UOL External Paper 2003 Zone A Question 1
Adam who had a long history of mental illness, had just lost his job and was feeling very depressed. He went to his local bar and ordered a glass of orange juice. He was clearly very agitated. Bill, the barman, seeking to calm Adam, secretly laced his vodka with a drug. In most cases this drug would have sedated Adam but Adam proved allergic to the drug and he went berserk. He smashed a glass before throwing it at Bill – though it missed and knocked a lamp which caused a small fire in the storeroom. He called Clarissa a whore and punched her.
Advise the parties of their criminal liability.
Bill (B) putting a drug into Adam’s (A) orange juice
B could be held liable for a S.24 offence under the OAPA 1861 (maliciously administering a noxious thing, etc with intent to injure, aggrieve or annoy another person). The contentious issue here is whether the sedative drug would amount to a noxious thing and the fact that B had no intent to injure, aggrieve or annoy. In R v Marcus, noxious was broadly interpreted if it posed a danger to a person and in R v Cato
a substance is noxious if it is liable to cause injury in common use. It matters not that B’s intention was only to calm Adam as long as there was recklessness on B’s part i.e. a foreseeable risk of some harm and in this regard might be seen as an inchoate offence. B would probably not be liable for the more serious offence under S.23 which includes a further element so as to endanger life or inflict grievous bodily harm and is seen as a result oriented crime (A.Ashworth "Defining Criminal Offences without Harm"). The administering of the drug would extend to self administration if there was assistance – Kennedy (No 2) where D caused to be taken by V a noxious substance although it can be argued that the free and informed decision by D may break the chain of causation.
If B had administered the noxious substance with intent to have sex he could additionally be charged under S.61 of the Sexual Offences Act 2003. The intention would be to stupefy or overpower A so as to enable any person to engage in sexual activity that involves A.
A smashing the glass
A has committed an offence under S1(1) Criminal Damage Act 1971 causing damage intentionally or recklessly. The damage would clearly involve some expense for the barman to replace the glass (Roe v Kingerlee) but it is arguable if A could have formed the intention or was reckless in the subjective sense - R v Cunningham (R v G (and another) overulling the previous objective test in R v Caldwell for criminal damage cases. If Adam destroyed the glass with intent to endanger B’s life, he could be liable for a S1(2) offence – in addition to causing damage, endangering the life of another intentionally or recklessly. Additionally A could be liable for arson under S1(3) for destroying or damaging the store room by fire.
A throwing the glass at B
Since there is no touching there is no offence of battery (the infliction of unlawful personal violence on another intentionally or recklessly) nor is there an offence under S.47 of the OAPA 1861(assault occasioning actual bodily harm) committed. One could argue that there is an attempt to commit such an offence since Adam had the intention to apply force (R v Whybrow) and the act more was more than merely preparatory (R v Stonehouse). One could even argue that there was an attempt to commit a S.20 offence (wounding or inflicting grievous bodily harm) or a S.18 offence (wounding or causing grievous bodily harm with intent).
A calling Clarissa (C) a whore and punching her
Would amount to assault if there in an apprehension of immediate and unlawful personal violence and done intentionally or recklessly : Fagan v MPC. A’s words would amount to an assault if it is enough that C believes that violence would follow : R v Ireland and Burstow. There doesn’t have to be proof of any harm and fear is not an essential element : Faulkner v Talbot. It must be proved that A either intended to cause or was aware of a risk of causing C to apprehend immediate, unlawful personal violence : R v Venna.
Would amount to a battery if there was unlawful or non consensual touching intentionally or recklessly : R amount to sexual assault covering non consensual conduct contrary to S.14 and S.15 the Sexual Offences Act.
If there was actual bodily harm this could amount to a S.47 offence – assault occasioning actual bodily harm. The hurt or injury sustained must be calculated to interfere with the health or comfort of the victim : R v Miller. For a S. 47 the foresight required is the same as that required for common law battery and there is no requirement to show intention or recklessness in respect of any injury caused. The application of the principle of half mens rea makes it easier to establish a liability for a S.47 offence where the harm is greater than planned following R v Savage confirming R v Roberts. Actual bodily harm would include psychiatric injury : R v Chan Fook.
If the harm caused is serious : R v Saunders this could amount to a S.20 offence – maliciously wounding or inflicting grievous bodily harm. This would require evidence of wounding i.e. broken skin (R v Metherum). For a S.20 offence there must be some foresight of some harm although not necessarily the magnitude of harm : DPP v Parmenter confirming R v Mowatt. This catches situations where the defendant does not foresee the risk of GBH which happens. There need not be direct infliction of GBH it can be indirect : R v Martin. There need not be an application of force : R v Dica.
For A to be liable for a S.18 offence, it must be shown that A had the intention to wound or cause GBH. It must be shown that there was an ulterior intent and that GBH was a virtual certainty (R v Mandair). It must be proved that there was a causal link between A throwing the punch and the harm caused.
A’s defence
Insanity
A could raise the defence of insanity. According to M’Naghten rules he would have to prove on the balance of probabilities that he had a defect of reason caused by a disease of the mind (Bratty v AG for Northern Ireland) which prompted him not to realize the nature and quality of his acts R v Coder or not to realise that it was wrong : R v Windle. For the defence to be successful, A must prove that his disease is an internal causes : R v Sullivan – defence completely unavailable to intoxicated defendants as the disease of the mind cannot be the result of an external factor. According to R v Rennie – drunkenness is not insanity. Also the law not only considers the state of mind (or lack of it) but also how it came about. The justification for this is to exclude defects of reason caused simply by brutish stupidity as well as to exclude dissociative states resulting from psychological blows : R v Rabey.
The difficulty here is determining whether the long history of mental illness manifests itself in insanity or whether whether he is merely depressed which as a result of losing his job – an external cause – which will not be relevant to the defence of insanity (R v Seers). Also any indication of a momentary lapse where A could reason would negate the defence : R v Clarke. Insanity is a general defence to all crimes (unable to form mens rea) and A will be found not guilty by reason of insanity and confined to a mental hospital at her majesty’s pleasure.
Adam may have a better chance if raising the defence of intoxication. Intoxication would impair his ability to form the mens rea. His vodka has been secretly laced with drugs. With regard to the alcohol A has voluntarily ingested it. The effect of intoxication on his state of mind was only relevant to crimes of specific intent as the defendant’s recklessness in taking the drugs that rendered his behaviour uncontrolled and unpredictable was in itself sufficient to substitute for the mens rea of the offence in crimes of basic intent : DPP v Majewski. A can therefore be liable for all the crimes mentioned except the S.18 offence which is a specific intent crime requiring intention.
If it cannot be proved that A has voluntarily ingested the alcohol by virtue of the mixture of drugs, than he can turn to the defence of involuntary intoxication where the consumption is not deliberate which would be a defence to both crimes of specific and basic intent provided that the defendant did not form the requisite mens rea for the offences involved : R v Kingston following R v Sheehan which stated that a drunken intent is still an intent. An intention formed whilst sober will not disappear as a result of drinking to gain Dutch courage : AG for Northern Ireland v Gallagher.
A may be able to claim a defence for voluntary intoxication by a drug. In R v Lipman it was held that the same principles that apply to intoxication by alcohol would apply to drugs for both voluntary and involuntary intoxication. R v Hardie suggests that drugs must be divided into two categories. Where it is common knowledge that a drug is liable to cause the taker to become aggressive or do dangerous and unpredictable things that drug is to be classed with alcohol. Where it is merely a soporific drug if taken voluntarily will result in involuntary intoxication provided the defendant was not reckless in taking the drug.
About Me
- Justin Santiago
- Justin Santiago, BAppSc (Hons), MBA, LLB (Hons) comes from a journalism, market research, intellectual property and strategic communications consulting background. Now based in Melbourne he spends his time advising businesses on how to communicate to their customers as well as writing on various subjects of interest in this blog.
Friday, January 30, 2009
Secondary Offenders
The variation on the intent of the primary party outside the scope of the plan will absolve the secondary party of guilt of the crime - Justin Santiago
Secondary offenders are parties who aids, abets, counsels or procures the commission of an indictable offence by the principal offender and the the Accessories and Abettors Act 1861 states that a secondary party shall be tried, indicted and punished as a principal offender. A can be charged for all the crimes against C that B has been charged with provided that the three criteria for liability are fulfilled– the offence must be committed, there must be aiding, abetting, counseling or procuring and that A must know that he is aiding, abetting, counseling or procuring the offence : R v Mahmud. It may not be necessary for the prosecution to prove that A intended that the crime be committed simply foreseeability that it would be committed (i.e. recklessness may suffice) : R v Rook. Furthermore there must be some form of causal connection between the assistance and the offence i.e. that A’s assistance was connected to the various offences : R v Bryce.
It would be very difficult for the secondary party to absolve himself of guilt as the law is not accommodating to secondary offenders even where the crime is outside the original plan. It is sufficient that the secondary party foresaw the type of crime to be committed, not necessarily the specific crime that was committed. It is also sufficient to know of the intention of the principal offender and the knowledge of a weapon or choice of weapon would be immaterial.
According to AG’s Reference No. 1 of 1975, the actus reus elements aid, abet, counsel and procure takes on the ordinary meaning of the words and that all required some form of causal connection between the assistance and the offence : R v Bryce. In this case it was also decided that there need not be demonstrated that the acts of assistance were performed at a time when intention was formed. The mes rea of secondary parties is a combination of intention and knowledge and as summed up in R v Rook consists of two elements : intentionally doing an act knowing it is capable of assisting, encouraging or procuring the principal and at the time of the act of assisting, encouraging or procuring contemplated or foresaw the commission of the offence.
