Criminal Law and Approach of the Court - Essay Example

? Criminal Law The issue in this questions requires an analysis of the fact of the test of reasonable person being applied in respect of matters of criminal law and the position that it holds in respect of the same. The approach of the court in respect of the matter at hand will be discussed and the importance of the same would be considered. The most important thing that needs to be point out in respect of criminal law is that it is based upon actus reus, mens rea and the absence of defences. The element of a reasonable person is required in respect of mens rea and therefore the other element that are required for the offences would not be discussed. Mens rea has been defined as a state of mind, intention or recklessness which is required for a certain crime. There is an ongoing debate and argument in respect of subjectivists and objectivists who tend to argue in different directions. The subjectivists argue that to the minimal level of serious crimes, the mental element that should be required should be awareness of the person’s actions and perceiving the surrounding circumstances as well as the results that would flow from the actus reus. On the contrary, the objectivists the argument rests on the fact that it should be sufficient mens rea if it is proved that a reasonable person would have foreseen the circumstances as well as the results that would flow from the actus reus and would therefore not be dependent on the awareness of the defendant. There have been competing claims which have been put forward by both. In respect of the subjectivists the main argument vests on the fact that there was self governance on the part of the individual who committed the crime and went contrary to the law. The objectivists on the other hand pointed out to the fact that there should be criminal punishment if it is found that his inadvertence was in respect of a substantial and obvious risk of the proscribed harm, which should have been perceived by the defendant. Even though there have been academic opinion that ‘the torch of orthodox subjectivism carried by Glanville Williams and Smith and Hogan and then by the Law Commission should be douse’ (Ashworth, POCL, p.253) it is still what is being followed in respect of serious offences and has been reiterated in the recent case of G1 where Lord Bingham said ‘it is a salutary principle that conviction of serious crime should depend on proof not simply that the defendant caused (by act or omission) an injurious result to another but that his state of mind when so acting was culpable. This after all, is the meaning of the familiar rule actus non facit reum nisi mens sit rea. The most obviously culpable state of mind is no doubt an intention to cause the injurious result, but knowing disregard of an appreciated and unacceptable risk of causing an injurious result or a deliberate closing of the mind to such risk would be readily accepted as culpable also. It is clearly blameworthy to do something involving a risk of injury to another...’ Despite of such an obvious favour being given to the subjectivist approach, there have been objectivist elements in respect of serious offences that have been laid down expressly by House of Parliament in particular sexual offences and certain offences related to money laundering. The element of intention are central to mens rea, however, in respect of the current situation the element of recklessness would be discussed. The situation in respect of criminal law has been that for crimes it was either intention or recklessness that would lead to construal of imposition of liability. In respect of recklessness there are two main elements that need to be construed, the first one being that of subjective recklessness and the other is that of objective recklessness. For establishing subjective recklessness the test that was laid down in Cunningham2 needs to fulfilled, which basically requires that an unjustifiable risk was taken as well as proving the fact that the defendant was aware of the unreasonable risk and its existence. The reason for terming it subjective is because of the fact that perception of the defendant is looked into. The courts in the case of Cunningham opined that ‘in our opinion, the word “maliciously” in a statutory crime postulates foresight of consequence’. Thus actual existence of the harm and then taking the risk is what is considered to be a necessary element for establishing subjective recklessness. (Parameter)3 Closing of mind as stipulated by Lord Lane ‘Knowledge or appreciation of a risk of the [proscribed harm] must have entered the defendant’s mind even though he may have suppressed it or driven it out’ would lead to establishment of recklessness (Stephenson)4. It has been stipulated that unless the Parliament expressly stipulates otherwise the test of subjective recklessness as laid down for the Criminal Damage Act 1971 on the Draft Criminal Coded, cl 18(c) should be followed. The definition that was laid down in Cunningham was the one that had been accepted by the courts, however, there had been a period in the 1980s where the House of Lords made a turn towards objective recklessness. The decision was made in Caldwell5 whereby Lord Diplock pointed out that recklessness in respect of property would be construed where a person damages damage or destroys by way of doing ‘(1) an act which in fact creates an obvious risk that property would be destroyed or damaged and (2) when he does the act he (i) either has not given any thought to the possibility of there being any such risk or (ii) has recognized that there was some risk involved and has nonetheless gone on to do it’. Thus under the requirements stipulated above there was the requirement of obvious risk. Further elements are that defendant’s failure to consider that there was a possibility of risk or