Cawthorne v HMA 1968 JC 32
Citation: Cawthorne v HMA 1968 JC 32
Rule of thumb: If you recklessly fire shots from a gun to intimidate a group of people without aiming them at anyone directly, and it hits one of them but they do not die, what is the charge for this? The typical charge for that is still attempted murder.
Judgment:
The basic facts of this case were that Cawthorne was living with his mistress, and another woman also lived in the house. There was a heated argument and Cawthorne left. Cawthorne then returned and fired 2 warning shots at the house. 2 other men were then called to help and all 4 barricaded themselves inside a room in the house. Cawthorne then entered and fired several shots through the door of the room which they were in. 1 of the parties was injured and the other 3 were unharmed. Cawthorne was charged with attempted murder by the prosecution but the defence argued that firing the gun lacked the necessary designed intent for murder, with it rather being reckless, meaning that he should be convicted of a lesser charge of serious assault with a weapon. The jury held this on the facts of the case to be ‘attempted murder’ and Cawthorne was sentenced accordingly, ‘In my opinion attempted murder is just the same as murder in the eyes of our law, but for the one vital distinction, that the killing has not been brought off and the victim of the attack has escaped with his life. But there must be in each case the same mens rea, and that mens rea in each case can be proved by evidence of a deliberate intention to kill or by such recklessness as to show that the accused was regardless of the consequences of his act, whatever they may have been. I can find no justification in principle or in authority for the view .... that the mens rea in the case where life is actually taken can be established by evidence of a reckless disregard of the consequences of the act on the part of the accused, but that mens rea cannot be proved in that way where the charge is attempted murder’. Lord Justice General (Clyde), at page 68, ‘In my opinion attempted murder is just the same as murder in the eyes of our law, but for the one vital distinction, that the killing has not been brought off and the victim of the attack has escaped with his life. But there must be in each case the same mens rea, and that mens rea in each case can be proved by evidence of a deliberate intention to kill or by such recklessness as to show that the accused was regardless of the consequences of his act, whatever they may have been. I can find no justification in principle or in authority for the view .... that the mens rea in the case where life is actually taken can be established by evidence of a reckless disregard of the consequences of the act on the part of the accused, but that mens rea cannot be proved in that way where the charge is attempted murder’. Lord Justice General Clyde, at page 68
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