The variation of intent of the primary party falls within the second requirement which is foresight or contemplation of the offence. It has been decided that it is not necessary for the secondary party to have foreseen or contemplated the precise crime intended, what is necessary is only the type of offence committed that must be foreseen or contemplated : R v Bainbridge.
In DPP for Northern Ireland v Maxwell this principal was extended further to include the foresight or contemplation of one of a range of possible offences. In R v Hyde and Others it was sufficient that the secondary party realizes (without necessarily agreeing) the commission of the offence. In R v Powell knowledge of the presence of a weapon that was capable of committing murder was sufficient to convict the secondary party as an accessory to murder. In R v O’Flaherty, obiter that it was immaterial the means by which death is achieved, what is material is the intention to kill or cause grievous bodily harm.
To absolve onself of the crime, the secondary party has to give timely and unequivocal notice to others that his is not going to be involved. It is not enough for an accessory to inform other that he is not takeing part, it must be clear that he is disassociating himself from the enterprise : R v Becerra.
Secondary offenders are parties who aids, abets, counsels or procures the commission of an indictable offence by the principal offender and the the Accessories and Abettors Act 1861 states that a secondary party shall be tried, indicted and punished as a principal offender. A can be charged for all the crimes against C that B has been charged with provided that the three criteria for liability are fulfilled– the offence must be committed, there must be aiding, abetting, counseling or procuring and that A must know that he is aiding, abetting, counseling or procuring the offence : R v Mahmud. It may not be necessary for the prosecution to prove that A intended that the crime be committed simply foreseeability that it would be committed (i.e. recklessness may suffice) : R v Rook. Furthermore there must be some form of causal connection between the assistance and the offence i.e. that A’s assistance was connected to the various offences : R v Bryce.
It would be very difficult for the secondary party to absolve himself of guilt as the law is not accommodating to secondary offenders even where the crime is outside the original plan. It is sufficient that the secondary party foresaw the type of crime to be committed, not necessarily the specific crime that was committed. It is also sufficient to know of the intention of the principal offender and the knowledge of a weapon or choice of weapon would be immaterial.
According to AG’s Reference No. 1 of 1975, the actus reus elements aid, abet, counsel and procure takes on the ordinary meaning of the words and that all required some form of causal connection between the assistance and the offence : R v Bryce. In this case it was also decided that there need not be demonstrated that the acts of assistance were performed at a time when intention was formed. The mes rea of secondary parties is a combination of intention and knowledge and as summed up in R v Rook consists of two elements : intentionally doing an act knowing it is capable of assisting, encouraging or procuring the principal and at the time of the act of assisting, encouraging or procuring contemplated or foresaw the commission of the offence.
The variation of intent of the primary party falls within the second requirement which is foresight or contemplation of the offence. It has been decided that it is not necessary for the secondary party to have foreseen or contemplated the precise crime intended, what is necessary is only the type of offence committed that must be foreseen or contemplated : R v Bainbridge.
In DPP for Northern Ireland v Maxwell this principal was extended further to include the foresight or contemplation of one of a range of possible offences. In R v Hyde and Others it was sufficient that the secondary party realizes (without necessarily agreeing) the commission of the offence. In R v Powell knowledge of the presence of a weapon that was capable of committing murder was sufficient to convict the secondary party as an accessory to murder. In R v O’Flaherty, obiter that it was immaterial the means by which death is achieved, what is material is the intention to kill or cause grievous bodily harm.
To absolve onself of the crime, the secondary party has to give timely and unequivocal notice to others that his is not going to be involved. It is not enough for an accessory to inform other that he is not takeing part, it must be clear that he is disassociating himself from the enterprise : R v Becerra.
Causation
The argument that ‘it wouldn’t have happened if the doctors hadn’t made such a mess of it’ has never been one with much chance of success in a criminal case - Justin Santiago
The courts have adopted a particularly strict approach to breaks in the chain of causation involving the conduct of medical professionals. It is for policy decisions that medical personnel are not held guilty of a crime since they are under a duty to act and are doing so in a fully informed manner to help in administering treatment in potentially life threatening situations. The courts have decided that the orginal wound must have ceased to operate AND the subsequent treatment was palpably abnormal.
Legal causation is important in all result crimes i.e. crimes such as murder which result in a prohibited consequence such as death. Legal causation differs from factual causation in that it seeks to find the most blameworthy factual cause as the basis for liability even if this is not the most immediate cause of death. An intervening act such as medical negligence may operate to break the chain of causation. There are several criteria by which the accused would still be liable regardless of negligent medical treatment :
1. If at the time of death, the original wounds or injuries inflicted by him were still an operative cause of that death
2. The accused would be convicted if the reason for death was a foreseeable consequence of his actions
3. The accused must take his victim as he finds him : R v Blaue
However a long line of cases have upheld the contention that to convict medical personnel for incorrectly administering treatment would require very strict tests. In R v Malcherek it was decided if the treatment is given bona fide by competent and careful medical practitioners, then the fact that the victim died will not exonerate the original assailant from responsibility for death.
In R v Jordan it was held that the medical treatment must have been palpably wrong to break the chain of causation and remove liability for causing death. Accordign to the court, death which resulted from normal medical treatment would not break the chain of causation.
In the case of R v Smith it was held that the medical treatment must be so overwhelmingly bad as to make the original wound merely part of the history would there be liability on the part of the doctors. If the original wound is still an operating and substantial cause then death can properly be said to be the result of the wound.
In R v Cheshire it was held by the Court of Appeal that although the trial judge had been wrong in misdirecting the jury that only recklessness on the part of doctors would break the chain of causation it was only in the most extraordinary cases that medical treatment of any injury would break the chain of causation. A number of further points were brought up that absolved the doctors from any liability. That the acts by the accused need not be the sole cause or even the main case of death. It need only contribute significantly to the result. The medical treatment can only exclude the accused if it was so independent of the accused’s act and itself was so potent in causing death so as to make the accused’s act insignificant.
Following R v Mellor in medical negligence cases, less emphasis would be placed on wrongful medical treatment due to policy reasons. As long as the other causes of death were a significant cause, these would have more bearing on the case.
In the case of medical cases where the doctor voluntarily end the life of a patient he would not be able to avail himself of the defence of necessity although as it is not a defence to murder : R v Dudley & Stephens. This is contrasted with Re A (conjoined twins) where the defence was allowed in cases where it was a lawful medical procedure an there was reference to a respectable body of opinion : R v Bolitho. It seems that the courts now do recognize a special defence for a doctor under certain circumstances. In Airdale NHS Trust v Bland, it was referred obiter that a doctor may, when caring for a patient who is dying, lawfully administer painkilling drugs, despite the fact that he knows that an incidental effect of that application will be to abbreviate the patient’s life.
The courts have adopted a particularly strict approach to breaks in the chain of causation involving the conduct of medical professionals. It is for policy decisions that medical personnel are not held guilty of a crime since they are under a duty to act and are doing so in a fully informed manner to help in administering treatment in potentially life threatening situations. The courts have decided that the orginal wound must have ceased to operate AND the subsequent treatment was palpably abnormal.
Legal causation is important in all result crimes i.e. crimes such as murder which result in a prohibited consequence such as death. Legal causation differs from factual causation in that it seeks to find the most blameworthy factual cause as the basis for liability even if this is not the most immediate cause of death. An intervening act such as medical negligence may operate to break the chain of causation. There are several criteria by which the accused would still be liable regardless of negligent medical treatment :
1. If at the time of death, the original wounds or injuries inflicted by him were still an operative cause of that death
2. The accused would be convicted if the reason for death was a foreseeable consequence of his actions
3. The accused must take his victim as he finds him : R v Blaue
However a long line of cases have upheld the contention that to convict medical personnel for incorrectly administering treatment would require very strict tests. In R v Malcherek it was decided if the treatment is given bona fide by competent and careful medical practitioners, then the fact that the victim died will not exonerate the original assailant from responsibility for death.
In R v Jordan it was held that the medical treatment must have been palpably wrong to break the chain of causation and remove liability for causing death. Accordign to the court, death which resulted from normal medical treatment would not break the chain of causation.
In the case of R v Smith it was held that the medical treatment must be so overwhelmingly bad as to make the original wound merely part of the history would there be liability on the part of the doctors. If the original wound is still an operating and substantial cause then death can properly be said to be the result of the wound.
In R v Cheshire it was held by the Court of Appeal that although the trial judge had been wrong in misdirecting the jury that only recklessness on the part of doctors would break the chain of causation it was only in the most extraordinary cases that medical treatment of any injury would break the chain of causation. A number of further points were brought up that absolved the doctors from any liability. That the acts by the accused need not be the sole cause or even the main case of death. It need only contribute significantly to the result. The medical treatment can only exclude the accused if it was so independent of the accused’s act and itself was so potent in causing death so as to make the accused’s act insignificant.
Following R v Mellor in medical negligence cases, less emphasis would be placed on wrongful medical treatment due to policy reasons. As long as the other causes of death were a significant cause, these would have more bearing on the case.
In the case of medical cases where the doctor voluntarily end the life of a patient he would not be able to avail himself of the defence of necessity although as it is not a defence to murder : R v Dudley & Stephens. This is contrasted with Re A (conjoined twins) where the defence was allowed in cases where it was a lawful medical procedure an there was reference to a respectable body of opinion : R v Bolitho. It seems that the courts now do recognize a special defence for a doctor under certain circumstances. In Airdale NHS Trust v Bland, it was referred obiter that a doctor may, when caring for a patient who is dying, lawfully administer painkilling drugs, despite the fact that he knows that an incidental effect of that application will be to abbreviate the patient’s life.
