Criminal Liability Case Study

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Consider and explain the significance of motive and mens rea in the development of criminal liability in Scots law.

All crimes must have a behavioural element (the actus reus) and usually a mental element (the mens rea) for a person to be held criminally liable. It is widely accepted that the general rule is; the commission of an illicit act under criminal law (an actus reus) will not be satisfactory to prove any criminal liability unless an essential mental element is present. Each crime has its own mens rea requirement (with exceptions to offences of strict liability) and in order to fulfil that requirement the accused must indicate that particular mental state when committing the crime. However, the Crown need not prove motive as criminal law does not ask why the accused committed the crime, deeming motive less significant than mens rea in the development of criminal liability.

While motive may contribute to the prosecution when establishing its case, if the
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In a hypothetical situation when person 1 commits a crime because person 2 has threatened to kill their family and is holding them at gun point, they would fail in pleading that they did not have the sufficient mens rea. Their defence would be based on an acknowledgement that the accused 's underlying motive for acting—protecting his family—provides him with an justifiable reason for what would otherwise be a crime. Additionally, it is problematic to say motive is irrelevant as motive is an essential ingredient in mens rea for some statutory sexual offences, where it must be shown that the accuse acted for the purpose of sexual gratification, or to humiliate, distress or alarm the complainer. It is also a great importance in relation to a number of statutory offences in which prejudicial motives (based on race, religion, disability or sexual orientation, for example) are specified as a form of aggravation, meriting a more sever

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