Discussing the Situations in Criminal Law - Assignment Example

The borderline between intention and recklessness is too vague given that it has such central importance in criminal law. Discuss. To make a charge stay currently requires to find the party guilty of recklessness or intent. Currently intention is a central requirement of criminal law since prosecution requires the party to be found guilty of intent. If the party is found not to be guilty of intent a serious crime could be committed and the guilty party could walk away without punishment. Therefore intention is a central part of British law. In British law intention is one of the kinds of mens rea (Latin = Guilty Mind) when it is carried out with an actus reus (Latin = Guilty Act) then a crime is committed. The guilty mind leads the guilty party to carry out the guilty act. Intention leads the guilty party to have prior foresight of consequences that will take place should the act be carried out. It is different from recklessness since on a subjective basis, there remains foresight without the hope of actually bringing about results. The problem in the courts of law is that the borderline between intention and recklessness is too vague. The court has to decide the extent of the desire to carry out the act and convert recklessness into intention. In DPP v Smith (1961) AC 290, the test was that the individual was taken to foresee and intend to bring about the likeliest actions if he carried out his intentions. Recklessness is undertaking an act with unjustifiable risk. There are two categories of recklessness. One, 'subjective' recklessness; In this case the defendant understands that a risk may occur if a certain action is carried out, still despite knowing this he still chooses to take that action ignoring the results of his actions. This is often seen when the guilty party decides to drive under the influence knowing full well that his actions could cause an accident. Two, 'objective' recklessness arises when it is apparent to everyone apart from the defendant that there was a risk. Therefore the risk is so apparent that despite the defendant claims not to have considered the risk this is irrelevant. The concept of subjective recklessness can be linked with the policy of punishing someone that is morally responsible for his actions. This concept also considers the frame of mind of the defendant. It is not usually a good idea to elaborate on a basic direction of intent: see R v Woollin [1999] 1 Cr App R 8, HL. Certainty does not necessarily lead to the intention for murder although intention can lead to murder. Intention has many different levels at the most serious intention can lead to murder. The degrees of intention range from pure intention to recklessness dependant on the nature and seriousness of the crime. When the most serious degree of culpability, justifies the most serious degree of punishment both elements are found in the defendant's mind. (a subjective test) An individual who plots and carries out an act of crime is thought of as a more serious threat than the one whom behaves recklessly. An opportunist might find a sudden opportunity to steal something or become so angry that they harm another. Intention can also arise from the common law principle as well. One of the most critical sources in the early development of the law on recklessness was an academic piece of work. In his book Outlines of Criminal Law' (published in 1902), Professor Kenny discussed the definition of "maliciously", with specific reference to arson. A large amount of the information in the book was founded on the judgement in the case of R v Harris. At the beginning of the century the fundamental state of the law concerning recklessness was that it was a subjective test that determined the mens rea in criminal acts where the necessary mens rea for the defendant was to cary out an act. In the case of R v Cunningham (1957) , the defendant took money from a gas meter that resulted in ripping the meter from the wall and leaving the gas pipes exposed. Coal gas escaped into the basement of the house next door and caused harm to a woman living there. The defendant was convicted of "unlawfully and maliciously administering a noxious thing so as to endanger life" contrary to s23 Offences Against the Person Act (1861) . In any criminal act, malice must be considered not in the old definition of a vague sense of misconduct in general but as necessitating either (1) A direct intention to perform the specific type of damage that was carried out; or (2) recklessness as to whether such damage should take place or not (i.e., the defendant has foreseen that the specific type of damage might be carried out and yet has still carried on despite the risk of it). The policy problem for those working in the criminal justice system is that when the guilty plots their crime, the individual might be aware of several probable and possible results. All of these results could be avoided through stopping the crime or carrying out the crime instead of stopping the crime. So the decision to carry out the present plan of action means that all of the foreseen results are to a certain degree intentional. Kaveny, C.M., Inferring Intention from Foresight, (2004) LQR 120. The Law Commission of England and Wales, Report on the Mental Element in Crime, Law Commission Report No. 89, (1978) Criminal Law Revision Committee of England and Wales, Offences Against the Person Cmnd 7844, 14th Report, (1980) The Law Commission of England and Wales, Codification of the Criminal Law, Law Commission Report No. 143, (1985) Norrie, A., Oblique Intent and Legal Politics, (1989) CLR 793. Pedain, A., Intention and the Terrorist Example, (2003) CLR 549. Smith, J.C., R v Woollin (1998) CLR 890. Michael Allen, textbook on Criminal law 2007 Andrew Ashworth, Principles of Criminal law 2006 2. Critically evaluate the impact of the decision of the House of Lords in Kennedy 2007 UKHL 38 on the law relating to causation. Causation is the relationship between action and result. Where causation is involved it will usually result in harm to an individual. In the case of Kennedy action was met by ministering the illegal dose of heroin. Kennedy was convicted of manslaughter, but due to uncertainty in the case it was referred back to the Court by the Criminal Cases Review