Omission
Liability for omission should not be part of English Criminal Law - Justin Santiago
In creating a liability for omission it is important that omission is properly defined and its parameters set so that people are governed by the law as well as by duties as reasonably expected of them. Doing away with liability for omission or restricting liability for omission in very narrow terms in only clear and serious cases may result in a society that did not assume a duty of care with the concomitant extinguishing of the neighbourhood principle and laws relating to negligence. There is also the apparent overlap between omission and act which makes it even more difficult to exclude liability for an omission.
The current law on omission states that there is no liability in criminal law for omissions except in situations where there is a duty to act. Such a duty can arise in various ways : via statute : S 170(4) of the Road Traffic Act 1988 imposes a duty upon a driver involved in an accident to report it to the police or provide his details to other parties involved.
It can also arise via contract : criminal liability will be imposed if what the person was contractually bound to do causes harm or injury when not done. In R v Pittwood a gatekeeper failed to close the gates causing the death of someone.
If there is a special relationship : certain realationships create a duty to act for example parent/child, husband/wife and doctor/patient. These are relationships whether there is dependence, reliance and responsibility : Gibbins and Proctor.
If there is a voluntary assumption of care : a person who has assumed a duty cannot cast of that duty : R v Stone, R v Dobinson.
Dangerous situations : where the accused creates a dangerous situation, it is the duty of the accused to act to extinguish the dangerous situation : R v Miller.
If anything the law has widened the liability for omissions especially with regard to voluntary assumption of care and dangerous situations where there were some positive acts committed at the outset.
It is also not easy to distinguish between an act and an omission. For a doctor, a duty to keep a patient alive extends to a duty not to kill. Parents owe a duty to their children but they also owe a duty not to refuse treatment for their child who was suffering from a serious disease: Re B (A Minor). The position seems to be the same with that of an elderly patient who was incapable of making decisions.
These decisions are made only with the sanction of the courts who are deemed to be the ultimate deciders of whether an omission would amount to a crime. The case of Airedale National Health Services Trust v Bland required that an application for a declaration to discontinue treatment be approved by a court.
In creating a liability for omission it is important that omission is properly defined and its parameters set so that people are governed by the law as well as by duties as reasonably expected of them. Doing away with liability for omission or restricting liability for omission in very narrow terms in only clear and serious cases may result in a society that did not assume a duty of care with the concomitant extinguishing of the neighbourhood principle and laws relating to negligence. There is also the apparent overlap between omission and act which makes it even more difficult to exclude liability for an omission.
The current law on omission states that there is no liability in criminal law for omissions except in situations where there is a duty to act. Such a duty can arise in various ways : via statute : S 170(4) of the Road Traffic Act 1988 imposes a duty upon a driver involved in an accident to report it to the police or provide his details to other parties involved.
It can also arise via contract : criminal liability will be imposed if what the person was contractually bound to do causes harm or injury when not done. In R v Pittwood a gatekeeper failed to close the gates causing the death of someone.
If there is a special relationship : certain realationships create a duty to act for example parent/child, husband/wife and doctor/patient. These are relationships whether there is dependence, reliance and responsibility : Gibbins and Proctor.
If there is a voluntary assumption of care : a person who has assumed a duty cannot cast of that duty : R v Stone, R v Dobinson.
Dangerous situations : where the accused creates a dangerous situation, it is the duty of the accused to act to extinguish the dangerous situation : R v Miller.
If anything the law has widened the liability for omissions especially with regard to voluntary assumption of care and dangerous situations where there were some positive acts committed at the outset.
It is also not easy to distinguish between an act and an omission. For a doctor, a duty to keep a patient alive extends to a duty not to kill. Parents owe a duty to their children but they also owe a duty not to refuse treatment for their child who was suffering from a serious disease: Re B (A Minor). The position seems to be the same with that of an elderly patient who was incapable of making decisions.
These decisions are made only with the sanction of the courts who are deemed to be the ultimate deciders of whether an omission would amount to a crime. The case of Airedale National Health Services Trust v Bland required that an application for a declaration to discontinue treatment be approved by a court.
Provocation
How have the courts dealt with the issue of whether characteristics other than age and sex, attributable to the reasonable man, for the purpose of Section 3 of the Homicide Act 1957 should be relevant not only to the gravity of the provocation to him but also to the standard of self-control to be expected? - Justin Santiago
Section 3 of the Homicide Act 1957 deals with provocation, a defined mitigating circumstance which reduce the level of mens rea and reduce a charge of murder to voluntary manslaughter which carries a lesser sentence than murder. It would have to be proved whether the defendant was sufficiently provoked to temporarily lose his or her self control.
The relevance of characteristics other than age and sex to the gravity of the provocation as well as to the standard of self control to be expected was expounded in R v Smith (Morgan) which is said to have opened the floodgates to the defence too widely and in doing so had diluted the objective test in provocation as well as incorporating elements of diminished responsibility which is another defence altogether. This decision has not been followed by subsequent decisions of courts even of lower standing.
The bad treatment of provocation by the courts can be blamed solely on Section 3 of the Homicide Act 1957 which tries to use both an objective test and a subjective test in determining whether the defendant could avail himself of this defence which is one of the defined mitigating circumstances which reduces the crime of murder to voluntary manslaughter.
There are two elements to this defence which are identified as :-
a. whether the defendant was provoked to lost his self control (subjective test)
b. was the provocation enough to make a reasonable man do as he did (objective test)
The first element sets up the defence, the second sets the limit. It is the second element which determines the level of self control required which has vexed and often strained the learned judges and led to confusion. It is very difficult to equate the level of self control of the reasonable man i.e. someone with ordinary powers of self control with someone who is provoke as he has a sudden and temporary loss of self-control rendering him for the moment not master of his mind : R v Duffy.
The courts have tried to justify this bad law by coming out with their own reasoning and in the process providing all sorts of characteristics to the reasonable man to justify their judgements.
DPP v Camplin thought it was important that the D be judged against the reasonable man with the same age and sex. This was probably due to reasons no more than the fact that the defendant was a 15 year old boy. It was later held in R v Morhall that the characteristic of the D that affecting the gravity of the provocation is material. In the words of Lord Goff, “if an old lag, now trying to go straight, was taunted with being a jailbird, it would not make much sense to tell the jury to consider the effect of such provocation on a man of good character. This widened the characteristics of the reasonable man to include those characteristics that were directly related to the provocation. In Luc Thiet Thuan v R, this point was emphasized and that if the D’s characteristics was not relevant if it did not form the subject of the taunts.
The characteristics of the reasonable man were widened in R v Ahluwahlia where the courts said in obiter that battered woman syndrome which was a mental abnormality might be a relevant characteristic for the purpose of the objective test in provocation. This extension of the characteristics of the reasonable man to include mental abnormalities is clearly wrong since this unacceptably extends the application of the defence of diminished responsibility circumstances what should fall exclusively within the defence of provocation.
Section 2 of the Homicide Act specifically creates the defence of diminished responsibility, which provide an excuse for those whose mental responsibility is impaired as a result of an abnormality of mind. According to Mackay and Mitchell in their article "Provoking Diminished Responsibility : Two Pleas Merging into One" by allowing abnormal psychiatric conditions as such to be attributed to the reasonable man, this indirectly incorporates an element of dimininished responsibility into the law of provocation. This is clearly confusing since the burden of proof differs for both these defences. For provocation the burden is on the prosecution to disprove whereas for diminished responsibility the burden is on the defendant to prove - (S2(6) Homicide Act 1957). Thus by raising the defence of provocation and introducing medical evidence of an abnormal psychiatric condition impairing the defendant’s powers of self control, the defendant could evade the burden of proof imposed by S2(6).
The House of Lords case of went even further in R v Smith (Morgan) by having the reasonable man take into account all characteristics of the accused (excluding male possessiveness and jealousy which were deemed unacceptable reasons for loss of self control) when deciding on whether the provocation would have made the D do what he did. Thus ALL characteristics would be relevant to the gravity of the provocation AND D’s ability to exercise self control. This reasoning significantly enlarged the scope of the defence of provocation and broadened the earlier tests to such a degree that it diluted the objective test in S3.
In the Privy Council case of A-G for Jersey v Holley it was held that the defendant’s alcoholism was not a matter to be taken into account in determining whether a person with ordinary powers of self control would have done what the defendant did. This left the doors made wide open by Smith (Morgan) slightly ajar. But it could also be interpreted to mean the courts’ reluctance in allowing intoxication as a defence not only in murder but in other crimes as well.
In the Court of Appeal case of Faqir Mohammed the narrow and strict test of a man with ordinary powers of self control were applied to the defendant who had a violent temperament, had strong religious beliefs and had depression. All these factors were not taken into account which wrought further damage on the wider test of excusability espoused by Smith (Morgan). This was surprising considering the doctrine of stare decisis was not followed in this case. Later cases R v James did not consider psychiatric evidence demonstrating that the appelant’s ability to control his behaviour would be impaired and R v Karimi did not take the appelant’s ability to control his behaviour was impaired by post traumatic stress disorder followed Holley rather than Smith (Morgan) and is indicative that this case may be ruled by a later House of Lords case.
In light of these conflicting decisions and the fact that there is mandatory sentencing for murder, there is urgent need of reform so that the law is clear on the standard of self control to be expected. Some like Mackay and Mithcell have called for the defendant to be judged with due regard to all the circumstances including any disability physical or mental from which he suffered removing the difficulties associated with the objective test. Others have called for a scrapping of the defence in light of reforms to mandatory sentencing for murder. The Law Commission’s most recent proposals have called for the removal of the defence from the jury if no reasonable jury properly directed could conclude that the conduct was provocative.
Section 3 of the Homicide Act 1957 deals with provocation, a defined mitigating circumstance which reduce the level of mens rea and reduce a charge of murder to voluntary manslaughter which carries a lesser sentence than murder. It would have to be proved whether the defendant was sufficiently provoked to temporarily lose his or her self control.
