Taxi Driver Online

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.

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.