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The Intimacy of Assault Essay
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An essay depicting the issues of the intimacy of assault.
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‘Discuss how the Scottish Courts have interpreted and applied the rules ofcausation in Scottish criminal law.’
Causation is the connection between conduct and result, which is essential in
differentiating a factual case from one which is legally relevant. The actus reus refers to
the action of the accused whilst the mens rea considers the state of mind of the
accused; both elements must be combined for a conviction, and proof of both alongside
causation must be used to determine criminal responsibility of result crimes. There are
both factual and legal causation principles, which will be focused on within this essay,
that have been applied as rules of causation by the Scottish Courts and are relevant
within the criminal law system in Scotland.
A principle of factual causation is the ‘but for’ (sine qua non) test: but for the act of the
accused, the result would not have occurred. All cases must meet this factual principle
of causation. An example is given in ‘criminal law’ by Taggart and Jones which asks “but
for the conduct of the accused, would the victim have died?” and states that material
contribution is also required. However, not all cases which satisfy the ‘but for’ test can
result in criminal liability, such as in the case of Mcdonald v HM Advocate. McDonald
appealed his conviction of culpable homicide. McDonald and the co-accused broke into
the flat of the victim and assaulted him, before taking his key and locking him inside his
flat. The victim had taken drugs, and later climbed out of his window but fell to his death.
The accused challenged that there was a causal link between his actions and the victim
dying by arguing that there was no evidence to suggest the victim knew the door was
locked and had no other way out. The court held the original conviction and the appeal
was dismissed as the attack happened within a proximate time of the victim dying and
inferred that the victim was trying to escape,so whether the victim knew of the locked
door or not was not important. Other significant cases for factual causation include
Hendry v HM Advocate and Robertson & Donoghue v HM Advocate.
In addition to the ‘but for’ test a secondary test may be used, which is whether the
accused’s act was the proximate or legal cause of the harm – were the actions the
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