The relevance of characteristics other than age and sex to the gravity of the provocation as well as to the standard of self control to be expected was expounded in R v Smith (Morgan) which is said to have opened the floodgates to the defence too widely and in doing so had diluted the objective test in provocation as well as incorporating elements of diminished responsibility which is another defence altogether. This decision has not been followed by subsequent decisions of courts even of lower standing.
The bad treatment of provocation by the courts can be blamed solely on Section 3 of the Homicide Act 1957 which tries to use both an objective test and a subjective test in determining whether the defendant could avail himself of this defence which is one of the defined mitigating circumstances which reduces the crime of murder to voluntary manslaughter.
There are two elements to this defence which are identified as :-
a. whether the defendant was provoked to lost his self control (subjective test)
b. was the provocation enough to make a reasonable man do as he did (objective test)
The first element sets up the defence, the second sets the limit. It is the second element which determines the level of self control required which has vexed and often strained the learned judges and led to confusion. It is very difficult to equate the level of self control of the reasonable man i.e. someone with ordinary powers of self control with someone who is provoke as he has a sudden and temporary loss of self-control rendering him for the moment not master of his mind : R v Duffy.
The courts have tried to justify this bad law by coming out with their own reasoning and in the process providing all sorts of characteristics to the reasonable man to justify their judgements.
DPP v Camplin thought it was important that the D be judged against the reasonable man with the same age and sex. This was probably due to reasons no more than the fact that the defendant was a 15 year old boy. It was later held in R v Morhall that the characteristic of the D that affecting the gravity of the provocation is material. In the words of Lord Goff, “if an old lag, now trying to go straight, was taunted with being a jailbird, it would not make much sense to tell the jury to consider the effect of such provocation on a man of good character. This widened the characteristics of the reasonable man to include those characteristics that were directly related to the provocation. In Luc Thiet Thuan v R, this point was emphasized and that if the D’s characteristics was not relevant if it did not form the subject of the taunts.
The characteristics of the reasonable man were widened in R v Ahluwahlia where the courts said in obiter that battered woman syndrome which was a mental abnormality might be a relevant characteristic for the purpose of the objective test in provocation. This extension of the characteristics of the reasonable man to include mental abnormalities is clearly wrong since this unacceptably extends the application of the defence of diminished responsibility circumstances what should fall exclusively within the defence of provocation.
Section 2 of the Homicide Act specifically creates the defence of diminished responsibility, which provide an excuse for those whose mental responsibility is impaired as a result of an abnormality of mind. According to Mackay and Mitchell in their article "Provoking Diminished Responsibility : Two Pleas Merging into One" by allowing abnormal psychiatric conditions as such to be attributed to the reasonable man, this indirectly incorporates an element of dimininished responsibility into the law of provocation. This is clearly confusing since the burden of proof differs for both these defences. For provocation the burden is on the prosecution to disprove whereas for diminished responsibility the burden is on the defendant to prove - (S2(6) Homicide Act 1957). Thus by raising the defence of provocation and introducing medical evidence of an abnormal psychiatric condition impairing the defendant’s powers of self control, the defendant could evade the burden of proof imposed by S2(6).
The House of Lords case of went even further in R v Smith (Morgan) by having the reasonable man take into account all characteristics of the accused (excluding male possessiveness and jealousy which were deemed unacceptable reasons for loss of self control) when deciding on whether the provocation would have made the D do what he did. Thus ALL characteristics would be relevant to the gravity of the provocation AND D’s ability to exercise self control. This reasoning significantly enlarged the scope of the defence of provocation and broadened the earlier tests to such a degree that it diluted the objective test in S3.
In the Privy Council case of A-G for Jersey v Holley it was held that the defendant’s alcoholism was not a matter to be taken into account in determining whether a person with ordinary powers of self control would have done what the defendant did. This left the doors made wide open by Smith (Morgan) slightly ajar. But it could also be interpreted to mean the courts’ reluctance in allowing intoxication as a defence not only in murder but in other crimes as well.
In the Court of Appeal case of Faqir Mohammed the narrow and strict test of a man with ordinary powers of self control were applied to the defendant who had a violent temperament, had strong religious beliefs and had depression. All these factors were not taken into account which wrought further damage on the wider test of excusability espoused by Smith (Morgan). This was surprising considering the doctrine of stare decisis was not followed in this case. Later cases R v James did not consider psychiatric evidence demonstrating that the appelant’s ability to control his behaviour would be impaired and R v Karimi did not take the appelant’s ability to control his behaviour was impaired by post traumatic stress disorder followed Holley rather than Smith (Morgan) and is indicative that this case may be ruled by a later House of Lords case.
In light of these conflicting decisions and the fact that there is mandatory sentencing for murder, there is urgent need of reform so that the law is clear on the standard of self control to be expected. Some like Mackay and Mithcell have called for the defendant to be judged with due regard to all the circumstances including any disability physical or mental from which he suffered removing the difficulties associated with the objective test. Others have called for a scrapping of the defence in light of reforms to mandatory sentencing for murder. The Law Commission’s most recent proposals have called for the removal of the defence from the jury if no reasonable jury properly directed could conclude that the conduct was provocative.
Sexual Offences
The issue of whether the complainant consented or not is central to establishing whether rape actually took place - a discussion in the light of the Sexual Offences Act 2003 - Justin Santiago
At the core of rape is the issue of consent which is a surrounding circumstance which criminalizes otherwise lawful conduct.
S1(1) of the Sexual Offences Act 2003 creates the offence of rape with elements of actus reus and mens rea. The two actus reus elements are penile penetration by A of the vagina, anus or mouth of B and the absence of B’s consent. The twp mens rea elements are intentional penetration and A lacking a reasonable belief in B’s consent.
One of the principal aims of the Sexual Offences Act 2003 was to define consent, something that was done in such a way in the old act which made it difficult to prosecute rapists and which left much of the decision making of whether there was consent or not to the jury. The previous law on rape required proof that the accused either knew or was reckless as to the fact that the victim was not consenting and framed consent in negative terms i.e. what is not consent such as the use of force by the defendant and resistance by the complainant : R v Harling, R v Howard. Later the R v Olugboja approach to consent was to leave the important issue of consent undefined and to direct the jury to consider the difference between consent and mere submission based on good sense, experience and knowledge of human nature and modern behaviour. Under the old law a defendant could avoid liability for rape if he had an honestly held mistaken belief in consent even if that was unreasonable : DPP v Morgan (often called the rapist’s charter).
The approach in Morgan which adopted a subjective approach in line with the general trend of English criminal law emphasised that people ought to be judged on the facts as they believed them to be, and not on facts to which they had not given thought. If an offence requires proof of intention or recklessness in respect of a consequence or circumstance, then it is a matter of "inexorable logic" that a mistaken belief in that respect should negative liability. Whatever the justifications for this as a general approach in the criminal law, it seemed to many that those justifications were outweighed in the case of sexual offences, where the two parties are necessarily in close proximity and where intercourse without consent would be a fundamental violation of the victim and that there should be clear to the accused that the victim does consent.
The SOA 2003 changes this by introducing a requirement that the defendant’s belief in the victim’s consent must be reasonable and this belief is determined with regard to all the circumstances including any steps taken to ascertain whether there was consent. In doing so the SOA 2003 has opted for a reasonableness standard rather than the requirement of knowledge or reckless knowledge as to the lack of consent.
It also tries to define consent by providing a non-exhaustive list of non-consent situations which was intended to illuminate the definition to set clear boundaries for society as to what is acceptable and unacceptable behaviour and which has radically changed the mens rea of rape. The SOA 2003 attempts to interpret consent in positive terms and Section 74 defines consent as “an agreement by choice with the freedom and capacity to make that choice.” This wording discards the "reasonable person" in favour of a general test of what is reasonable in the circumstances which avoided situations where the accused has a learning disability or mental disorder and to judge him on reasonable person’s standard would have been too harsh. In determining whether it is founded on reasonable grounds, the jury are not to conceive of some ideally reasonable person, but they are to put themselves in the position of the assailed person, with his physical and mental equipment, surrounded with the circumstances and exposed to the influences with which he was surrounded and to which he was exposed at the time (Victoria Nourse in "The 'Normal' Successes and Failures of Feminism and the Criminal Law")
The broad reference to "all the circumstances" is an invitation to the jury to scrutinise the complainant's behaviour to determine whether there was anything about it which could have induced a reasonable belief in consent. In this respect the Act contains no real challenge to society's norms and stereotypes about either the relationship between men and women or other sexual situations, and leaves open the possibility that those stereotypes will determine assessments of reasonableness.
Section 75 outlines evidential presumptions to show that there has been no consent including situations where there has been violence towards the victim or a third party, where the victim is detained or asleep or where the victim’s physical disability precluded communication about consent or if a substance had been administered to the victim to overpower or stupefy the victim.
Section 76 outlines conclusive presumptions that there has been no consent where there has been deception as to the nature and quality of the act and/or impersonation of another.
However the SOA 2003 has been criticized for creating some confusion when it attempts to categorise matters of consent and belief in consent according to J.Temkin and A.Ashworth in their article "The Sexual Offences Act 2003 : Rape, Sexual Assaults and the Problems of Consent".
By categorizing the matters of non consent it is not sure whether this reflects a moral hierarchy or is the organizing principle one of clarity and certainty. It should have been made more simple and plain without this categorization. There should not be differences in the way non-consent is obtained whether by the accused deceiving the victim by means of impersonation or whether the accused has sex with the victim when the victim is asleep or unconscious. These situations should only go towards proving whether there was consent or not in line with the definition in Section 74.