Commission under section 9(1) of the Criminal Appeal Act 1995. The Court of Appeal didn't use the test of causation that it should always adopt in the case of manslaughter. In the case of manslaughter, causation needs to be based on general principles. If Kennedy made the deceased administer the drug or acted with the deceased to administer the drug then the chain of causation would not be breached. The difficulty is in establishing the chain of causation from the accused to the victim. The question of whether the chain of causation can be broken in manslaughter was a tricky question. Causation is an essential element of the Actus Reus in crimes. The prosecutor did not firmly establish causation in Kennedy's case and this was disastrous since it meant that the crime was not committed even though Kennedy's mens rea' was there. In Kennedy's case the action of providing the lethal dose of heroin even though he did not administer it resulted in death. Due to Kennedy preparing the lethal dose the victim died, but had Kennedy administered the drug then the causation would be clear. The ruling of Kennedy's attracted large amounts of criticism as there is no case for secondary liability therefore the deceased had to be the principal offender. Although Kennedy admitted possession of heroin which is a crime it was the injection administered by the deceased and not the possession that led to the death of the deceased. Therefore self injection of heroin is not a crime. To establish manslaughter by an unlawful and dangerous act (constructive manslaughter) it must be proved that Kennedy caused a criminal and harmful act that led to the death of the other party. If Kennedy had injected the other party with the drug and he had died as a result the conviction for manslaughter will follow. Even in the case of the other party selecting the chosen drug, preparing it and Kennedy injecting it then a result of manslaughter would be clear. However Kennedy did not administer the lethal dose therefore the chain of causation is not clear. The unlawful act in such cases is the offence contrary to s23 of the Offences Against the Person Act 1861 - maliciously administering a noxious thing. In Dias (2001), a case that involved facts similar to those in Kennedy, the Court of Appeal agreed that the analysis in Kennedy was flawed but added that there could be cases where the supplier of the drug is found guilty of manslaughter as a principal. In Rogers (2003), the supplier of the lethal drug held a tourniquet to the deceased arm whilst the deceased administered the lethal dose of heroin. In this case the Court of Appeal, whilst agreeing that self-injection was not an unlawful act, decided that the supplier of the drug had 'actively participated' in administering the injection and was therefore guilty of an offence contrary to s 23. This provides us with a wide definition of the term 'administered'. It also displays the difficulty in proving the clear chain of causation in Kennedy's case. There have been a number of cases similar to Kennedy which, when studied, have confused the causation chain. The way the courts approach these cases have ended up stretching some basic criminal law principles to convict and uphold the convictions of individuals who have participated in supplying drugs. In the first appeal to the Court of Appeal ([1999] 1 Cr App R 54), Kennedy who was found guilty of manslaughter the courts founded this on the grounds that he had participated as a secondary party to the deceased unlawful act of self injection. A large amount of evidence was founded on the deceased supply of the syringe that the Courts believed led to the victim being persuaded to inject himself. Consequently an individual who supports another to commit crime might be guilty of being an accessory. Therefore due to the encouragement offered and not on the grounds of said encouragement this was the direct result of death. However this approach has not been taken in other cases, other conclusions have done little to bring clarity in this area of law. In Dias ([2001] EWCA Crim 2986), a case with facts very similar to Kennedy, the Court of Appeal denied D's manslaughter conviction on the fundamental grounds that self-injection is not a criminal act, therefore there is no crime that D could have supported. It also wasn't possible for the prosecution to depend on the unlawful supply of heroin to V by D as V's self injection could have led to an intervening action destroying the chain of causation between the supply of heroin and the V's resulting death. Therefore the original conviction of the Court of Appeal in Kennedy (1999) basically undermined the foundation of complicity in the criminal law: an accessory is one who supports, participates, counsels or procures a crime: at the minimum there has to be an actus reus of the original crime. The Court of Appeal in Rogers ([2003] 2 Cr App R 10) stated its agreement with the conviction in Dias quoting 'in so far as that reasoning was based on self injection being an unlawful act, it was wrong.' Brandon, R. & Davies, C. (1973) Wrongful Imprisonment: Mistaken Convictions and their Consequences London: George Allen & Unwin. Criminal Appeal Act 1995 (c35) London: HMSO ISBN 0 10 543595 3. Criminal Justice Act 2003 (c.44) London: HMSO. ISBN 0 10 544403 0. Greer, S. (1994) 'Miscarriages of Criminal Justice Reconsidered' The Modern Law Review 57:1. R v RODGERS [2003] EWCA Crim 945 Stuart is an alcoholic. He is in the pub one day when he sees two friends. Vernon and Bill. he calls them over, saying "Join me, I'm on my ninth pint and I could use some company." Vernon and Bill sit with Stuart, and they all drink three pints of strong lager. The conversation turns to their old experiences. Vernon says, "do you remember when I was a boxer i could have been a contender, you know" and raises his fists. Stuart sees this out of the corner of his eys. Scared, Stuart punches Vernon in the face. Vernon's nose is broken, and he falls, he breaks his wrist attempting to break his fall. Bill shouts, "you stupid drunk, look what you've done". Stuart turns to him and smashes a glass on the table. he pushes the glass into Bill's stomach. Bill falls to the ground bleeding. Stuart steps over him and walks towards the exit of the pub. howver, before he reaches the door, he turns around, runs