof of a requisite mens rea on the part of the accused. In a case such as the present the state of knowledge of the accused is clearly critical. That is of importance in considering whether, and if so how, a body corporate can commit this common law crime. [46]   The criminal law of Scotland as discussed in institutional writings is essentially concerned with the amenability to that law of individuals. However, as the activities of corporate bodies and other non-natural persons have come to impinge more widely on society, the amenability of such non-natural persons to the criminal law has, subject to certain restrictions, come to be recognised.

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kennon
 
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Culpable Homicide

Postby Angelino » Thu Dec 15, 2016 12:59 am

what is the leading case in involuntary culpable homicide in scottish law?
Angelino
 
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