There are also no solutions provided to the difficulties surrounding consent obtained where the victim was voluntarily and heavily intoxicated.While setting the threshold for intoxication too high ran the risk of excluding such cases, setting it too low presented its own difficulties. The approach taken precluded the capacity to consent only in situations where the victim has been “stupefied” as required under Section 75(2)(f). There are a whole spectrum of possibilities between these two positions that vary according to numerous factors: the nature of the intoxicant, the means by which it came to be ingested by the victim, the parity of intoxication as between the parties and the extent to which the intoxicant affected the victim's ability to understand her situation and exercise rational decision-making ability. What rape cases involving intoxication demanded, but the law was unable to provide, was clear guidance on the criteria by which to draw the lines of criminal transgression on this continuum.
There is no definition of stupefaction in English law. If we assume that it is intended to carry its ordinary meaning, that is "to render senseless or insentient" then this implies a total loss of sensory perception and could be seen as another way of requiring that the victim be rendered unconscious. If a similarly narrow approach were to be adopted in relation to s.75(2)(f), then the 2003 provision actually leaves the stupefied victim who is subjected to unwanted intercourse with a lesser level of protection than that afforded under the previous law. Under the Sexual Offences Act 1956, the position of the victim intoxicated to the point of stupefaction was easily addressed as her near-unconsciousness was deemed to preclude any possibility of consent. By contrast, under s.75, such a state would merely raise a rebuttable presumption of non-consent.
There is a clear danger that, depending on the interpretation afforded to the concept of stupefaction substances like rohypnol (date rape drug) would potentially be excluded by such an interpretation since it does not necessarily render the victim unconscious at the time of intercourse. Research undertaken into the impact of rohypnol indicates that individuals retain consciousness for a period of several hours after ingestion. During this time, they are able to move, communicate and interact with others, despite appearing to be somewhat confused or disorientated.
Also SOA 203 fails to address where the victim actually encourages the defendant to use violence to enhance the sexual experience, again something which happens in totally innocent situations. This area of the law has not been adequately covered under common law as can be seen in R v Brown where there can be no consent to grievous bodily harm simply based on public policy arguments that people should not cause each other injury for no good reason and R v Emmet where it was held by the Court of Appeal that it was not in the public interest for individuals to inflict harm on each other for the purposes of sexual gratification.
At the core of rape is the issue of consent which is a surrounding circumstance which criminalizes otherwise lawful conduct.
S1(1) of the Sexual Offences Act 2003 creates the offence of rape with elements of actus reus and mens rea. The two actus reus elements are penile penetration by A of the vagina, anus or mouth of B and the absence of B’s consent. The twp mens rea elements are intentional penetration and A lacking a reasonable belief in B’s consent.
One of the principal aims of the Sexual Offences Act 2003 was to define consent, something that was done in such a way in the old act which made it difficult to prosecute rapists and which left much of the decision making of whether there was consent or not to the jury. The previous law on rape required proof that the accused either knew or was reckless as to the fact that the victim was not consenting and framed consent in negative terms i.e. what is not consent such as the use of force by the defendant and resistance by the complainant : R v Harling, R v Howard. Later the R v Olugboja approach to consent was to leave the important issue of consent undefined and to direct the jury to consider the difference between consent and mere submission based on good sense, experience and knowledge of human nature and modern behaviour. Under the old law a defendant could avoid liability for rape if he had an honestly held mistaken belief in consent even if that was unreasonable : DPP v Morgan (often called the rapist’s charter).
The approach in Morgan which adopted a subjective approach in line with the general trend of English criminal law emphasised that people ought to be judged on the facts as they believed them to be, and not on facts to which they had not given thought. If an offence requires proof of intention or recklessness in respect of a consequence or circumstance, then it is a matter of "inexorable logic" that a mistaken belief in that respect should negative liability. Whatever the justifications for this as a general approach in the criminal law, it seemed to many that those justifications were outweighed in the case of sexual offences, where the two parties are necessarily in close proximity and where intercourse without consent would be a fundamental violation of the victim and that there should be clear to the accused that the victim does consent.
The SOA 2003 changes this by introducing a requirement that the defendant’s belief in the victim’s consent must be reasonable and this belief is determined with regard to all the circumstances including any steps taken to ascertain whether there was consent. In doing so the SOA 2003 has opted for a reasonableness standard rather than the requirement of knowledge or reckless knowledge as to the lack of consent.
It also tries to define consent by providing a non-exhaustive list of non-consent situations which was intended to illuminate the definition to set clear boundaries for society as to what is acceptable and unacceptable behaviour and which has radically changed the mens rea of rape. The SOA 2003 attempts to interpret consent in positive terms and Section 74 defines consent as “an agreement by choice with the freedom and capacity to make that choice.” This wording discards the "reasonable person" in favour of a general test of what is reasonable in the circumstances which avoided situations where the accused has a learning disability or mental disorder and to judge him on reasonable person’s standard would have been too harsh. In determining whether it is founded on reasonable grounds, the jury are not to conceive of some ideally reasonable person, but they are to put themselves in the position of the assailed person, with his physical and mental equipment, surrounded with the circumstances and exposed to the influences with which he was surrounded and to which he was exposed at the time (Victoria Nourse in "The 'Normal' Successes and Failures of Feminism and the Criminal Law")
The broad reference to "all the circumstances" is an invitation to the jury to scrutinise the complainant's behaviour to determine whether there was anything about it which could have induced a reasonable belief in consent. In this respect the Act contains no real challenge to society's norms and stereotypes about either the relationship between men and women or other sexual situations, and leaves open the possibility that those stereotypes will determine assessments of reasonableness.
Section 75 outlines evidential presumptions to show that there has been no consent including situations where there has been violence towards the victim or a third party, where the victim is detained or asleep or where the victim’s physical disability precluded communication about consent or if a substance had been administered to the victim to overpower or stupefy the victim.
Section 76 outlines conclusive presumptions that there has been no consent where there has been deception as to the nature and quality of the act and/or impersonation of another.
However the SOA 2003 has been criticized for creating some confusion when it attempts to categorise matters of consent and belief in consent according to J.Temkin and A.Ashworth in their article "The Sexual Offences Act 2003 : Rape, Sexual Assaults and the Problems of Consent".
By categorizing the matters of non consent it is not sure whether this reflects a moral hierarchy or is the organizing principle one of clarity and certainty. It should have been made more simple and plain without this categorization. There should not be differences in the way non-consent is obtained whether by the accused deceiving the victim by means of impersonation or whether the accused has sex with the victim when the victim is asleep or unconscious. These situations should only go towards proving whether there was consent or not in line with the definition in Section 74.
There are also no solutions provided to the difficulties surrounding consent obtained where the victim was voluntarily and heavily intoxicated.While setting the threshold for intoxication too high ran the risk of excluding such cases, setting it too low presented its own difficulties. The approach taken precluded the capacity to consent only in situations where the victim has been “stupefied” as required under Section 75(2)(f). There are a whole spectrum of possibilities between these two positions that vary according to numerous factors: the nature of the intoxicant, the means by which it came to be ingested by the victim, the parity of intoxication as between the parties and the extent to which the intoxicant affected the victim's ability to understand her situation and exercise rational decision-making ability. What rape cases involving intoxication demanded, but the law was unable to provide, was clear guidance on the criteria by which to draw the lines of criminal transgression on this continuum.
There is no definition of stupefaction in English law. If we assume that it is intended to carry its ordinary meaning, that is "to render senseless or insentient" then this implies a total loss of sensory perception and could be seen as another way of requiring that the victim be rendered unconscious. If a similarly narrow approach were to be adopted in relation to s.75(2)(f), then the 2003 provision actually leaves the stupefied victim who is subjected to unwanted intercourse with a lesser level of protection than that afforded under the previous law. Under the Sexual Offences Act 1956, the position of the victim intoxicated to the point of stupefaction was easily addressed as her near-unconsciousness was deemed to preclude any possibility of consent. By contrast, under s.75, such a state would merely raise a rebuttable presumption of non-consent.
There is a clear danger that, depending on the interpretation afforded to the concept of stupefaction substances like rohypnol (date rape drug) would potentially be excluded by such an interpretation since it does not necessarily render the victim unconscious at the time of intercourse. Research undertaken into the impact of rohypnol indicates that individuals retain consciousness for a period of several hours after ingestion. During this time, they are able to move, communicate and interact with others, despite appearing to be somewhat confused or disorientated.
Also SOA 203 fails to address where the victim actually encourages the defendant to use violence to enhance the sexual experience, again something which happens in totally innocent situations. This area of the law has not been adequately covered under common law as can be seen in R v Brown where there can be no consent to grievous bodily harm simply based on public policy arguments that people should not cause each other injury for no good reason and R v Emmet where it was held by the Court of Appeal that it was not in the public interest for individuals to inflict harm on each other for the purposes of sexual gratification.
Homicide
The law governing homicide in England and Wales is a rickety structure set upon shaky foundations – Justin Santiago
The crime of homicide denotes either murder or manslaughter. Murder is the unlawful killing of another human being and is committed with the intention to kill or cause grievous bodily harm. The defences of provocation or diminished responsibility reduced the charge of murder to manslaughter.
The rickety structure and the shaky foundations are as a result of looking at homicide in a very structured manner when the crime itself cuts across a broad range of situations covering everything from accidental killings to full blooded murder. The categorization of homicide into murder and voluntary manslaughter and involuntary manslaughter and the different penalties meted out including the maximum sentence (life imprisonment) for murder and far more discretionary given to sentencing for manslaughter has made it difficult of all parties – the accused, the prosecution, jury and the judges.
It gets even shakier considering a result crime like murder has an unspefici mens rea which is an intention to kill or cause grievous bodily harm : R v Moloney. Two issues of uncertainty crop up here.