back to Bill and kicks him before running away. Bill dies. Stuart is arrested the next day and claims to remember nothing of the events of the day before. Discuss any criminal liability that arises and comment on the law you have applied. Generally an individual has to intend to break the law before they can be convicted of a crime. A crime could also be carried out by an individual acting recklessly and not giving any thought to their actions. In Stuart's case even though he did not start out with the intention of killing Bill his actions which were under the influence were reckless and therefore led to the death of Bill. The Law Commission carried out a detailed review of the law on intoxication before publishing its 1992 consultation paper Intoxication and Criminal Liability (LCCP 127). After consultation, the Commission's final recommendations were documented in its 1995 report Legislating the Criminal Code: Intoxication and Criminal Liability (LC 229). However, the Commission's Draft Criminal Law (Intoxication) Bill appended to the 1995 report has never been presented to Parliament. The reasons given for this is that it was too complicated for the purposes of [its Offences against the Person] Bill". Over a decade after the publication of the 1995 report was released the criminal law system believed that codification with clarification and modifications was still the correct approach. The current law that relates to criminal liability when a defendant is intoxicated is complex and difficult to apply. At present, crimes that require evidence of a culpable frame of mind are defined as either "offences of specific intent" or "offences of basic intent". The defendants self induced intoxication is relevant to the consequence of his or her liability if the crime charged is a crime of specific intent. However if the defendant is charged with an offence of basic intent it isn't. It is not always evident what culpable frames of mind must always be proved, which leads to an unclear decision of the relevance of the defendants self induced intoxication. The definitions themselves are complex and often puzzling, Also there is usually no "intent" and this needs to be evident. As in Stuart's case it was obvious that he did not start out with the intention to kill Bill, but due to his reckless behaviour it resulted in Bill's death. Despite the present law being clear on the relevance of involuntary intoxication to criminal liability what actually can be defined as involuntary intoxication is not clear cut. Statistically it is bleak since research shows that a large majority of crimes are committed under the influence of drink or drugs. (Dingwall, 2006, chapter 2). In usual circumstances the law does not punish harmful conduct. In the majority of cases, especially with more serious crimes like in this case, there is an added requirement that the defendant has to intend to cause harm or behaves in a reckless manner, but still with the result being damage to another individual. We can see that in Stuart's case although intent may not have been an issue he did behave recklessly and as a result Bill died. If the defendant causes the prohibited damage but, is not in the right frame of mind then he is allowed an acquittal. The law makes it quite specific that 'drunken intent is still an intent' and the jury make the decision on these grounds. (Sheehan and Moore [1975] 2 All ER 960). However if the defendant argues that he wouldn't have carried out the act if he was sober and yet still had the right frame of mind he will not be allowed an acquittal (Kingston [1994] 3 All ER 353). The case becomes more complex where the defendant is so intoxicated that he cannot form any intent at all. In ordinary circumstances if an individual doesn't have the right frame of mind the present criminal law principle would entitle that individual to an acquittal. Despite this fact there are a lot of people who would argue that intoxication should be treated as an exception because the defendant is usually responsible for his intoxicated frame of mind. This does not address the fact that he was still unable to attain the standard requirement for criminal liability. Currently British law states that evidence of intoxication can be taken into consideration for some offences, but not for others. (the case which is often cited for authority for this is DPP v Majewski [1976] 2 All ER 142 although the history of the doctrine goes back a long way: Singh, 1933). Crimes are split into two categories - those necessitating a 'specific' intent and those necessitating a 'basic' intent. If the crime necessitates a 'specific' intent, e.g. murder, then the jury might take into consideration evidence for intoxication. Consequently if the court takes evidence for intoxication this will help them to decide if the defendant has the right frame of mind or not. However this doesn't mean that each defendant who faces court action for'specific' intent is going to be acquitted if he was intoxicated at the time of the crime. The evidence will be taken into consideration and only if he did not meet the necessary frame of mind will he be acquitted (Sheehan and Moore [1975] 2 All ER 960). In Stuart's case he was not of the intent in causing any harm to his friends when he invited them over. When Stuart sees Vernon raising his fists out of the corner of his eyes he feels that he is at risk which is why he punches Vernon. Stuart does not seem to be acting in his right frame of mind due to being under the influence. When Bill shouts at Stuart, Stuart loses his temper and ends up pushing a glass into Bill. The situation gets out of control, but the query in this case comes when Stuart approaches the door then returns to kick Bill. Stuart's reckless behaviour causes Bill to die, but there was an obvious intent on the part of Stuart when he returns to kick Bill once again. The court would probably find Stuart guilty of manslaughter. Dingwall, G. (2006) Alcohol and Crime Cullompton: Willan Publishing Law Commission (1995) Intoxication and Criminal Liability Law Commission Report No.229 London: HMSO Law Commission (1993) Intoxication and Criminal Liability Law Commission Consultation Paper No.127 London: HMSO Singh, R.U. (1933) 'History of the Defence of Drunkenness in English Criminal Law' 49 Law Quarterly Review 528 Read More