defendant’s knowledge of the risk would constitute to be effective means of construing liability. One of the unresolved question that triggered by way of the operation of such recklessness was the fact that there was problem of lacuna whereby if the defendant did consider the circumstances and wrongly construed that there was no risk then what would happen in such a situation? Another problem that was associated in respect of the test was the fact that there inconsistencies in respect of the application of different tests for offences. An example in this respect was the case of W (A Minor) v. Dobley6 whereby person would be held to be liable for criminal damage and not for damaging the eye of a person on the basis of the Caldwell test. Another problem that was cited with the approach was that in respect of serious offences, to say the least, awareness of the defendant must be looked into and his state of mind should be considered to be vital when establishing or construing liability in respect of an offence. On the basis of Caldwell a person could be held liable even if he did not have the state of mind for the risk that was associated with the harm. This was cited to be an important reason whereby injustice would be caused and therefore was said to be the downfall in respect of the objective test of objective recklessness. The harsh application of the test on young people and their ability to distinguish or appreciate the risk that was associated with a certain act. One of the cases that was cited to support the contention was that of Stephenson7 whereby a person who was suffering from schizophrenia could not be said to be aware of the harm unlike a reasonable person who would have been aware of the risk that was associated with such an action. Caldwell was subsequently reconsidered and overruled in G by the House of Lords, whereby it was stated that the Law Commission Report No. 29 the basis of the Criminal Damage Act 1971, had clearly laid down the intent of the parliament. However, the majority in Caldwell had erred whereby they construed wrongly that reckless in respect of section 1 was different from maliciously. Thus the subjective test of recklessness whereby the defendant should have foreseen the risk and still gone on to do it was the decisive criterion. The House of Lords stated that in Caldwell the House had not been pointed out the Law Commission Report and therefore the decision was based on ‘fragile foundations’. Thus it was thought that departing from the decision was just. It was said by Lord Bingham to be ‘neither just nor moral’ and further as ‘cynical strategy’ by Lord Steyn. After the important decision of G the only problem that lies is the fact that since Lord Bingham merely constrained himself to criminal damage, what now remains of the Caldwell test and of its application to other matters. It was applied in respect of Data Protection Act, 1984 but was subsequently repealed by virtue of the Data Protection Act 1998. The applicability of Caldwell was suggested by Halsbury Laws to be in respect of false answers being provided if summoned for jury service, or as pointed out by Blackstone’s Criminal Practice (2003), reckless making of declaration which turns out to be false; reckless provision of false information in respect of compliance with the obligations laid down under the Misuse of Drugs Act 1971; or the reckless statement which is misleading or a deceptive statement. It is important to point out at this point in time that in Attorney-General’s Reference (no. 3 of 2003) the Court of Appeals stated that even though it had been stated in G that the test was limited to Criminal Damage, it had laid down general guidelines whereby a person could not be said to held accountable for risks that he had not forecseen. In respect of a comparison between objective and subjective recklessness there have been arguments that have been laid down by both sides, in fact, there have been solutions that have been put forward so as to do away with the purported harshness of the objective recklessness, so as to attain a compromise between the two side. One of the forms of tests that have been put forward is that of ‘practical indifference’. Indifference is said to occur where a person who takes an unreasonable risk so as to cause a harm which has been forbidden, but hopes that the result would not occur, can be said to be reckless. However, indifference in respect of a specific harm, if proved, can be said to be an aggravating factor but not something which construed to be an element so as to be considered as a definition of fault. There have been reforms that have been suggested to the current position that has been laid down by way of the Cunningham test by the Law Commission, however, it is important to note that even though the objective recklessness criterion can be said to have caused discrepancies and subsequently led to removal by way of subjective recklessness, there is the possibility and room for modification whereby a test which tends to take into account the possibility of compromise would be a viable solution then to effectively focus on the test of a reasonable person in respect of criminal as effective implementation of such a test has led to problems and injustices being caused in the past and the same has been caused where the subjective recklessness criteria has been used, as injustice might have flowed from such a test. Thus the area of a reasonable person in respect of criminal was at a time pivotal and did indeed play a vital part, the reform of such a test has been made which is being consistently followed, however, such an approach can be changed as and when the circumstances require and the reasonable person can be said to be the centre point again. References ORMEROD, D. C., SMITH, J. C., & HOGAN, B. (2008). Smith and Hogan criminal law. Oxford, Oxford University Press Read More