Firstly the intention to cause grevious bodily harm does not correspond to the actus reus of the crime i.e. causing the death of another human being. The intention to cause grievous bodily harm is proof of a lesser offence than that charged and applies to constructive crimes whereas murder is a result crime. The fault element does not correspond to the conduct leading to the charge, i.e. the causing of death and the person is liable to conviction for a more serious crime than he foresaw or contemplated and is criticized. This criticism has come from Lord Steyn in R v Powell who also referred to Glanville Williams, Textbook of Criminal Law. As a result defendants are being classified as murderers who are not in truth murderers.
Secondly the inherent difficulties in defining intention. The old definition of murder required malice aforethought. In the 25 years following DPP v. Smith, the definition of intention experienced a turbulent time. This was especially true in a succession of cases--notably R v Smith, Hyam v DPP, R v Moloney, R v Hancock and Shankland, R v Nedrick and R v Woolin.
In DPP v Smith the defendant was found guilty of murder death or grievous bodily harm was foreseen by him as a likely result or natural consequence of his act and therefore this gave an indication of his intention.
In Hyam v DPP, the judges opted for the narrower approach in opting for the test of foresight of highly probable consequences as indicative of intent.
Moloney narrowed down the broad approach in Hyam and held that foresight was merely evidence of intent but was not to be equated with intent. In Moloney the House of Lords equated intention with a two stage objective/subjective approach
1. Was death or really serious injury in a murder case a natural consequence?
2. Did the defendant foresee that consequence as being a natural consequence of his act?
If the jury answered yes to both questions it is a proper inference for them to draw that he intended that consequence.
The House of Lords in Hancock and Shankland disapproved of Lord Bridge’s term ‘natural consequence’ as ambiguous as natural consequences need not be inevitable but approved Moloney in all other aspects. Hancock and Shankland stated that reference should be made to the degree of probability that the prohibited outcome would result from the defendant achieving his primary purpose. The nub of Hancock and Shankland is that the higher the probability, the more possible it is to find that the defendant foresaw it, and therefore he intended it.
Nedrick addressed the ambiguity between Moloney and Hancock and formulated the virtual certainty test which conveyed inevitability and foreseeability in which the jury would infer intention if they felt sure that death or serious bodily harm was a virtual certainty as a result of the defendant’s actions.
The recent decision of the House of Lords in Woollin endorsed with slight amendments the law as stated in the earlier Court of Appeal case of Nedrick by accepting the need for foresight of a virtual certainty barring some unforeseen intervention. The House rejected the conclusion of the trial judge that foresight of a substantial risk of death or serious bodily harm could in certain circumstances be an alternative mens rea to intention as it blurred the line between intention and recklessness. . It has also distanced itself, in the lead judgment of Lord Steyn, from the earlier Hyam formulation of foresight of a probable, or highly probable, consequence as the mens rea for murder.
The law as it stands after R v Woolin is that the question of intention is that the jury may find that a defendant intended an outcome if it was his purpose to cause death or grievous bodily harm and grievous bodily harm or death was a virtual consequence of his act and he knew that grievous bodily harm or death was a virtually certain consequence. Thus it would seem that the law had resolved resolved the subjectivism/objectivism argument by covering a spectrum of the two. The law was also able to give an ordinary meaning to the word intention in the narrow sense of direct intention (defendant’s purpose to achieve the prohibited consequence) and a wider sense of oblique intention (defendant did not desire the consequence but could still be held to have intended it). The desire to include oblique intention was seen as necessary to broaden murder to cover instances where death was not intended at the time of execution but which happened.
There are several criticisms with this approach by Cathleen Kaveny in her article "Inferring Intention from Foresight" suggesting that intention should not be equated with any degree of foresight. She argues that foresight and intention are quite distinct mental states and no degree or type of foresight can be equated with intention and has argued that English Law should adopt the Scottish concept of ‘wicked recklessness” as a distinct prong of the mens rea of murder.
The Law commission in its report entitled "Murder, Manslaughter and Infanticide" has suggested that the two-category structure of the general law of homicide is no longer fit for purpose and there is a proposal to replace the two tier structure with a three tier structure in descending order of seriousness first degree murder, second degree murder, manslaughter and specific homicide offences such as assisting suicide and infanticide. First degree would encompass intentional killings or killing through an intention to do serious injury with an awareness of a serious risk of causing death. Second degree murder would encompass killing through an intention to do serious injury or killing where there was an awareness of a serious risk of causing death, coupled with an intention to cause either some injury, fear of injury or risk of injury. Second degree murder would also be the result when a partial defence of provocation, diminished responsibility or killing pursuant to a suicide pact is successfully pleaded to first degree murder.
Manslaughter would encompass death caused by a criminal act intended to cause injury or where the offender was aware that the criminal act involved a serious risk of causing injury or where there was gross negligence as to causing death.
However the categorization does not eliminate the problems arising out of the difficulties in defining provocation and diminished responsibility which would reduce first degree murder to second degree murder.
Also the crime of manslaughter does not resolve the problems associated with the presence of a mens rea without the intention to kill whereas manslaughter is a crime involving death of the victim.
Attempts to follow a US style categorization of homicide may not be the best solution as it complicates the definitions further. An alternate classification into a single crime of unlawful killing may be a better alternative coupled with discretionary sentencing based weighing aggravating factors such as deliberate intent, exceptional brutality or cruelty, significantly endangering public safety or committed against a public official engaged in enforcing the law as well as mitigating factors such as diminished responsibility, provocation, recklessness, negligence or unlawful acts. This would make the laws in line with countries like Finland which has relatively low numbers of unlawful killing.
The crime of homicide denotes either murder or manslaughter. Murder is the unlawful killing of another human being and is committed with the intention to kill or cause grievous bodily harm. The defences of provocation or diminished responsibility reduced the charge of murder to manslaughter.
The rickety structure and the shaky foundations are as a result of looking at homicide in a very structured manner when the crime itself cuts across a broad range of situations covering everything from accidental killings to full blooded murder. The categorization of homicide into murder and voluntary manslaughter and involuntary manslaughter and the different penalties meted out including the maximum sentence (life imprisonment) for murder and far more discretionary given to sentencing for manslaughter has made it difficult of all parties – the accused, the prosecution, jury and the judges.
It gets even shakier considering a result crime like murder has an unspefici mens rea which is an intention to kill or cause grievous bodily harm : R v Moloney. Two issues of uncertainty crop up here.
Firstly the intention to cause grevious bodily harm does not correspond to the actus reus of the crime i.e. causing the death of another human being. The intention to cause grievous bodily harm is proof of a lesser offence than that charged and applies to constructive crimes whereas murder is a result crime. The fault element does not correspond to the conduct leading to the charge, i.e. the causing of death and the person is liable to conviction for a more serious crime than he foresaw or contemplated and is criticized. This criticism has come from Lord Steyn in R v Powell who also referred to Glanville Williams, Textbook of Criminal Law. As a result defendants are being classified as murderers who are not in truth murderers.
Secondly the inherent difficulties in defining intention. The old definition of murder required malice aforethought. In the 25 years following DPP v. Smith, the definition of intention experienced a turbulent time. This was especially true in a succession of cases--notably R v Smith, Hyam v DPP, R v Moloney, R v Hancock and Shankland, R v Nedrick and R v Woolin.
In DPP v Smith the defendant was found guilty of murder death or grievous bodily harm was foreseen by him as a likely result or natural consequence of his act and therefore this gave an indication of his intention.
In Hyam v DPP, the judges opted for the narrower approach in opting for the test of foresight of highly probable consequences as indicative of intent.
Moloney narrowed down the broad approach in Hyam and held that foresight was merely evidence of intent but was not to be equated with intent. In Moloney the House of Lords equated intention with a two stage objective/subjective approach
1. Was death or really serious injury in a murder case a natural consequence?
2. Did the defendant foresee that consequence as being a natural consequence of his act?
If the jury answered yes to both questions it is a proper inference for them to draw that he intended that consequence.
The House of Lords in Hancock and Shankland disapproved of Lord Bridge’s term ‘natural consequence’ as ambiguous as natural consequences need not be inevitable but approved Moloney in all other aspects. Hancock and Shankland stated that reference should be made to the degree of probability that the prohibited outcome would result from the defendant achieving his primary purpose. The nub of Hancock and Shankland is that the higher the probability, the more possible it is to find that the defendant foresaw it, and therefore he intended it.
Nedrick addressed the ambiguity between Moloney and Hancock and formulated the virtual certainty test which conveyed inevitability and foreseeability in which the jury would infer intention if they felt sure that death or serious bodily harm was a virtual certainty as a result of the defendant’s actions.
The recent decision of the House of Lords in Woollin endorsed with slight amendments the law as stated in the earlier Court of Appeal case of Nedrick by accepting the need for foresight of a virtual certainty barring some unforeseen intervention. The House rejected the conclusion of the trial judge that foresight of a substantial risk of death or serious bodily harm could in certain circumstances be an alternative mens rea to intention as it blurred the line between intention and recklessness. . It has also distanced itself, in the lead judgment of Lord Steyn, from the earlier Hyam formulation of foresight of a probable, or highly probable, consequence as the mens rea for murder.
The law as it stands after R v Woolin is that the question of intention is that the jury may find that a defendant intended an outcome if it was his purpose to cause death or grievous bodily harm and grievous bodily harm or death was a virtual consequence of his act and he knew that grievous bodily harm or death was a virtually certain consequence. Thus it would seem that the law had resolved resolved the subjectivism/objectivism argument by covering a spectrum of the two. The law was also able to give an ordinary meaning to the word intention in the narrow sense of direct intention (defendant’s purpose to achieve the prohibited consequence) and a wider sense of oblique intention (defendant did not desire the consequence but could still be held to have intended it). The desire to include oblique intention was seen as necessary to broaden murder to cover instances where death was not intended at the time of execution but which happened.
