Criminal Law Practical Skills - Assignment Example

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. Mens rea elements is often tested on the basis of the assessment as to the individual that has been accused actually had any foresight in relation to the prohibited consequences as well as the desire to ensure that the consequences eventually occurred (Gorr & Sterling, 1992, p 18). 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 recognizing the inadvertence as a particular mental state. Furthermore, the next ten years, the House of Lords also made an attempt to salvage the ruling in Caldwell through their interpretation in R v G [2003] UKHL 50 (Dormann, Doswald-Beck & Kolb, 2003, p 17). Kimel argues that the ruling made by the House of Lords actually brought back the subjective test so that the various defendants could be judged based on their experience, age, as well as understanding and not just on the hypothetical reasonable individuals standard who is likely to have better understanding and knowledge. Furthermore, Kimel is of the school of thought that the test that was adopted by the House of Lords has actually remained hybrid due to the fact that the actual credibility of the individual accused denying understanding as well as knowledge will definitely be judged based on the objective standard of what is expected from an individual who has the same abilities and age as that of the individual who has been accused (Field & Lynn, 1993, p 127). Kimel’s critical evaluation of the two decisions is persuasively argued, this is because the law that relates to recklessness has actually undergone milestones since its very first enactment. Moreover, the adoption of the objective test in the context of recklessness for the criminal damage started to actually look more like an absurdity that increasingly caused several injustices. Indeed, Kimei is of the school of thought that this could be the reason as to why the House of Lords made a decision to actually take this particular brave step. Moreover, in the case of R v G [2003] UKHL 50 that overruled Caldwell and consequently established that subjective recklessness was actually the type that could be used for all of the offences (Davies, 2004, p 8). Kimei’s arguments are therefore valid and should therefore be incorporated in ensuring that the law relating to recklessness is improved. Conclusion This paper has discussed the arguments that have been advanced in relation to the law of recklessness. The two case studies that have been discussed have actually shown the milestone that has been taken in relation to the law of recklessness. Moreover, Kimei is of the same school of thought that the case studies are a milestone in the law related to recklessness, but believes that ruling given by the House of Lords is a hybrid test and not just an objective test. References Dormann, Knut; Doswald-Beck, Louise & Kolb, Robert. Elements of War Crimes Cambridge University Press 2003). Davies, Mitchell, Tales from the (Thames) River Bank: R v G and Another. (Jo, of Criminal Law, 2004, 1-9) Gorr, Michael J. & Sterling Harwood, eds. Controversies in Criminal Law. (Westview Press 1992). Kimel, Doris, From Promise to Contract: Towards a Liberal Theory of Contract (Hart Publishing 2003). Kimel, Doris, 'Inadvertent Recklessness in Criminal Law' 120. (Law Quarterly Review 548, 2004) Field, Stewart & Lynn, Mervyn, Capacity, Recklessness and the House of Lords (CLR 127, 1993). van den Haag, Ernest .Punishing Criminals: Concerning a Very Old and Painful Question. (Basic Books 1978). Read More