Cawthorne (Richard Graves) v HM Advocate

Factual and Procedural Background

This opinion concerns an appeal against a conviction for attempted murder. The appellant contended that under the applicable law, a jury cannot convict for attempted murder unless it is satisfied beyond reasonable doubt that the appellant discharged a firearm at any named person with deliberate intent to kill. The trial judge refused to direct the jury accordingly, and the appeal challenges the correctness of that refusal.

Legal Issues Presented

1. Whether the mens rea (criminal intent) required for attempted murder differs from that required for murder under Scots law.
2. Whether a jury must be directed that attempted murder conviction requires proof beyond reasonable doubt of deliberate intention to kill, excluding proof by reckless disregard of consequences.
3. Whether reckless conduct that would suffice to prove mens rea for murder can equally establish mens rea for attempted murder.

Arguments of the Parties

Appellant's Arguments

• The appellant argued that the jury must be directed that they cannot convict of attempted murder unless they are satisfied beyond reasonable doubt that the appellant deliberately intended to kill a named person by discharging a firearm.
• It was contended that the mens rea for attempted murder cannot be established by evidence of reckless disregard for life, unlike in murder cases.
• The appellant maintained that reckless acts, which if resulting in death would constitute murder, should not suffice to prove attempted murder if death did not occur.

Respondent's Arguments

• The respondent argued that under Scots law, the mens rea for attempted murder is the same as for murder, except that the victim survives.
• It was submitted that the mens rea can be established either by deliberate intention to kill or by wicked recklessness showing disregard for consequences.
• The respondent maintained that reckless conduct which would support a murder conviction if death occurred also supports a conviction for attempted murder if death does not occur.
• It was further argued that the jury may infer intent to murder from reckless acts, even if the accused did not aim at any particular individual.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by emphasizing that murder and attempted murder are common law crimes under Scots law, with murder defined as any wilful act causing death. The essential mens rea for murder can be established either by deliberate intention to kill or by wicked recklessness implying a depraved disregard for consequences.

The court held that attempted murder is the same crime as murder except that death does not occur, requiring the same quality of mens rea. The court rejected the appellant's contention that recklessness suffices for murder but not for attempted murder, reasoning that the intent behind the act does not differ simply because the victim survives by chance or good fortune.

The court relied on authoritative texts, including Alison's Criminal Law and Macdonald on Crimes, which support the inference of intent from reckless acts. The court illustrated that reckless conduct, such as indiscriminately firing a machine gun, would justify a jury finding intent to murder even if no one was specifically targeted or injured.

The court further explained that the jury's task is to infer intent from the accused's words and conduct, and that reckless acts may be sufficient to establish the requisite intent for attempted murder. The court emphasized that the quality of the mens rea is not affected by the actual consequence of the act if the intent to kill or recklessness as to life is established.

Accordingly, the court found the trial judge's refusal to give the requested direction was correct and that the directions given were proper and consistent with Scots law principles.

Holding and Implications

The court refused the application for leave to appeal against conviction, upholding the trial judge's directions to the jury and confirming that under Scots law, the mens rea for attempted murder can be established either by deliberate intention to kill or by wicked recklessness showing disregard for life.

The direct effect of this decision is to affirm that a jury may convict for attempted murder based on reckless conduct that would suffice for murder if death had ensued. No new precedent was set, but the ruling clarifies and confirms existing principles in Scots criminal law regarding the equivalence of mens rea for murder and attempted murder.