There are several criticisms with this approach by Cathleen Kaveny in her article "Inferring Intention from Foresight" suggesting that intention should not be equated with any degree of foresight. She argues that foresight and intention are quite distinct mental states and no degree or type of foresight can be equated with intention and has argued that English Law should adopt the Scottish concept of ‘wicked recklessness” as a distinct prong of the mens rea of murder.
The Law commission in its report entitled "Murder, Manslaughter and Infanticide" has suggested that the two-category structure of the general law of homicide is no longer fit for purpose and there is a proposal to replace the two tier structure with a three tier structure in descending order of seriousness first degree murder, second degree murder, manslaughter and specific homicide offences such as assisting suicide and infanticide. First degree would encompass intentional killings or killing through an intention to do serious injury with an awareness of a serious risk of causing death. Second degree murder would encompass killing through an intention to do serious injury or killing where there was an awareness of a serious risk of causing death, coupled with an intention to cause either some injury, fear of injury or risk of injury. Second degree murder would also be the result when a partial defence of provocation, diminished responsibility or killing pursuant to a suicide pact is successfully pleaded to first degree murder.
Manslaughter would encompass death caused by a criminal act intended to cause injury or where the offender was aware that the criminal act involved a serious risk of causing injury or where there was gross negligence as to causing death.
However the categorization does not eliminate the problems arising out of the difficulties in defining provocation and diminished responsibility which would reduce first degree murder to second degree murder.
Also the crime of manslaughter does not resolve the problems associated with the presence of a mens rea without the intention to kill whereas manslaughter is a crime involving death of the victim.
Attempts to follow a US style categorization of homicide may not be the best solution as it complicates the definitions further. An alternate classification into a single crime of unlawful killing may be a better alternative coupled with discretionary sentencing based weighing aggravating factors such as deliberate intent, exceptional brutality or cruelty, significantly endangering public safety or committed against a public official engaged in enforcing the law as well as mitigating factors such as diminished responsibility, provocation, recklessness, negligence or unlawful acts. This would make the laws in line with countries like Finland which has relatively low numbers of unlawful killing.
Insane and Non-Insane Automatism
Distinguishing between external and internal causes is an unsatisfactory and deficient way of addressing the issue of insane and non-insane automatism - Justin Santiago
Insane and non-insane automatism are defences to a charge of murder as they negate the necessary mens rea for the crime which is the intention to kill or cause grevious bodily harm.
The courts have rationalized that cause of the state of mind is the main factor for distinguishing insane and non-insane automatism. Because of the wide differences in the burden of proof and the outcome if the plea is successful the courts have rationalized subtle differences between internal and external causes. However this becomes very difficult as there is an overlap between the two and the fact that involuntariness is common to both cases. The right way to look at these issues is to refrain from categorizing mental states and instead focus on the level of control in the hands of the defendant that would mitigate the crime.
The definition of insanity as propounded in the M’Naghten rules requires that there be a defect of reason caused by a disease of the mind such that the defendant did not know the nature and quality of his act. Insanity is a general defence to all crimes (unable to form mens rea) and A will be found not guilty by reason of insanity and confined to a mental hospital at her majesty’s pleasure.
For there to be a disease of the mind it has to be caused by an internal factor and is prone to recur : Bratty v AG for Northern Ireland and whether the disease is curable or incurable, transitory or permanent : R v Kemp. Where the defendant raises a plea of insanity it is on a balance of probabilities and if successful will result in a special verdict of not guilty by reason of insanity and the defendant is admitted to a special hospital where he might be detained indefinitely. The internal factor argument extends the reach of M’Naghten Rules to such diverse persons such as epileptics : R v Campbell, diabetics, PMS sufferers : R v Reynolds and it seems illogical to label all people suffering from such conditions as insane.
Automatism on the other hand is the movement of muscles without any control by the mind such as a spasm, reflex action or convulsion or an act done by a person who is not conscious of what he is doing and the relevant cases are Broome v Perkins and R v Charlson. The defence of automatism negates the actus reus of the crime and leads to a complete acquittal.
The cause of automatism is due to an external factor such as consumption of medication or alcohol, a blow to the head or the administration of an anaesthesic which will usually have a transitory effect. The issue of self induced automatism further provides proof that the cause of it is an external factor, within one’s control : R v Bailey. When the defendant raises a plea of non-insane automatism the burden to disprove is on the prosecution and if successful will result in a complete acquittal.
In the case of diabetes, the internal external factor argument becomes confusing. A diabetic who suffers from hypoglycaemia (low blood sugare) as a result of an overdose of insulin cannot avail himself of the defence of insanity as the insulin is an external factor : R v Quick whereas if the same diabetec suffers from hyperglycaemia (high blood sugar) as a result of failing to take insulin he can plead insanity: R v Hennesy although the insulin is still an external factor in this case.
A blow on the head (external factor) may inflict permanent damage in which case that damage will be an internal factor, giving rise to a defence of insanity. The internal factor argument excludes defects of reason caused by dissociative states resulting from external factors such as psychological blows : R v Rabey or rape which caused post traumatic stress disorder : R v T when in reality these diseases are likened to depression which are certified medical conditions and should rightly be internal factors.
The courts have also seems to have neglected to address evidence of purposive conduct in disproving insanity : Bratty v AG for Northern Ireland where the accused pleaded insanity due to psychomotor epilepsy yet undertook acts that had every appearance of being controlled by the brain.
In R v Burgess it was argued that what was important was the uncontrolled recurrence of the mental condition not the fact that the cause was internal or external. This follows from R v Sullivan where the nature of the disease was irrelevant and what was important was that it had affected the mental faculties. This approach associated with level of control of the criminal is deemed to be more practical rather than establishing the mental state of the criminal in establishing a defence.
Insane and non-insane automatism are defences to a charge of murder as they negate the necessary mens rea for the crime which is the intention to kill or cause grevious bodily harm.
The courts have rationalized that cause of the state of mind is the main factor for distinguishing insane and non-insane automatism. Because of the wide differences in the burden of proof and the outcome if the plea is successful the courts have rationalized subtle differences between internal and external causes. However this becomes very difficult as there is an overlap between the two and the fact that involuntariness is common to both cases. The right way to look at these issues is to refrain from categorizing mental states and instead focus on the level of control in the hands of the defendant that would mitigate the crime.
The definition of insanity as propounded in the M’Naghten rules requires that there be a defect of reason caused by a disease of the mind such that the defendant did not know the nature and quality of his act. Insanity is a general defence to all crimes (unable to form mens rea) and A will be found not guilty by reason of insanity and confined to a mental hospital at her majesty’s pleasure.
For there to be a disease of the mind it has to be caused by an internal factor and is prone to recur : Bratty v AG for Northern Ireland and whether the disease is curable or incurable, transitory or permanent : R v Kemp. Where the defendant raises a plea of insanity it is on a balance of probabilities and if successful will result in a special verdict of not guilty by reason of insanity and the defendant is admitted to a special hospital where he might be detained indefinitely. The internal factor argument extends the reach of M’Naghten Rules to such diverse persons such as epileptics : R v Campbell, diabetics, PMS sufferers : R v Reynolds and it seems illogical to label all people suffering from such conditions as insane.
Automatism on the other hand is the movement of muscles without any control by the mind such as a spasm, reflex action or convulsion or an act done by a person who is not conscious of what he is doing and the relevant cases are Broome v Perkins and R v Charlson. The defence of automatism negates the actus reus of the crime and leads to a complete acquittal.
The cause of automatism is due to an external factor such as consumption of medication or alcohol, a blow to the head or the administration of an anaesthesic which will usually have a transitory effect. The issue of self induced automatism further provides proof that the cause of it is an external factor, within one’s control : R v Bailey. When the defendant raises a plea of non-insane automatism the burden to disprove is on the prosecution and if successful will result in a complete acquittal.
In the case of diabetes, the internal external factor argument becomes confusing. A diabetic who suffers from hypoglycaemia (low blood sugare) as a result of an overdose of insulin cannot avail himself of the defence of insanity as the insulin is an external factor : R v Quick whereas if the same diabetec suffers from hyperglycaemia (high blood sugar) as a result of failing to take insulin he can plead insanity: R v Hennesy although the insulin is still an external factor in this case.
A blow on the head (external factor) may inflict permanent damage in which case that damage will be an internal factor, giving rise to a defence of insanity. The internal factor argument excludes defects of reason caused by dissociative states resulting from external factors such as psychological blows : R v Rabey or rape which caused post traumatic stress disorder : R v T when in reality these diseases are likened to depression which are certified medical conditions and should rightly be internal factors.
The courts have also seems to have neglected to address evidence of purposive conduct in disproving insanity : Bratty v AG for Northern Ireland where the accused pleaded insanity due to psychomotor epilepsy yet undertook acts that had every appearance of being controlled by the brain.
In R v Burgess it was argued that what was important was the uncontrolled recurrence of the mental condition not the fact that the cause was internal or external. This follows from R v Sullivan where the nature of the disease was irrelevant and what was important was that it had affected the mental faculties. This approach associated with level of control of the criminal is deemed to be more practical rather than establishing the mental state of the criminal in establishing a defence.
Objective recklessness
Does objective recklessness still have a role to play? - Justin Santiago
Although strict objectivity is no longer demanded in recklessness, there is still a need for an objective element to crimes involving recklessness. This is to enable parties to avoid escaping liability based on their foreseeability alone. Thers is therefore a middle of the road approach taken by judges to enable some level of objectivity in certain crimes such as those involving causing injury to persons.
Mens rea is concerned with the state of mind of one who has been criminally accused. There are two states of mind which are intention and recklessness of which recklessness is less culpable than intention. A person who does not intend to cause a harmful result may take an unjustifiable risk of causing it and this is would constitute recklessness.
