Taxi Driver Online

I don't know Sussex. I think Stevie knows enough to keep his mouth shut, but the pressure of the situation might have got to him. Only time will tell.

Oh and Sussex, one might think you have a really cynical view of our “justice” system.

Not really.

It's just that I know that people nearly always say things they shouldn't, in a vain attempt to appear helpful and innocent.

I have said this before on TDO, but I will repeat it, if arrested or questioned say nothing.

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IDFIMH

You could always ask for a copy of PACE to read whilst in the cells.

CC

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Think of how stupid the average person is, and realize half of them are stupider than that.
George Carlin

Don't think they have PACE up here.

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http://wingsoverscotland.com/ http://www.newsnetscotland.com/

OK.....a copy of Robbie Burns collects tax for the English's greatest works?

CC

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Think of how stupid the average person is, and realize half of them are stupider than that.
George Carlin

A few years ago, one of my sons was arrested in Scotland and spent a couple of nights in the cells. He was given a book by Robbie Burns to read whilst in the cells. He couldn't make head nor tail of it.

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Grandad,

Awa wi ye

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http://wingsoverscotland.com/ http://www.newsnetscotland.com/

Cu nn ing ham, R v (1981) HL

'Must know' content indicated by red triangle

[Murder - intention – intention to commit homicide or grievous bodily harm]

D attacked V in a pub, hitting him repeatedly with a chair, which resulted in V’s death.


Held: Intention to cause grievous bodily harm, but not to cause death, is sufficient to establish the mens rea for murder.

Lord Hailsham LC:

‘malice aforethought has never been limited to the intention to kill or to endanger life’.

Lord Edmund-Davies (dissenting):

"I find it passing strange that a person can be convicted of murder if death results from, say, his intentional breaking of another’s arm, an action which, while undoubtedly involving the infliction of ‘really serious harm’ and, as such, calling for severe punishment, would in most cases be unlikely to kill. And yet, for the lesser offence of attempted murder, nothing less than an intent to kill will suffice. But -

I recognise the force of the contrary view that the outcome of intentionally inflicting serious harm can be so unpredictable that anyone prepared to act so wickedly has little ground for complaint if, where death results, he is convicted and punished as severely as one who intended to kill."

The verdict above was Guilty

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Does anyone doubt that setting out to have a square go involves a level of violence, and that violence could lead to harm coming to another, that any consequential harm, whatever the intensity, could have been foreseen and that the ultimate consequence could have been foreseen?

Interestingly, Tomy Martine - the guy whop shot and killed the burglar - was originally found guilty of murder. This was reduce to manslaughter on appeal.

The key has to be the circumstances of how the victim came into contact with the taxi, and whether it was a single contact or otherwise.

With the option of another course of action that could have avoided the death of the victim, I would suggest that the alleged existence of any weapon may prove irrelevant.

While perhaps understandable that one could act desperately and unreasonably in gthe face of even a life threatening attack, minimum force is all that is allowed in Law. One is not allowed to destroy an attacker unless that is the minimum force required to preserve your own life. Hard to prove.

I suspect that the actions of any victim will have little effect on the finding of guilt or otherwise. Although it could be offered in mitigation at sentencing.

Someone who works at ERI told me stevie Nolan has been admitted from saughton in a serious condition. No idea if this is crossed wires or true, anyone else here anything?

A good read and a fair point but:




"Accidentally" meaning there was no wicked act.

This is an English case and has absolutely no bearing or relevance to Scots criminal law.

Other than being persuasive like scots law cases to english lawyers and courts?

CC

_________________
Think of how stupid the average person is, and realize half of them are stupider than that.
George Carlin

No, it would not be at all persuasive. This case would never be referred to in a Scottish Criminal prosecution. The Scots criminal law in relation to the mens rea of murder was, unsurprisingly, very well established in 1981 and, indeed, the arguments in the case would not fit with the definition of murder in Scots law.

On the civil side, it is equally rare for a Scottish decision other than one emanating from the House of Lords (or now Supreme Court) to be offered in support of argument in an English Court. Different in the Scottish courts, mainly due to the voluminous number of decided cases on civil matters from the CoA and HoL/Supreme Court.

Not sure that English Law cases can't be quoted in respect of Scottish Criminal Law. When CRT tried to roust us in the Civil Court, it was entirely English precedent that QC Kinroy was quoting, without objection by Lord Emslie. hard to see why criminal Law should be any different in this respect. Particularly since all of our Law is now subservient to the European Court.

Anyway:

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b. Mens rea

Mens rea is the mental element, sometimes referred to, perhaps incorrectly, as "evil intent"or "[wicked intent]]". It correlates to the traditional Scottish term for the mental element of "dole". Hume defined "dole" as "the corrupt and evil intention, which is essential to the guilt of any crime." This is the conscious will on the part of the accused to commit the crime. In some cases, mens rea can be inferred even if it was not actually present, for example if during an assault, the accused beat another to such a degree that the other party had died as a result. Generally, the criminal law does not apply to anyone who has acted without mental fault. The requirement for a blameworthy state of mind serves to justify the punishement given. Statutory offences which impose strict liability are an exception to the common law principle.

Mens rea is often referred to as being assessed either objectively or subjectively. A subjective approach would require that the accused had foreseen the consequences of his actions. An objective approach would mean that the accused would be judged according to the standard of what he should have foreseen. In Scotland, it is objectively assessed.


Recklessness demonstrates less culpability than intention but more than negligence.

The modern definition of recklessness comes from R v [edited by admin] nin g ham [1957][9] and states that recklessness involves foreseeing the kind of harm that occurred and going ahead anyway. [edited by admin] recklessness is a subjective test since the jury need to decide what the defendant was thinking


Wrongfulness of intent also may vary the seriousness of an offense. A killing committed with specific intent to kill or with conscious recognition that death or serious bodily harm will result, would be murder, whereas a killing effected by reckless acts lacking such a consciousness could be manslaughter. On the other hand, it matters not who is actually harmed through a defendant's actions. The doctrine of transferred malice means, for instance, that if a man intends to strike a person with his belt, but the belt bounces off and hits another, mens rea is transferred from the intended target to the person who actually was struck.

Note: The notion of transferred intent does not exist within Scots' Law. In Scotland, one would not be charged with assault due to transferred intent, but instead assault due to recklessness.

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This says it all really. You're not entitled to use undue force. Causing someone's death, even when you perceive you're under attack, when you could have foreseen the outcome of your disproportionate actions, would suggest that mens rea has been established in Law.

In this case, being threatened with a knife could have been met with a response of sitting locked in your cab and calling the cops.

I've no doubt there was no original intent to cause such harm. Nor that it clearly escalated - for whatever reason.

But Mens Rea is determined at the point any decision may have been made to effect harm.

If the action was defensive, and proportionate, then it's not murder, although a lesser charge may be offered by the PF.

The difficulty would be in establishing that any action was defensive and there was good reason for not involving the cops.