Foundation of Criminal Law - Assignment Example

?FOUNDATION OF CRIMINAL LAW of Foundation of Criminal Law Under the criminal law,a crime constitutes of both the physical and mental element (mens rea). Mens rea is an element of criminal responsibility which states that there is a mental element in a criminal conduct; guilty mind; criminal intent; a wrongful or guilty purpose or wilfulness. The prosecution must be able to prove mens rea; that is, the accused had an appropriate knowledge, criminal intelligence, intention, or recklessness at the relevant time.1 Recklessness is one of the four likely mental state classes that constitute mens rea. Recklessness may constitute offenses that involve considerable danger to another person or against property.2 N.P. Metcalfe and A.J. Ashworth, in their case commentary, Arson: mens rea - recklessness whether property destroyed or damaged’ (2004) Crim L R 369, analyse and critically evaluate 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 briefly identify the key arguments that were advanced in the commentary and discuss whether Metcalfe and Ashworth’s critical evaluation of the tow decisions is persuasively argued. In the case of R v Caldwell, Metcalfe and Ashworth comment that throughout the judgement of R v Caldwell, Lord Diplock appeared to only address his mind to the class of defendant who would normally have the capacity of foreseeing the risk. They thus argue that this narrow focus in the case is what subsequently led to the arising of the problems in this case. They further comment that the House of Lords did not consider particular classes of defendant who would not be able to foresee any risk, even though they could have been asked to think about foreseeing.3 Metcalfe and Ashworth also made a commentary in the decision of the House of Lords relating to mens rea and which was quite related to the case of R v Caldwell; this was the case of R v G. In this case, the issue was whether the children of eight or more years are able to have an understanding of the difference between right and wrong, and if the test of “obviousness” might operate fairly for the defendants who were of 11 and 12 years age if they were held to similar standard as reasonable adults.4 The House of Lords in this respect stated that a person can be considered to act “recklessly” if: he is in a circumstance that he is aware that a risk will or exists; in a result when he is aware that a risk will happen; and if it occurs to him that it is unreasonable to take risk, in circumstances that are known to him.5 Moreover, in their commentary, Metcalfe and Ashworth noted how the House of Lords in R v G departed from the House of Lords’ decision in R v Caldwell. Metcalfe and Ashworth argue that Lord Diplock’s ruling in R v Caldwell could not be supported by statutory interpretations, as both Lord Bingham and Lord Steyn clearly spelt out in R v G. Besides, they comment that the considerations in R v Caldwell not only misinterpreted the statute, but also went against the principle that require subjective mens rea for serious crime conviction, and which led to unfair results that may not be either just or moral. They also point out how application of the decision in R v Caldwell would amount to injustice as it violates the UN Convention on the Rights of the Child.6 Metcalfe and Ashworth acknowledge in their commentary that the meaning of “recklessness” cannot only be applied in the Criminal Damage Act as had seemed to be implied in R v Caldwell. They note that Lord Bingham in the case of R v G though that Lord Diplock and other majority members in R v Caldwell were so set in the course to an extent that they could not have reached a different outcome regarding the case involving the capacity of children and young persons. Metcalfe and Ashworth argue that their was stubbornness in the interpretation of “reckless” in R v Caldwell and other similar cases in 1980s, a situation that was a great source of potential injustice. They observe that both R v Caldwell and R v G brought up the question of legal policy.7 According to them, the claim that it is unfair to apply objective standard to standard citizens was quite invalid because there are very few cases where the court might be unable to find that the defendant had some fleeting awareness regarding a particular circumstance. They fault Lord Diplock when he sought to argue the social and moral case for expanding “recklessness” definition in R v Caldwell.8 According to them, this was done in undifferentiated manner and in a way that gave no thought to the children liability or other circumstances that are awkward. They argue that House of Lords decision in R v G, though suggested general trend towards subjective principles of liability, the position was not clear yet. They are of the view that the courts are continuing to uphold strict liability for offences that might carry prison sentences of relatively smaller length. Metcalfe and Ashworth’s critical evaluation of the two decisions are persuasively argued. They have remarkably commented on the aspect of mens rea, and particularly recklessness. They have used two cases that are related to each other, and which the House of Lords made decisions that were seemingly contradicting. The two cases are majorly on the “subjective or objective” characterisation; that is, whether criminal liability should have subjective or objective elements.9 They have pointed out how Lord Diplock and other majority made decisions that could not be supported by statutory interpretation, and went against the principle that require subjective mens rea for serious crime conviction. They persuasively argue how R v G departed from the decision in R v Caldwell and also how “recklessness” was defined in both cases. They also persuasively brought to the fore how the issues of “recklessness” raises the legal policy question. They finally conclude by stating that the social and moral arguments relating to mens rea and recklessness in particular are not all stacked on one side.10 Bibliography BOOKS Burchell J and J Milton, Principles of Criminal Law, (Lansdowne 2005) Smith O, Criminal Law, (Sweet & Maxwell 2012) JOURNAL ARTICLE Stewart F & L Mervyn, “The Capacity for Recklessness” (1992) 12 Legal Studies 74. CASE LAWS R v G [2003] UKHL 50; [2004] 1 A.C. 1034 R. v Caldwell (James) [1982] A.C. 341. Read More