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Criminal Law - Assignment Example

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Name University Course Instructor Date Criminal Law Introduction Recklessness has been adequately recognized by the criminal law as the elements of mens rea in order to ensure that liability is fully established. It actually indicates a lesser culpability than that of the intention, but rather a more culpability than that of the criminal negligence…
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Criminal Law Assignment
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Download file to see previous pages The court is expected to carry out three different kinds of tests such as objective test where the particular court imputes the elements of mens rea based on the fact that any of the reasonable individuals that possess the same kind of abilities and knowledge as is possessed by the person that is accused in this case is expected to have such kind of elements. The second test is the subjective; in this test the court is expected to make an establishment as to what the person accused was thinking of at the time he caused the actus Reus. Finally, another test is the hybrid that involves both objective and subjective tests (van den Haag, 1978, p 27). These arguments was advanced by Dori Kimel in his case comment, ‘Inadvertent recklessness in criminal law’ (2004) LQR 548, where she analyses and critically evaluates the decisions of the House of Lords in R v G [2003] UKHL 50; [2004] 1 A.C. 1034 and R. v Caldwell (James) [1982] A.C. 341. This paper will therefore briefly identify the key arguments advanced by Kimel in her analysis of the two cases. Further, it will discuss whether Kimel’s critical evaluation of the two decisions is persuasively argued. Arguments advanced by Kimel in his analysis The facts of the case was that there were two boys who were aged 12 and 11 years, they are reported to have been camping without any particular permission by their parents when they decoded to go to the backyard of a nearby shop in the morning, they had newspapers that they had lit. The newspapers that they had lit are reported to have caused fire in nearby bin that was located against the wall of the shop, the fire immediately spread up the wall and eventually onto the roof. The fire caused an estimated damage of $1m. The two children made an arguments that they were expecting the fire to eventually burn itself out and did not give any thought to the risk that could be caused incase the fire spread (Kimel, 2003, p 21). In the judgment of the House of Lords, Lord Bingham actually saw the need of modifying the definition of Lord Diplock in order to ensure that infancy of the defence was accounted for which was containing the mischievous discretion notion. This rule required the various courts to make a consideration of the extent the children who were aged from eight or more years could be able to have a clear understanding of the differences that existed between wrong and right. Therefore, the test that was stipulated by Diplock of obviousness was expected to actually operate in unfair manner for the two children incase they were eventually held to the same particular standards the reasonable adults were held to. The courts finally held that the defendant must be clearly shown to have indeed subjectively appreciated a given risk to the property and health of the other party but eventually carried on any particular event before they could actually be said to be completely criminally culpable. This ruling abolished the historical objective reckless test that had been previously recognized under the famous R v Caldwell (Kimel, 2004, p 548). Dori Kimel has indicated that recklessness is actually the particular critical mental element that exists within the Critical Damage Act of the year 1971. However, ten years following the enactment of the particular legislation, the House of Lords in the context of R v Caldwell made a controversial interpretation of the recklessness objectively as well as ...Download file to see next pagesRead More
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