Glossary of terms
This is a small collection of terms I will update as I use them on the site or I find them out or find them interesting. Any readers who find them and want to add to or correct any of the items on this list can contact me either through email or the comments page. This is largely the result of me wanting to know the terms and figuring if I’ve already written it down I may as well put it somewhere. My own notes are, to put it lightly, “standing on the shoulders of giants” and would be enough to make even the most lenient academic plagiarism board faint so I’m working on putting the definitions into more my own words.
- mala fides, lat, bad faith, used in contract law to show a contract not carried out in a equitable way and the party showing bad faith has attempted to gain an advantage in some dishonest way. A largely Continental principle which makes a large impact on Scottish contract law as a result. See also from wikipedia : è una motivazione comportamentale per la quale un individuo agisce in modo formalmente corretto, sebbene ..
- beyond reasonable doubt The standard of proof which is required for the conviction of a person accused of a criminal offence. Compare with the civil standard “balance of probabilities.” The burden of proof is institutionally laid on the the prosecution in criminal cases.
- utter, uttering In Scotland there is no criminal offence of forgery, instead the offence is called uttering and contains a mental element of knowledge that the article is false along with intention to deceive and a physical element which requires the sending of the false document. Closely tied up with fraud.
- mens rea – the mental element of a crime. For example murder requires intent to kill or wicked recklessness
- actus reus – the physical element of a crime. For example murder requires that someone is killed
- concurrency – for a charge to be relevant the two elements need to occur at the same time – so it is not murder if you intended to kill someone one month, stopped intending to the next month, and then killed them the third month.
- Special defence – the general defence is a robust defence on the evidence, rebutting evidence, showing doubt and trying to convince a jury if one is there. A special defence is a procedural shortcut which leads to a number of extra defences which have requirements and powers. Special defences need to be announced before the trial starts.
- Provocation – a mitigation which, although accepting you committed an offence you did so because you were so provoked by the actions of your victim that you effectively acted in reflex. Suitable in different forms for homicide, assault and other crimes.
- alibi Lat, “somewhere else.” A special defence providing a complete defence from any accusations if accepted. As it is a special defence the defending counsel must submit it in advance of the trial beginning and the burden of proof to prove that the person truly could not commit the crime. The Criminal Law Deskbook of Criminal Procedure states: “Alibi is different from all of the other defenses…it is based upon the premise that the defendant is truly innocent.”
- Automatism – a defence, generally looking at mens rea, where an accused lacks the mental element to do the crime they are accused of because they were acting as an automaton at the time with no conscious control of their actions. They accept that they have committed the physical aspect of the crime.
- Necessity – another defence where the accused accepts that they committed the offence but they only committed it because it was absolutely necessary for them to do so. Is a very high standard to meet – for example if you decide to drive drunk or excessively fast to escape an attacker you would have to stop the instant you were away from the attacker, and not just then go home.
- Diminished Responsibilty –
- Murder – the most serious crime against the person, requires for someone to have died and for the accused to be found to have deliberately killed them or acted so recklessly they didn’t care if the victim lived or died. Mandatory life sentence on conviction.
- Culpable Homicide – a less serious crime against the person involving a homicide but lacking the elements required for murder. Important difference because judges have discretion over how a long a sentence a “culpable homicider” should get, as opposed to the mandatory sentence for murder.
- Assault – a non fatal crime against the person. Has a wide margin for things that will classify. Public interest provides the main limitation on what sort of assaults will be prosecuted.
- Guilty – One of three verdicts possible in Scotland and the only one that convicts. If your judge or jury didn’t say the word “guilty” you’re presumed to be innocent.
- Not proven – The traditional verdict for people who were not convicted of a crime in Scotland, replaced the not guilty verdict for a while. Has the effect of acquitting the accused. Gets a bad press for being a “he’s guilty but they just couldn’t prove it verdict” – not necessarily true, it’s just that the prosecution failed to prove its case beyond reasonable doubt so they shouldn’t possibly convict.
- Not guilty – A resurrected verdict originally used in a case of jury nullification. Acquits the accused in the modern era.
- reasonable man – the reasonable man is just a man but more than that, he is not rash, he is not stupid, he does not lose control of himself (unless sufficiently provoked), he is not unusually clever. It’s used as an objective standard for what a reasonable person of general abilities will do. Can be altered by the discretion of the court.
- reasonable doctor – this is similar to the reasonable man standard but it replaces it with a doctor who behaves in the same way as the reasonable man except he has a medical degree. The same idea, the reasonable qualified person applies in other areas, for example driving (Nettleship).
European Community law