Crimes which involve recklessness are found in Section 47 of the Offences Against the Person Act 1861 – assault occasioning actual bodily harm and the mens rea required is intention or recklessness as to the common assault or battery.
Recklessness has always been a contentious point and the courts have fluctuated between a subjective and an objective approach in determining the standard of recklessness. The subjective approach or Cunningham recklessness (after the case of R v Cunningham) requires proof of a taking of an unjustifiable risk and proof that the defendant was aware of the existence of the unreasonable risk. It is a subjective form of risk focusing on the defendant’s own perception of risk.
This was the accepted definition of risk until the controversial decision in R v Caldwell where it was stated that cases involving criminal damage requires proof of an obvious risk and the defendant has not given any thought to the possibility of there being any such risk or has recognised that brisk but nevertheless has gone on to do it. The key word here is obvious which means a reasonable person would have seen the risk even if the defendant did not. This was known as the objective test or Caldwell recklessness.
This direction contained a lacuna wherein D would not be reckless if he had considered the matter and decided that there was no risk. Caldwell also failed to allow for conviction on the basis of D having no state of mind as to the risk of the proscribed harm. This had the potential of working harshly in cases of young people and those whose capacity to see risk was diminished for reasons which involved no fault on their part.
This was the case in Elliot v C (a minor) where a 14 year old schoolgirl with a learning disability was charged with criminal damage for taking the risk of lighting up a fire for warmth which caused damage, a risk which a reasonable person would have foreseen. The harshness of the Caldwell test which is purely objective was evident in this case. In the words of Sir John Smith, “the decision sets back the law concerning the mental element in criminal damage in theory to before 1861.”
Until R v G and Another, objective and subjective recklessness operated side by side with Caldwell recklessness applying to criminal damage and Cunningham recklessness applying to all other offences involving and element of recklessness.
In R v G and Another two boys added 11 and 12 threw some lit newspapers under a bin which caused 1 million pounds worth of damage. The House of Lords overturning the decisions of the Court of Appeal and the trial judge reviewed the history of the term recklessness and unanimously overruled Caldwell but it did not strictly follow Cunningham. The reformulation of the subjective test was based on the Draft Criminal Code which translated into a test which asked whether the defendant was aware of the risk of the damage/destruction of property and in the circumstances whether it was unreasonable for him or her to take that risk. This added an element of objectivity into the Cunningham test for criminal damage.
Other reformulations of the Cunningham test have been evident in cases involving injury to the person that involved some element of objectivity.
The mens rea for a S. 47 offence follows R v Savage confirming R v Roberts is the same as that required for assault and for battery i.e. intention or recklessness as to the causing of the apprehension of the use of immediate and unlawful force or intention or recklessness as to the application of unlawful force. There is no requirement of intention or foresight in respect of the injury caused by the assault or battery. The application of the principle of half mens rea makes it easier to establish liability under S.47. A defendant who has the actus reus and mens rea for common law assault or battery would also be liable for the more serious offence under S.47 even if the harm is greater than he planned or foresaw.
The mens rea for a S.20 offence follows DPP v Parmenter confirming R v Mowatt that the standard of recklessness is subjective based upon what the defendant actually foresaw. Foresight of consequences was required but not foresight of their magnitude. The test of recklessness required for a section 20 offence is foresight of a risk of some harm albeit not harm of the severity that actually occurred. This catches defendants who foresee that their actions will cause some harm but who do not expect it to be so serious that it amounts to grievous bodily harm.
Further suggestions have been put forth to stike a compromise between the subjectivism of Cunningham and the objectivism of Caldwell. These include endowing the reasonable man with the personal physical characteristics of the particular accused (Simistar and Sullivan in Criminal Theory and Doctrine, pg 152) which was supported in the case of R v G.
There is also the argument that there is a place for objective tests in situations where a person may reasonably fail to foresees a consequence that follows from his act (blameless inadvertence) or offences of strict liability which do not require intention, recklessness or even negligence as to one or more elements in the actus reus. This means the defendant can be convicted even if he was unaware of the risk but ought to have been aware of it. In such cases Caldwell recklessness may have some application.
Although strict objectivity is no longer demanded in recklessness, there is still a need for an objective element to crimes involving recklessness. This is to enable parties to avoid escaping liability based on their foreseeability alone. Thers is therefore a middle of the road approach taken by judges to enable some level of objectivity in certain crimes such as those involving causing injury to persons.
Mens rea is concerned with the state of mind of one who has been criminally accused. There are two states of mind which are intention and recklessness of which recklessness is less culpable than intention. A person who does not intend to cause a harmful result may take an unjustifiable risk of causing it and this is would constitute recklessness.
Crimes which involve recklessness are found in Section 47 of the Offences Against the Person Act 1861 – assault occasioning actual bodily harm and the mens rea required is intention or recklessness as to the common assault or battery.
Recklessness has always been a contentious point and the courts have fluctuated between a subjective and an objective approach in determining the standard of recklessness. The subjective approach or Cunningham recklessness (after the case of R v Cunningham) requires proof of a taking of an unjustifiable risk and proof that the defendant was aware of the existence of the unreasonable risk. It is a subjective form of risk focusing on the defendant’s own perception of risk.
This was the accepted definition of risk until the controversial decision in R v Caldwell where it was stated that cases involving criminal damage requires proof of an obvious risk and the defendant has not given any thought to the possibility of there being any such risk or has recognised that brisk but nevertheless has gone on to do it. The key word here is obvious which means a reasonable person would have seen the risk even if the defendant did not. This was known as the objective test or Caldwell recklessness.
This direction contained a lacuna wherein D would not be reckless if he had considered the matter and decided that there was no risk. Caldwell also failed to allow for conviction on the basis of D having no state of mind as to the risk of the proscribed harm. This had the potential of working harshly in cases of young people and those whose capacity to see risk was diminished for reasons which involved no fault on their part.
This was the case in Elliot v C (a minor) where a 14 year old schoolgirl with a learning disability was charged with criminal damage for taking the risk of lighting up a fire for warmth which caused damage, a risk which a reasonable person would have foreseen. The harshness of the Caldwell test which is purely objective was evident in this case. In the words of Sir John Smith, “the decision sets back the law concerning the mental element in criminal damage in theory to before 1861.”
Until R v G and Another, objective and subjective recklessness operated side by side with Caldwell recklessness applying to criminal damage and Cunningham recklessness applying to all other offences involving and element of recklessness.
In R v G and Another two boys added 11 and 12 threw some lit newspapers under a bin which caused 1 million pounds worth of damage. The House of Lords overturning the decisions of the Court of Appeal and the trial judge reviewed the history of the term recklessness and unanimously overruled Caldwell but it did not strictly follow Cunningham. The reformulation of the subjective test was based on the Draft Criminal Code which translated into a test which asked whether the defendant was aware of the risk of the damage/destruction of property and in the circumstances whether it was unreasonable for him or her to take that risk. This added an element of objectivity into the Cunningham test for criminal damage.
Other reformulations of the Cunningham test have been evident in cases involving injury to the person that involved some element of objectivity.
The mens rea for a S. 47 offence follows R v Savage confirming R v Roberts is the same as that required for assault and for battery i.e. intention or recklessness as to the causing of the apprehension of the use of immediate and unlawful force or intention or recklessness as to the application of unlawful force. There is no requirement of intention or foresight in respect of the injury caused by the assault or battery. The application of the principle of half mens rea makes it easier to establish liability under S.47. A defendant who has the actus reus and mens rea for common law assault or battery would also be liable for the more serious offence under S.47 even if the harm is greater than he planned or foresaw.
The mens rea for a S.20 offence follows DPP v Parmenter confirming R v Mowatt that the standard of recklessness is subjective based upon what the defendant actually foresaw. Foresight of consequences was required but not foresight of their magnitude. The test of recklessness required for a section 20 offence is foresight of a risk of some harm albeit not harm of the severity that actually occurred. This catches defendants who foresee that their actions will cause some harm but who do not expect it to be so serious that it amounts to grievous bodily harm.
Further suggestions have been put forth to stike a compromise between the subjectivism of Cunningham and the objectivism of Caldwell. These include endowing the reasonable man with the personal physical characteristics of the particular accused (Simistar and Sullivan in Criminal Theory and Doctrine, pg 152) which was supported in the case of R v G.
There is also the argument that there is a place for objective tests in situations where a person may reasonably fail to foresees a consequence that follows from his act (blameless inadvertence) or offences of strict liability which do not require intention, recklessness or even negligence as to one or more elements in the actus reus. This means the defendant can be convicted even if he was unaware of the risk but ought to have been aware of it. In such cases Caldwell recklessness may have some application.
Wednesday, January 28, 2009
Innocent until proven guilty
The Kugan Case,Malaysia - Justin Santiago
“Don’t regard criminals as heroes.” – Syed Hamid Albar, Home Minister, January 28, 2009.
Syed Hamid Albar was referring to Kugan, who had died in police custody after being charged with car theft. A person in police custody is a suspect not a criminal. In law a person has to be proven guilty of a crime to be judged a criminal. This process of proving someone guilty is conducted through the court system. Kugan was a suspect and not a criminal.
In fact Kugan was clearly a victim of some really hard hits to his body suffered while under police detention. The police who were suspected of the crime have not been charged let alone detained.
“Don’t regard criminals as heroes.” – Syed Hamid Albar, Home Minister, January 28, 2009.
Syed Hamid Albar was referring to Kugan, who had died in police custody after being charged with car theft. A person in police custody is a suspect not a criminal. In law a person has to be proven guilty of a crime to be judged a criminal. This process of proving someone guilty is conducted through the court system. Kugan was a suspect and not a criminal.
In fact Kugan was clearly a victim of some really hard hits to his body suffered while under police detention. The police who were suspected of the crime have not been charged let alone detained.
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