Saturday, March 30, 2019
Certain Omissions Regarded As Criminal Conduct In Scotland Law Essay
received Omissions Regarded As Criminal Conduct In Scotland justice Essay at that place are trusted restricted set in Scots Law that an slackness is regarded as barbarous pass on. The key question to look at is do we have a positive calling to act? In Scots Common law there is no sub judice responsibleness if one individual finds a nonher in peril to intervene and assist. barely in some circumstances a role will get up were hardship to intervene will result in criminal obligation3. So it is not what the impeach did it is what they did not do. The situations were such intervention is legally required fall into three categories that have to be examined closely with detail reference to specific crucial expressions. In addition expression at the consequence of the actus reus and the mens rea in relation to enamor subjects. The actus reus has no official description nevertheless it is the physical element of a crime, which includes conduct, omission or situation. The mens rea accompany by the actus reus would result in criminal liability.4To illustrate both in terms of omission I have highlighted specific drives that explain the signifi lavatoryce of bothThe first circumstances that a failure to act put up take a shit rise to criminal liability is where a dangerous situation has been created by the accused or where the prior actions of the accused has created danger5This image of omission generally follows a positive act, this whitethorn be criminal or not. In HM Advocate v McPhee (1935) the accused was super indictd with murder. McPhee had carried out a violent serious assault on a woman, beating her, repeatedly kicking her, knocking her down and left her unconscious(p) in an open field.6Lord Mackay upheld the murder strong belief on the drive that it could be asserted that the accused wickedly and feloniously exposed the woman dispenseless(predicate) of consequences to the inclemency of the weather, and if she died in consequenc e both of the beating and exposure7This pillowcase free-base the accused guilty of culpable homicide. In cases similar to McPhees an omission will not arise if it can be proven that the accused initial criminal actions caused the victims death. However because McPhees assault on the woman had emasculated her he had a responsibility to remove her from that situation or sanction her in the particular situation which the he had all ready created8An eventful case to highlight under this section is MacPhail v Clark (1983). This situation is a little more complicated as the actions of the accused are not criminal but instead his actions were negligent and reckless. However the actions that caused this situation may be regarded as criminal if they cause harm and in this case endanger lives.9The sodbuster in this case had set a move to burn straw in a field that was upwind from a dual carriage way. The go off had spread causing the smoke to look onto the road causing unfavourable v isibility. This resulted in two vehicles colliding causing injury.10The farmer was convicted of recklessly endangering the lieges.11It was highlighted that the farmer did nothing wrong in setting the fire in the field, it was the failure to look into that the fire was safe and would not spread. Reports found that the burning of the straw continue for at least twenty minutes and the farmer continued to plough right up until the arrival of the catch services.12The Farmer had done nothing to snatch the fire spreading and continued to allow it to spread onto the road without taking any action to let out the dangerous situation that he had created.The second circumstances that can give rise to criminal liability are where the accused status or contractual obligation results in a duty to act.13This status or contractual obligation is when a person in a mankind office or position or responsibility has a duty to prevent the occurrence of harm, fails to do so.14This means that an onloo ker is under a position and duties were they have a responsibility to prevent the criminal offense. If the onlooker fails to do this it may result in criminal liability.15Bonar and Hogg v McLeod (1983) highlights a failure to prevent an offense. Mr Bonar was an older and more experienced senior officer who by being present at the scene of the crime and failure to intervene led to art and part guilt.16Hogg the officer who assaulted the prisoner, grabbed him by the throat and pushed his arm up his back, then quick marched him down the corridor. The inordinateness of the force was unnecessary as the prisoner was neither resisting nor struggling with the officer.17During this offence Bonar did not only stand back and allow this to happen but was an active participant in the quick march down the corridor.18Bonar was regarded as art in part liable for the assault upon the prisoner.19The third and last-place situation that intervention is legally required is where a prior alliance am ong the accused and the victim which is such that there is a legal obligation to act.20An example of a special relationship would be a fetch and child. In fig up v HM Advocate the mother was charged with culpable homicide of her daughter by witnessing and countenancing criminal conduct.21The allegations made against Bone were that she wilfully failed to protect her child and also to ensure that her wellbeing was inviolable or seek medical attention for her injuries. However Bones evokeed the conviction and the appeal went in her favour and was quashed22. This was on the basis that the mental test pretend misdirected the jury by failing to give significant directions of the question of the sound astuteness of whether the appellant had failed to take the reasonable steps to protect her child and ensure her wellbeing.23 receivable to this it was found that there was a miscarriage of justice and allowed the appeal against the conviction.Another case of relevance is to look at th e relationship between a doctor and a patient. In this particular English case Adamako in 1993 was an anaesthetists in an eye operation were the tube from the breathing machine had been detached. Adamako did not notice this for roughly six minutes when the patient went into cardiac arrest.24During the trial Adamako was charged with manslaughter by coarse negligence, where the accused break downed a duty of care towards the patient that resulted in death.25Adamako appealed to the House of Lords were the conviction was upheld. Lord Mackay stated that stark(a) negligence depends on the seriousness of the weaken of the duty committed by defendant in all circumstances in which he was put when it occurs and whether, having regard to the risk of death moved, the conduct of the defendant was so bad in all circumstances as to amount in the jurys judgement to a criminal act or omission.26For an involuntary manslaughter by breach of duty to be proved firstly there has to be produce of the existence duty which was apparent in this case anaesthetists and patient. Secondly, a breach of duty resulting in death. This again occurred when the accused failed to see the detachment of the ventilator which led to cardiac arrest. Finally the jury must subscribe to the gross negligence as justified for a criminal conviction.27In HM Advocate v McPhee a case mentioned earlier it is important to consider the significance of actus reus and mens rea. McPhee omits to the assault on the woman so therefore this can constitute to the actus reas of the crime. McPhee had severely beaten the woman and therefore weakening her displace her in a dangerous situation which lead to her death.28Paterson v Lees is a case of relevance that highlights the significance of the mens rea applied in a case of omission. Paterson was charged with inter alia, conducting himself in a shamelessly unbecoming manner. Paterson was babysitting his neighbours children a 9 year old little girl and an 11 year old boy. The original statement made was that the appellant did conduct himself is a shamelessly indecent manner towards the female complainer old 9 and the male complainer aged 11 and did show them a get of an obscene and indecent nature which depicted acts of human sexual intercourse.29What was illustrated in the case was that the appellant had allowed the children to continue watching the video he omitted to stop the children viewing the video. The Appeal Court was unanimous in the decision that the charge of shameless indecency could not be committed in this way. The force here was that it was not a crime to permit children to view indecent material.30In common law shamelessly indecent conduct is an offence therefore it involves the element of mens rea. Therefore it must be proved that Paterson has the appropriate mens rea in this case it would be an intention to commit the offence this would involve switching on the material either intending to corrupt or demoralise or kn owledge that the material is liable to corrupt or deprave.31Due to this element of mens rea Patersons appeal was allowed.To conclude, the failure to act in some circumstances can under Scots law lead to criminal liability. When looking at omissions it is important to establish the requirements that lead to an omission and the elements of actus reus and mens rea. They all add vital roles in illustrating the complexity of being liable in certain circumstances and the wide variety of cases that involve omissions.