Criminal law is a set of rules which govern the conduct of its citizens, and which, if these rules are broken, can punish this conduct by using sanctions. Though private prosecution is possible1, it is highly unusual and, in almost every instance, the Crown prosecutes on behalf of its citizens. In Scotland the Lord Advocate brings cases before the High Court if the charges are serious, with the Procurator Fiscal in charge of prosecuting more minor offences2, heard before the Sheriff and District Courts.
The criminal law consists of both written and unwritten rules – common-law offences like murder and rape, and statutory offences such as being drunk on public transport3 respectively. Both common law and statutory crimes require 'Actus Reus' ("Criminal Act") and 'Mens Rea' ("Criminal Mind"), unless the crime is one of strict liability4. Actus Reus is more than a mere though to commit a crime5, there has to be an act, be it the planning of a crime6 or physically committing a criminal act7, though in certain circumstances those omitting to comply with a duty can also be criminally liable8.
Mens Rea deals with the mental element to a crime, and usually looks at the intentions of those who committed the Actus Reus, though intention is not necessarily needed9. The term used in older Scots cases describes the mental element as 'dole', the literal meaning of which is 'evil intent, wrongdoing with a view to its consequences'10 and this, despite some recent developments11, remains the position in Scotland today.
The test of mens rea in Scottish criminal cases is an objective one, concerned by the reasonably foreseeable consequences of the actus reus12. Albert, Basil and Cyril have seized a branch of S. K. A. B and have, individually and collectively, committed acts which society, and the state, would view as being wrong. Which rules of the criminal law have they broken and what, if any, charges should the Lord Advocate bring against them? Albert has wired explosive charges to the windows and the back doors, resulting in the death of the bomb disposal expert.
He has also, while acting in unison with Basil and Cyril, taken the manager of the bank, who has recently suffered from a heart attack as a human shield, despite the bank manager showing clear signs of distress, and his hostage subsequently suffered a heart attack and died. Basil and Cyril combined to take hostage of the staff in an office and shoot a traffic warden with pellets from a pea-shooter, resulting in the deaths of the warden and 3 others, as well as a budgerigar. All three of the protesters were heavily armed.
It could be argued that the bank manager's death was caused by his poor medical condition, a novus actus interveniens. However, 'it has long been the policy of the law that those who use violence on other people must take their victims as they find them'13. Like HM Advocate v Robertson and Donoghue14, the victim is obviously in bad health15. Likewise the actions of the SAS, bursting thunderflashes and diving through the window, could be said to be a supervening cause for the death of the bank manager.
Case law shows that the courts are willing to convict the original actor even when the victim has contributed to their own death16, so it is unlikely that, in this instance, the rescue attempt of the SAS would be construed as breaking the causal link between Albert's actions and the bank manager's death. It is reasonably foreseeable that taking a clearly-ill man as a body shield in a hostage situation, where a rescue attempt by a law enforcement agency is likely, may result in the man having a heart attack and dying.
Albert, by wiring explosives, and rather ineptly at that, caused the death of the bomb disposal expert, but was the actions of the expert a novus actus interviens? Though the issue of self-endangerment by someone attempting a rescue has never came up before a criminal court in Scotland, the decision in Steel v Glasgow Iron and Steele co17 shows that a "mere error in judgement" on the part of the victim would not break this chain and it would not be broken if the attempt "was a reasonable one" and a "natural and probable consequence" of the original act.
Clearly, the attempt was a reasonable one, a probable consequence of Albert's actions and the expert's error of judgement would not constitute novus actus interveniens. Albert should be charged with the culpable homicide18 of both the bank manager and the bomb disposal expert, though, particularly in the instance of the death of the bomb disposal expert19, perhaps murder would be a more suitable charge20.
Similarly to Albert, could the subsequent consequences of firing pellets at the traffic warden be foreseen? Or would the actions of the traffic warden and/or the drivers constitute a novus actus interveniens? The traffic warden, by waving and swatting at what he thought to be wasps, it could be argued breaks the causal link between Basil and Cyril and the deaths of the two drivers, a passenger and the budgie – as it is his actions which prompt the drivers to rush forward, collide and the subsequent fatalities.
The courts in R v Roberts21 were of the opinion that only 'daft' actions by the victim would break the chain of causation. R v Williams and Davis22 set criterion as a test of actions that would break the chain – "whether it was reasonably foreseeable that some harm…. was likely to result from the threat itself; and secondly whether the deceased's reaction…. Was within the range of responses which might be expected from a victim placed in the situation he was". The deceased's act must be "proportionate to the threat".
These English decisions are somewhat more lenient towards the actor than in Scots criminal cases, where even daft acts by the victim, like taking drugs, were held not to break the causal link23. It is reasonably foreseeable that some harm will come from firing pellets from a pea-shooter at the traffic warden, and the reaction of the warden, in showing physical distress at these, is within the range of responses that could be expected from him and is wholly proportionate with the threat. Even applying the English test, then, it would appear that charges should be brought for causing the deaths.